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State Legislative DP Notes

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There are legislative happenings in Alabama, Florida, Mississippi, and Iowa on the death penalty.

In Florida, it seems that they are barrelling down the road to a single-juror veto law, and nobody is even raising the alternative of a true unanimity law.  Why the state's prosecutors are not up in arms about this just baffles me.

Seriously, folks, do you really want a system where a hard-core opponent of the death penalty can lie on Witherspoon-Witt voir dire to get on the jury, cross his arms in deliberation and just say "no, no, no, no matter what," and impose his will over the judgment of the other 11 jurors?  That is what you will get if this train isn't stopped. 

Require unanimity one way or the other or at least a majority for a life verdict, and otherwise declare a mistrial and retry the penalty phase with a new jury.

The Alabama Senate voted 30-1 to end judicial overrides of jury penalty verdicts in capital cases.  Brian Lyman has this story for the Montgomery Advertiser.  SB16 provides that it is not retroactive.  It deletes the word "advisory" before "verdict" and requires the judge to sentence according to the verdict

Existing law says that a jury can return a death verdict by a vote of 10 jurors or a life imprisonment verdict by a majority vote.  If neither of those thresholds is met (i.e., between 6-6 and 9-3), "the trial court may declare a mistrial of the sentence hearing."  That's fine except for the "may."  Could a judge allow a minority of jurors to prevail over the majority by declining to declare a mistrial?  Perhaps readers familiar with how things actually work in Alabama can enlighten us.
The obvious chief criticism that can be made against current Eight Amendment jurisprudence is the ambiguous nature of the "evolving standards of decency" established in Trop v. Dulles.  Besides the fact that it is not self-evident and that reasonable people can disagree widely as to what those standards are or ought to be, it remains a puzzle why some classes of offenders are categorically barred from certain punishment while others must prove their lack of culpability during sentencing.  To be sure, the Supreme Court has provided some guidance on the matter, but as I have discussed before the doctrine remains confused and unintelligible. 

The next chapter of the evolving standards journey is a proposed bill in Indiana, which would bar capital punishment for any offender who has a severe mental illness.  The proposed bill essentially requires a finding of insanity albeit with an added provision that a designated serious mental illness that impairs a defendant's ability to exercise rational judgment in relation to his conduct also qualifies for exemption from the death penalty.  The enumerated serious mental disorders, which the statute defers defining to the American Psychiatric Association, includes schizophrenia, bipolar disorder, major depressive disorder, post-traumatic stress disorder and traumatic brain injury.     

To anyone paying attention the problems of the proposed bill are obvious. This is no more than a thinly veiled product's test for punishment that, if successfully enacted, would undoubtedly include vast numbers of defendants and substantial monies for mental health experts (who, by the way, cannot as a profession agree as to what constitutes a serious mental illness).   Moreover, it is unclear that whatever characteristics people with serious mental illnesses have that qualifies them for reduced culpability under this evolving standard should not also apply with equal force to LWOP, lengthy prison sentences  or incarceration whatsoever- a residual but fundamental problem more broadly with the evolving standards doctrine itself. 

At the end of the day the issue revealed by this latest iteration of the evolving standards of decency doctrine is that it is at war with the tenets of Lockett and the notion of individual sentencing.   On the one hand, we have a line of precedent that says juries are the ultimate arbiters of punishment decision making (Ring, Lockett) because they must make both a factual and moral determination regarding what is appropriate punishment for any individual defendant.  On the other hand we have precedent and proposed legislation that suggests that juries are untrustworthy to make those decisions.    The question that begs from modern Eighth Amendment jurisprudence is why do we have juries anyway? 

What's an Abolitionist to Do?

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There must be something in the water in Ohio.  

First, it gave us the Wendell Callahan multiple child murder  -- Callahan having been out on the street to commit this atrocity courtesy of a slickly engineered early release from his federal drug trafficking sentence. More than any single case last year, Callahan's stuck a fork in the prospect for broad-based federal sentencing reduction:  Once the previously glossed-over but stomach-churning human costs of early release hit the newspaper, sentencing reformers had to face reality.

Now, Ohio gives us the quintessential case for preserving capital punishment as the only even arguably just sentence in some cases.  The redoubtable Doug Berman brings us the story: "The hardest case for death penalty abolitionists:  convicted murderer who keeps murdering while in prison."
The Federalist Society teleforum with Bill Otis and Carol Steiker, previously noted here, here, and here, is now available as a podcast.
I do not yet have a link to the full recording of yesterday's teleforum debate about the impact of the recent elections on the future of the death penalty.  In the interim, I want to post what I wrote out for my opening statement.

As Kent noted in following up, one of the central questions in this discussion is:  Who gets to decide the issue?  In a matter of this moral gravity, should ordinary voters have a chance to decide for themselves (as they did in Nebraska, Oklahoma and California), or should the decision be reserved to the ruling classes?

