Recently in Death Penalty Category

Easiest Decision of the Year

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The Justice Department has announced that it will seek the death penalty against Dylan Roof.  

About a year ago, Roof sat in a pew in the Emanuel AME church in Charleston, SC. After an hour in which several parishoners were holding a Bible discussion, he shot nine of them to death.  The victims were all black; Roof is white.  He did it out of racial hate, neither more nor less.  To my knowledge, no sane person has raised any question about who committed this massacre or why.

I worked for DOJ for years, and I cannot fathom why it would take eleven months to decide on the death penalty.  Being as charitable as I can, my guess is that the Department was careful to solicit the views of the victims' families, and that opinion was divided.  Some very religious people oppose capital punishment under all circumstances.

Roof, however, is a walking, and conclusive, case for the death penalty.  The idea that a prison sentence, regardless of its length, is proportionate to this crime is absurd.

I'm all for salvation, but salvation comes from God.  The best our law can do is justice. Now, justice will have its chance.
In Oklahoma, a grand jury has released its report on the problems with executions by lethal injection in that state and the substitution of potassium acetate for potassium chloride.  There are numerous procedural errors detailed in the report, and opponents of the death penalty are having a field day with them.  However, this should not obscure the "bottom line" finding on the execution of Charles Warner (emphasis added):

Warner's death was intentionally inflicted by correctional officers acting pursuant to a Death Warrant issued by the District Court in State of Oklahoma v. Charles Fredrick Warner, Oklahoma County Case No. CF-1997-5249.  The execution, which involved the administration of midazolam, rocuronium bromide, and potassium acetate, was completed in a manner consistent with the Death Warrant and statutory authority. The intravenous administration of the three-drug cocktail to Warner resulted in his humane death within eighteen minutes of the commencement of the sequential administration of these drugs. There is no evidence the manner of the execution caused Warner any needless pain. Nevertheless, his execution was not administered in compliance with the Department's Protocol or in a manner allowing Warner to challenge the procedure prior to his death.

Going forward, the grand jury recommended further research on the use of nitrogen, recently authorized by the legislature:

Press conferences were held at county registrars of voters around the state as we turned in the petitions.  Sean Emery of the Orange County Register has this story on the turn-in there.

Here are photos from the Sacramento event, by our own Marissa Cohen.  Click on the photo for a larger view.

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Sacramento District Attorney Anne Marie Schubert introduces the measure and discusses its significance.
In 2012, the friends of murderers came within four percent of repealing California's death penalty by popular vote, something that has not been done in any state in the United States.  Opposition to the death penalty (like other soft-on-crime efforts) is mostly an elitist cause, pushed by affluent people who can go home to their leafy neighborhoods while the bloody consequences of their feel-good "humanitarianism" fall on people of more modest means.  Thus, repeal bills have gotten through legislatures even when the people of the state are opposed to repeal.  We saw this in Connecticut, where repeal went through even as polls showed the people opposed by 2-1.

In California, the death penalty was enacted by initiative and can't be repealed by the Legislature.  However, the Legislature has failed to do the maintenance necessary to make the death penalty effective, and until now the forces of justice have not been able to raise the very large amounts of money needed to get a fix-it initiative on the ballot.

I can easily see why a lot of people who support the death penalty in principle voted for repeal in 2012.  The present system is not working.  If I genuinely believed it was not fixable, I might vote for repeal myself.

The well-funded friends of murderers have enough signatures to put repeal on the ballot again this year.  But this year is different.  Through a herculean fund-raising effort led by the district attorneys, there will also be a competing initiative to actually fix the system, making the reforms that our derelict Legislature has killed instead of passing so many times.

"Mend it, don't end it" was our slogan in opposition to repeal last time.  A good many people asked, "Yeah, but when are you going to mend it."  Finally, we have a good answer.  This time, the people of California have a direct choice between the two.  The status quo is toast.

I have no doubt the people will choose to mend it and not end it if they are fully and honestly informed of the choice before them.  The main concern now is the overwhelming funding advantage the opponents have.  They can and will spend big bucks to put misleading advertisements on the air, and our side will have only a shoestring grass-roots campaign.  This campaign may be a test of the extent to which money can buy an election.
It is being widely reported in the press that drug manufacturer Pfizer is putting restrictions on the sale of its drugs to prevent them being used in executions.  However, no press release to that effect is on their press release page as of this writing.

I was not aware that any state was using a Pfizer-brand drug, so the impact is unclear.  There may not be any impact at all.

The states most actively carrying out executions have been getting their drugs from compounding pharmacies.  The statement by the opponents that Pfizer's action drives the sourcing "underground" is nonsense.  There is nothing "underground" about compounding pharmacies.

