Recently in Death Penalty Category

The notorious Dean Carter is on deck to join the ranks of exceptionally vicious murderers spared from their full punishment by Cal. Gov. Newsom's misuse of the reprieve power. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today affirmed the rejection of his collateral attack on his convictions and sentences in two counties for four murders and three rapes, aggravated by two other rapes and another murder.
Today, the U.S. Supreme Court heard oral argument in the case of McKinney v. Arizona, No. 18-1109. The transcript is here.

Regrettably, an essential issue in the case was barely mentioned. The attorney for McKinney said, "This Court's decisions in Ring and Hurst require a jury sentencing." That is wrong, yet the attorney for Arizona completely failed to challenge it. The consequences could be catastrophic.

On Friday, the murderers on federal death row won what may have been a Pyrrhic victory. The high court declined to stay or vacate the injunction against their execution. See prior posts here and here. However, the Court signaled its expectation that "the Court of Appeals will render its decision with appropriate dispatch." There is also an opinion "respecting the denial of stay or vacatur" by Justice Alito joined, significantly, by the two junior Justices. Today it is clear that the D.C. Circuit is paying attention.

Last week I noted the dubious opinion of the U.S. District Court in D.C. halting federal executions. Yesterday, a three-judge motions panel of the U.S. Court of Appeals for the D.C. Circuit denied the Government's motion to stay or vacate. The panel gave only an explanation of only one sentence plus citation, inadequate for the seriousness of the matter: "Appellants have not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2018)."

As expected, the Government has taken the case to the Supreme Court, Barr v. Roane, No. 19A615.

As a matter of procedure, the petition is submitted to Chief Justice Roberts, the designated Circuit Justice for the D.C. Circuit, but the Circuit Justice invariably refers capital case stay petitions to the full court, except in emergencies.
Yesterday, South Dakota carried out the long-overdue execution of Charles Rhines for murdering Donnivan Schaeffer in 1992. The Sioux Falls Argus Leader re-posted this archive story from 2014 with details of the crime and the reasons why this case stands out as particularly deserving of the death penalty. The same paper has this story by Danielle Ferguson on the execution. Donnivan Schaeffer's mother, Peggy Schaeffer, made a statement:

"Today is a big day, a day marked with sadness and grief but also relief and justice," she said. "But above all today is a day we talk about Donnivan, the boy who loved his family, fiancee and friends, the guy who drove that old red pickup ... He is missed, and he is loved, and he will never be forgotten.

Sheila Jackson, Donnivan's former fiancee, said Donnivan was a supporter of the death penalty and that he "really believed in an 'eye for an eye.'" Both Jackson and Peggy Schaeffer agreed justice had been served.
Rhines's case went to the Supreme Court 14 years ago. See Rhines v. Weber, 544 U.S. 269 (2005). I will have more to say about that case in another post.

An Easy End for Russell Bucklew

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Today's News Scan notes that Russell Bucklew was executed in Missouri yesterday. This well-deserved execution was delayed for an additional 13 years after the extended review of the judgment because of litigation over the method of execution. Bucklew's final claim was that his unusual medical condition created a risk of severe pain in a type of execution that is nearly painless for everyone else. This claim went to the Supreme Court, which rejected it by a 5-4 vote.

Alisa Nelson reports on the execution for Missourinet. The story says, "a Missourinet reporter served as a state witness of the execution." It does not say Ms. Nelson was the witness, but it reads like a first-hand account.

A line of curtains swung open in a dark room of state witnesses. Bucklew was in a room next door positioned on a gurney with a sheet over all but his head. He did not appear to say anything as the drug began working its way through his system. A few wiggles of the toes and a couple turns of the head was it, no choking or other sounds were heard or seen.
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Today's News Scan notes that Philadelphia DA Larry Krasner is once again making the tired and obviously fallacious argument that simple percentages of the racial composition of death row somehow implies that the death penalty is administered discriminatorily. As we have noted many times on this blog, comparison of the percentage on death row with the general population is completely irrelevant because death row is for murderers, while the general population is almost all non-murderers.

As a crude first cut, we can easily compare the composition of death row with the composition of the population of known murderers. Those numbers are available in the very handy "Easy Access to the FBI's Supplementary Homicide Reports: 1980-2016" at  https://www.ojjdp.gov/ojstatbb/ezashr/

For Pennsylvania from 1980 to 2016, about 1/3 of homicides in which the perpetrator is known were committed by white perpetrators, a little less than 2/3 by black perpetrators, less than 1% each by American Indian and Asian/Pacific Islanders, and 1.4% where the race is not in the database. So the percentage of black murderers on Pennsylvania's death row (about half) is considerably less than the percentage of black murderers overall.

This is only a first cut because we don't know how many of the homicides are even legally eligible to be considered for the death penalty (called "aggravated murder" in Penn.) or the circumstances that make actual imposition of the penalty appropriate or not. More sophisticated studies along those lines, nationwide, have almost always come up with the result that no "race of defendant bias" can be demonstrated by the data. See my 2012 OSJCL article for details.