I addressed that in my opening remarks, as you can see after the break.
A year ago, the U.S. Supreme Court reversed decisions of the Kansas Supreme Court overturning death sentences in two cases, the infamous Carr brother and Sidney Gleason.  The decision is here.  CJLF's press release is here.  CJLF's brief is here.

Today, Amy Renee Leiker reports for the Wichita Eagle:

A divided Kansas Supreme Court said Friday that it will uphold the death sentence of a man it previously overturned, according to a news release.

The U.S. Supreme Court ordered the Kansas Supreme Court to take a second look at Sidney Gleason's case early last year after hearing oral arguments in it and the cases of killers Jonathan and Reginald Carr in October 2015. A Barton County jury gave Gleason a death sentence for killing Mikiala "Miki" Martinez and her boyfriend, Darren Wornkey, in 2004 to keep her from telling authorities about an armed robbery.

"The decision today affirms the conviction and death sentence based on a Barton County jury's findings and moves this case along one step further. The wheels of justice are turning," Kansas Attorney General Derek Schmidt said in an e-mailed statement after the ruling was announced.
The decision is here.


The Federalist Society teleforum with Bill Otis and Carol Steiker is going on now.  See Bill's post earlier today.  Explaining the difference between legislative action on this issue and popular votes, Professor Steiker actually said, in essence, that the ignorant regular people don't know what they are doing, unlike their enlightened and informed representatives.

Actually, I think it tends more the other way.  The anti-death-penalty movement has the benefit of funding to create an entire organization just to do [dis]information, plus they have left-wing academia on their side.  With these advantages, they have snowed the legislatures with a lot of misleading half-truths.  The pro side has no such organization.  (CJLF's budget is comparable to DPIC's but death penalty information is maybe 5% or our work versus 100% of theirs.)  The few academics who publish articles refuting the anti-DP myths are bullied out of the field.  That is why we aren't seeing much in the deterrence area, for example.

Another factor is that legislators tend to be financially well-off people who live in safe neighborhoods and are much less likely to become victims of violent crime.  It is easier to be soft on crime when it is unlikely to affect you or anyone you know, but mostly those people on the wrong side of the tracks.

I will continue to trust the Great Unwashed more than I do the politicians.  The history of the initiative here in California shows that the people are not always right, but they are right more often than the politicians. 

The teleforum will be available as a podcast later.  We will post a notice here when it is.
Scott Calvert and Jon Kamp report for the WSJ:

A Delaware prison uprising ended Thursday with a longtime correctional officer dead, after a tactical team stormed a building taken over by inmates who had held four employees hostage the day before.
*                  *                  *
Prison officials offered no details on the death of Sgt. Steven Floyd, 47 years old, a 16-year veteran who was found unresponsive and pronounced dead at the James T. Vaughn Correctional Center in Smyrna, Del., early Thursday morning.

Delaware Gov. John Carney called for an investigation to determine what happened and said the responsible parties would be held accountable.

And how exactly are you going to hold them responsible, Governor Carney, if it turns out that the group includes persons already sentenced to life in prison?  Give them another life sentence?  Make it "consecutive"?  Lives are issued one to a customer; there is no consecutive.

Delaware has the death penalty in theory, but it does not have it in practice.  The Delaware Supreme Court wrongly held that Hurst v. Florida rendered the state's death penalty law unconstitutional.  At the time, I asked the rhetorical question, "Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?"  Alas, the answer is no.

How about pushing through a bill to not only restore the death penalty but to expedite the review process?
I will have the privilege today of talking with Prof. Carol Steiker of Harvard Law School, a leading scholar and abolitionist, about the implications of last November's election for the future of the death penalty.  The topic is described by the Federalist Society as follows:

In recent decades, there has been much study and debate in the criminal justice community regarding capital punishment and its continued use in most jurisdictions in the United States. Some argue that years of litigation and growing cost have contributed to a new fragility in support for the death penalty and point to polling that reflects decreased enthusiasm for it.  Others assert the November 2016 election results at the state and federal levels demonstrate capital punishment continues to be firmly backed by the public and will remain in place indefinitely. 

The program starts at 2 pm EST.  The call-in number is 888-752-3232.

Green Light for the Habeas Fast Track

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When the Antiterrorism and Effective Death Penalty Act of 1996 was enacted, the "fast track" under Chapter 154 was thought to be among the primary reforms.  In essence, states which provided qualified and adequately funded counsel for their state collateral reviews in capital cases (which is not constitutionally required) were promised an expedited trip through federal habeas corpus.