The lethal injection drugs of choice remain thiopental and pentobarbital, and all we really need is for Congress or the Supreme Court to abrogate or overrule the D.C. Circuit's wrongly-decided Cook case so that imports from Asia can resume.  Any questions about purity or potency can be easily resolved by testing.
Mark Berman at the Washington Post has this story on the Hurst remand argument, noted in my post yesterday. Unfortunately, the article contains a glaring error.

The uncertain situation dates back to January, when the U.S. Supreme Court struck down Florida's unique system of imposing death sentences as unconstitutional because it let judges, rather than juries, make the final call.
Wrong.  The issue in Hurst was the finding of an aggravating circumstance making the defendant eligible for the death penalty.  Way back in the Spaziano case in 1984, as described in my previous post, the Supreme Court rejected the argument that the Sixth Amendment requires that the jury make "the final call."

In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.
The Hurst Court was very careful not to say that Spaziano was overruled entirely.  Instead, Spaziano and Hildwin were overruled only "to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty."  In other words, Spaziano is still good law on the "final call."

Why does the WaPo keep getting things wrong on capital cases?  Maybe it's because the "experts" consulted for their stories consist mostly, if not entirely, of advocates for one side of the issue.
In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000).  Yesterday the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida.  "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.   For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure.

Preventable Deaths

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Timothy Jones, 34, is currently on trial in South Carolina for murdering his five children in 2014.  The year prior, in 2013, he was awarded primary custody following divorce proceedings with his now ex-wife, Amber Jones, 31, who has filed a lawsuit against the South Carolina Department of Social Services.  Brandy Zadrozny of the Daily Beast reports the suit's allegations:

[The DSS] failed to fully investigate multiple allegations of abuse, from teachers, school officials, neighbors, babysitters, and Amber Jones herself, according to the complaint. When investigations uncovered abuse, the DSS made a half-dozen ineffectual "safety plans," instead of reporting evidence of child abuse to the authorities and removing the children from Mr. Jones's care.

Mr. Jones had a history of substance abuse and served time in prison for drug possession, forgery, burglary and car theft, crimes that are now deemed "nonserious" and would classify him as a "nonviolent" offender in the state of California and in the proposed federal sentencing reform.  It is disheartening to realize that this rap sheet, even if regarded by the state and the DSS as consisting of "nonserious" and "nonviolent" offenses, could be discounted when considering the primary custody of five children.

Prosecutors are seeking the death penalty against Mr. Jones for these horrific -- and preventable -- murders.  If ever there was a crime for which death is the suitable penalty, this is it.  Anything less for a man who brutally kills his five small children would be unjust.

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.

Why We Have the Death Penalty

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Today marks the third anniversary of the Boston Marathon bombing.  The bombers killed three people and injured and maimed 264 others, some grotesquely and many for life.  They also killed an MIT policeman in the aftermath.

The bombers were Dzhokhar Tsarnaev and his brother. The brother was killed in a confrontation with the police. Dzhokhar was captured.

He was and is a Jihadist.  The reason for the bombing was hate for America, neither more nor less.

Over the screeching of abolitionists, and attempts politically to intimidate the government from seeking capital punishment, Dzhokhar was convicted by a federal jury in Boston, one of the most liberal cities in the country, and sentenced to death.

Of course he has not been executed, while taxpayers get dunned for hundreds of thousands of dollars in the service of manufacturing excuses for his gruesome behavior.  In the meantime, in nearby Harvard Law School, the main reaction is shrugging, except for those still protesting in little Dzhokhar's behalf.  

There is a ream I could write about this horrid case, but I'll refrain except to say two things.  First, the case impeaches to the point of farce the notion that we should never, ever permit a jury to consider imposing a death sentence.  Second, for the many in academia and other sanctuaries of self-satisfied righteousness who think, with Dzhokhar, that Amerika stinks, some consideration might be given to what actually stinks, to wit, the continued, everyday suffering of the victims.  
The Georgia Supreme Court summarized the crimes of Kenneth Fults as follows:

The evidence adduced at Fults' sentencing trial showed that he carried out a week-long crime spree which was centered, at least in part, upon his desire to murder a man who was engaged in a relationship with his former girlfriend. Fults first committed two burglaries, obtaining several handguns. After a failed attempt at murdering his former girlfriend's new boyfriend with one of the stolen handguns, Fults then burglarized the home of his next-door neighbors. After the male neighbor left for work, Fults forced his way through the front door wearing gloves and a hat pulled down over his face. Fults confronted the female occupant of the home, Cathy Bounds, brandishing a .22 caliber handgun he had stolen during one of the burglaries. Ms. Bounds begged for her life and offered Fults the rings on her fingers.  Fults turned Ms. Bounds around toward the bedroom, either taped or forced her to tape her eyes closed by wrapping over six feet of electrical tape around her head, forced her into the bedroom, placed her face-down on her bed, placed a pillow over her head, and shot her five times in the back of the head.
Yet another former death row inmate touted as actually innocent and wrongly convicted is now known to be actually guilty.