SCOTUS December Arguments

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The U.S. Supreme Court announced its December oral argument calendar Friday. Several criminal and related cases are on the docket.

NY State Rifle & Pistol v. City of New York, No. 18-280 leads off on Monday, December 2, and will get the most press if it is not canceled. Subsequent changes in state and local law gun control laws provide substantial grounds to believe the case is moot.

McKinney v. Arizona, No. 18-1109 closes out the session on Wednesday, December 11. The case involves the Arizona practice of the Supreme Court reweighing the aggravating and mitigating circumstances itself rather than sending the case back to the trial court for a new sentencing hearing. Current Arizona law for new trials requires the jury to do the weighing as well as find the aggravating circumstance that makes the case eligible for the death penalty. The murderer and his friends have filed copious briefing to the effect that the state court must apply current law with only scant attention to whether current federal law (the only law SCOTUS has jurisdiction to review) requires the jury to do the weighing at all. In Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002), the question decided was unambiguously limited to the finding of the aggravating circumstance, not the weighing.

Be Careful What You Ask For

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In 2011, a group of death row inmates sued the FDA to block the importation of sodium thiopental, a barbiturate that is highly effective in ensuring that lethal injection executions are nearly painless. Among the plaintiffs was Stephen Michael West.

As reported by The Tennessean:

West was sentenced to death for the 1986 stabbing deaths of Wanda Romines, 51, and her 15-year-old daughter, Sheila Romines, in their East Tennessee home. He also was convicted of raping Sheila.

Investigators say the women had been tortured in front of one another before they died.

Death Penalty Fast Track?

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Attorney General William Barr addressed the Fraternal Order of Police today. His remarks as prepared are available on the USDOJ website. There are several gold nuggets in this speech. For this post, I will quote just one paragraph:

This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers.  I will share with you one proposal that we will be advancing after Labor Day.  We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay.  Punishment must be swift and certain.

I am elated that speeding up the needlessly and grotesquely protracted proceedings in capital cases is getting the personal attention of the Attorney General. However, the chances of getting death penalty fast track legislation through Nancy Pelosi's House of Representatives are essentially nil, so why don't we see what we can do with existing law?

NYLS Prof. Robert Blecker has this op-ed at Fox News with the above title.

Attorney General William Barr should be applauded for announcing Thursday that the federal government will resume executing convicted murderers on death row for the first time since 2003, beginning with five vicious killers in December and January.
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While the legislation Barr refers to permits a punishment of death, it doesn't compel it. We rely on the Justice Department to seek the death penalty only for the worst of the worst murderers - those who most clearly deserve to die. And we rely on juries in each individual murder case to act as the moral filter and conscience of the community to decide if the death penalty is warranted.

Reviewing the despicable crimes of the five men scheduled to be executed, we can safely say that the Justice Department has exercised its prerogative wisely.
USDOJ issued this press release today.

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol--clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes.  The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society--children and the elderly.
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The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug--pentobarbital.  Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Does the federal government have a source of pentobarbital? Apparently so. It should order a big batch and share it with the states, eliminating the problematic use of non-barbiturates in three-drug protocols.

Flowers v. Mississippi

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Today, SCOTUS handed down the decision in Flowers v. Mississippi, which dealt with the state's use of peremptory strike of prospective black jurors.  I have not followed this case closely and I am still making my way through the opinions, but Justice Thomas's dissent states these rather important facts:

Confirming that we never should have taken this case, the Court almost entirely ignores--and certainly does not refute--the race-neutral reasons given by the State for striking Wright and four other black prospective jurors. Two of these prospective jurors knew Flowers' family and had been sued by Tardy Furniture-- the family business of one of the victims and also of one of the trial witnesses. One refused to consider the death penalty and apparently lied about working side-by-side with Flowers' sister. One was related to Flowers and lied about her opinion of the death penalty to try to get out of jury duty. And one said that because she worked with two of Flowers' family members, she might favor him and would not consider only the evidence presented.

Those seem like good reasons.  Perhaps I will change my mind as I read all of the opinions more closely. 

Price Executed, Finally

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Alabama yesterday finally achieved justice for the murder of Bill Lynn. Previously, the Supreme Court had effectively given murderer Christopher Price a stay by waiting too long to vacate the stays erroneously granted by lower federal courts. See prior posts here and here.

Justice Breyer wrote a dissent more notable for what it does not say than what it says.

Moral Acceptability Survey

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Gallup is out with its moral acceptability survey. "Regardless of whether or not you think it should be legal, for each [issue], please tell me whether you personally believe that in general it is morally acceptable or morally wrong."

The death penalty comes in at 60% acceptable to 35% not. The 25% acceptable-not spread is exactly the same as three years ago, when it was 59-34. The ideological spread is significant but less than most other non-consensus issues, with 66% of self-identified conservatives and 46% of self-identified liberals saying it is morally acceptable edtabs.

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