Many obstacles have prevented the implementation of this chapter as originally conceived.  First, the original chapter had a hostile reception in the courts, as the courts which would be subject to its deadlines misconstrued it to avoid applying it.  In 2006, Congress amended the law to abrogate some specific misinterpretations and to take the decision of whether a state qualified away from the conflicted habeas courts and give it to the U.S. Attorney General with review by the D.C. Circuit.  The AG was further charged with adopting regulations to implement the statute.
As noted in the News Scan today, U.S. Magistrate Judge Michael Merz in Ohio issued this decision preliminarily enjoining the use of the present Ohio protocol, which is similar to the one upheld by the U.S. Supreme Court in Glossip v. Gross in 2015.  The parties stipulated that the Magistrate Judge rather than the District Judge could make rulings such as this in this case.

How can a district court come to a different result than the Supreme Court?  The Supreme Court decision had two independent bases.  One part was an affirmance of the district court decision in that case based on the evidence before that court.  A different court with a different evidentiary record might come to a different conclusion.

The other part of the Supreme Court decision, though, is not so easily avoided.  Glossip says on page 13 of the slip opinion:

The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that Oklahoma's lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.
That requirement should have completely shut down method-of-execution litigation as a means of delaying executions.  After all, no state today intentionally uses a method of execution that is substantially more painful than available alternatives.  The "Catch-22" strategy of claiming that a state's lethal injection protocol has an unreasonable risk of severe pain in comparison to an alternative and then pressuring drug companies to cut off the alternative should have ended with Glossip.

But Judge Merz doesn't get it.
Ed Royce, chairman of the House Foreign Affairs Committee has this op-ed in the WSJ with the above title.

With less than a month remaining in office, President Obama is racing to free 19 more detainees from the terrorist prison at Guantanamo Bay. If history is any guide, this means that dangerous jihadists will be released to countries ill-equipped to handle them.

While many wondered whether Mr. Obama would fulfill his 2008 campaign promise to close Gitmo by breaking a bipartisan law barring him from bringing detainees to the U.S., the House Foreign Affairs Committee has remained focused on the president's push to empty out the prison through reckless transfers to other countries.
The correct path to emptying Gitmo seems rather obvious.  The lesser detainees have already been released or transferred.  The major ones, for the most part, have been in custody long enough as to no longer have value for interrogation for intelligence purposes.  What do we do with them, if we don't want to keep them in Gitmo or transfer them to foreign governments?

They should not be on American soil; they should be in it.  Why is KSM still alive?

The military tribunals were set up to be swift.  Unlike the independent Article III judiciary, they are under the command of the commander-in-chief.  So order them to get it done.
The federal district court in Vermont has denied a defense motion to strike the US Attorney's Office's Notice of Intent to Seek the Death Penalty.  The court's 57-page Memorandum Opinion is here.

The court essentially agreed with the defendant that the death penalty as presently administered falls short of constitutional standards, but held that, "Institutional authority to change this body of law is reserved to the Supreme Court."

This is a reminder of why it was so important to prevent President Obama from filling Justice Scalia's seat with a jurist who would be (relatively) more open to abolitionist arguments, and even more important to defeat Sec. Clinton with a candidate whose robust support for the death penalty is not in doubt.  

Client Control and Conceding Guilt

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Today the U.S. Supreme Court declined to take up the case of Tyler v. Louisiana, No. 15-8814.  Tyler's complaint is that his lawyers ignored his direction to focus on the guilt aspect of the case and instead focused solely on penalty, effectively conceding his guilt. 

I have more sympathy with Tyler's claim than I do with most ineffective assistance claims.  There is a fundamental principle in the attorney-client relationship that the client chooses the goals and the attorney uses his professional judgment regarding the best way to achieve the client-chosen goals.  I have letters from death row complaining that, on appeal, the client has chosen a "give me liberty or give me death" goal, directing the lawyer to focus solely on the guilt verdict, and the lawyer has ignored the direction.

In the Tyler case, though, some of the reporting is leading people to believe that the guilt case against Tyler was thin and his lawyers effectively conceded the guilt of a person who might well be innocent.  After the break, I will quote a portion of the state's brief in opposition on the actual state of the evidence.
Another controversy relating to the execution of Ronald Smith concerns use of the three-drug protocol with midazolam (Versed) as the first drug.  This is the same protocol that was at issue in Glossip v. Gross in 2015.  Kent Faulk of the Birmingham News reports:

During the 34-minute execution at the Holman Correctional Facility in Atmore, Smith heaved and coughed for about 13 minutes and underwent two consciousness tests to make sure he couldn't feel pain.
We have known for some time that the single-drug method with thiopental or pentobarbital is the way to go.  Texas has done dozens of these without incident.  The incoming administration should take steps to make sure the states can obtain these drugs, both to reduce the chance of an actually inhumane execution and to ensure that justice is not defeated by a complete unavailability.

There are a number of possible routes to a fix.  The erroneous decision that prevents states from importing thiopental from willing sellers overseas could be abrogated by statute or taken up to the U.S. Supreme Court.  The government could itself  import the drug or the ingredients from which it is compounded and distribute them to the states.  A government entity with the capability to do so might manufacture the drug.  One way or another, a permanent fix to this problem should be a priority.

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