Tom Jackman reports for the WaPo:

Justin Michael Wolfe, whose capital murder conviction and death sentence was reversed amid concerns about prosecutorial misconduct, pleaded guilty to murder in Prince William County on Tuesday, admitting in a handwritten statement that he and another man plotted the 2001 robbery and slaying of a fellow marijuana dealer.

It was a stunning reversal from Wolfe, who had proclaimed his innocence for 15 years. Wolfe had argued, at times from Virginia's death row, that the murder of Daniel Petrole Jr., the son of a decorated Secret Service agent, was the work of a rogue drug associate. The case featured a co-defendant repeatedly changing his story about the slaying, a federal district judge ordering Wolfe's release from jail in 2012, and two federal courts chastising Prince William prosecutors for withholding evidence from the defense.
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In a four-page handwritten statement to the court, Wolfe essentially validated the prosecution's consistent version of events: Wolfe and Owen Merton Barber IV decided to rob and kill Petrole because they knew he would have a large amount of cash and marijuana and feared that a robbery alone would invite revenge. Wolfe acknowledged that he owed Petrole tens of thousands of dollars from continuing drug transactions, and he said that he had planned to split the proceeds with Barber and erase a debt Barber owed him.
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Wolfe wrote that he and Barber initially planned only to rob Petrole, as he delivered a marijuana shipment to them, but "eventually we both agreed that it would be necessary to kill Danny because he was probably going to resist the robbery or figure out who did it and have to get revenge. ... I am responsible for Danny's death even though I didn't pull the trigger. If I had not been involved Danny would never have been killed."

This is a clearly proper case for a nontriggerman to be considered fully culpable for the crime.  Where conspirators both intend and premeditate the victim's death, which one actually did the dirty work is virtually irrelevant.
Valentina Pop reports for the WSJ:

A United Nations court sentenced former Bosnian Serb leader Radovan Karadzic to 40 years in prison for genocide, crimes against humanity and war crimes during the Bosnian war in the 1990s. He will appeal the ruling.

The International Criminal Tribunal for the Former Yugoslavia on Thursday found Mr. Karadzic guilty of 10 out of the 11 counts, including genocide for the Srebrenica massacre and criminal responsibility for the shelling of Sarajevo, during a nearly four-year siege on the city. He is the highest-ranking official the court has convicted since its establishment in 1993.
Forty years is a life sentence, given that Karadzic is 70, but it's not enough for genocide. 
This morning we won a major victory in the fight to have capital cases concluded within a reasonable time.  In Habeas Corpus Resource Center v. U.S. Dept. of Justice, No. 14-16928, the U.S. Court of Appeals for the Ninth Circuit vacated an injunction issued by U.S. District Judge Claudia Wilken and put the "fast track" process back on track.

Executions Continue Apace

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With the Texas execution tonight of multiple killer Coy Westbrook, the United States has executed eight inmates in the first 70 days of 2016.  If it continues at that pace (which could either slacken or accelerate), there will be 41 executions this year.  That is the average annual number for the nine preceding years (although slightly more than in any of the last three).  See this chart.

We often hear that the death penalty is dying, but capital punishment keeps knocking on its coffin lid.  Year after year, it tells us it's plugging along.  If this year continues as it has over its first roughly two and a half months, we'll wind up with an execution about every nine days, the same pace as throughout the last decade.  This might not be a robust institution, but, if you go by the numbers, it's not a dying one either. 

When executions continue at a more-or-less constant pace for ten years; and public support for the death penalty remains at or above 60% in each of them (and for the three decades before then); and when, last year, seven Justices declined to go along with two of their colleagues in questioning the per se constitutionality of capital punishment (Glossip)  --  well, I suppose the abolitionist hype will continue, since that seems to be what they do, but hype is still just hype.

It's no big mystery why the death penalty won't go away despite the numerous stern, or sometimes more condescending, sermons from Our Betters:  When you have Wendell Callahan, a career criminal and drug dealer, slicing up little girls out of sheer hate, people are going to understand that we still need a punishment that fits the crime.

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