Recently in Death Penalty Category

Is Infallibility Required?

| No Comments
A major topic in the debate about whether and under what conditions the United States should admit Syrian refugees is whether vetting them can give us ironclad assurance that no terrorists will sneak in among the legions of innocent people.  In essence, many Americans, certainly including conservatives, would like to see an infallible system.

There are reasonable arguments on both sides of the general refugee debate. Obama is correct that American values and history counsel providing a home for those who flee oppression and want freedom.  His critics are correct that, just as America cannot be the world'd policeman, it cannot be the world's homeless shelter. For one thing, as Sen. Jeff Sessions has noted, it would cost $55 billion.

I am not at this point going to take sides on the overall merits.  My point is more limited:  Those who say that we should accept the refugees, while arguing that our vetting system is robust and reliable, admit it's not infallible.

This is wise, since nothing human beings do is infallible.  Liberals taking the refugees' side acknowledge, explicitly or otherwise, that we could make a mistake.  If we do, and the mistake turns out to be Abdelhamid Abaaoud, we could lose dozens or hundreds of innocents to a gruesome terrorist attack.  But we should open our borders anyway, they say, because the risk, though grave, is small, and the payoff large.

Question:  Why do liberals not see the same thing in the death penalty debate?  The stakes are high (as they are in dealing with terrorism) and the system cannot be made infallible (as with vetting for Jihadists).  But the risk of executing the innocent is extremely small, and the payoff  --  the only punishment that even remotely fits the crime  --  large.

This is what abolitionists miss:  Human life does not provide the luxury of absolutes. We live in a world of tradeoff's, a world in which infallibility is unavailable.  Just as in the refugee debate, the outcome depends on whether what you get is worth what you give up.  In keeping the death penalty for ghastly murder, it is.

France Kills A Murderer

| No Comments
AP reports:

The Belgian extremist suspected of masterminding the deadly attacks in Paris died a day ago along with his female cousin in a police raid on a suburban apartment building, French officials said Thursday, adding it was still not clear exactly how he died.

The body of Abdelhamid Abaaoud, 27, was found in the building targeted Wednesday in the chaotic, bloody raid in the Paris suburb of Saint-Denis and was identified based on skin samples, the Paris prosecutor's office said Thursday.

Congratulations, France.  Well done.

Now stop criticizing us when we kill our murderers.

Justice Waits While Lawyers Bicker

| No Comments
SL&P has this story suggesting that the main problem in a Texas multiple child murder case from more than 15 years ago is that  --  ready now?  --  the defendant's lawyers aren't being aggressive enough in pushing a last minute clemency appeal. The story's first eight paragraphs amount to a hit on the killer's present counsel for declining to push the 16th year of litigation into the 17th (and beyond, I suppose).

You will not be surprised to hear that the story does not (1) advance any claim of factual innocence; (2) detail the prior multiple efforts to reverse the sentence, or (3) explain any plausible grounds for either judicial or executive hesitation at this late date.  It's basically a hit piece on lawyers who decline to game the system out to infinity.

In that sense, it's an apt display of what's wrong with the administration of the death penalty, and of the insufferable self-importance of lawyers.  It never seems to occur to the people quoted in the article that legal outcomes should depend on the behavior of the parties, not the behavior of the attorneys.

Still, far, far down the page, we get our first glimpse into what the case is actually about:

Holiday [the petitioner] was convicted of intentionally setting fire to his wife's home near College Station in September 2000, killing her three little girls. He forced the children's grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday's case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless....

Oh, OK.  The problem is not that lawyers file absurd claims for years.  The problem is that at some point, they stop.
A:  The killer's feelings about his time on death row.

That is not an exaggeration.  This article goes into painful length about what killer Richard Glossip feels about being held in a cell near the execution chamber ("It is torture beyond what anybody can believe."). Not one word is said about the feelings of his victim.  Indeed the victim's name (Barry Van Treese) is never even mentioned.

As I said in an earlier post, abolitionism has become a moral sickness.

One More Reason to Support the Death Penalty

| No Comments
Jimmy Carter Calls For Death Penalty Abolition.

Long ago, I was asked what my advice would be for the then-incoming Reagan Administration.  My answer was simple: Figure out what Jimmy Carter would have done, and do the opposite.

A Masterpiece of Bad Timing

| No Comments
Last Friday morning, the reliably pro-criminal New York Times published its most recent puff piece about opposition to the death penalty. A few hours later, 129 (so far) unsuspecting and defenseless people were murdered in Paris in one of most ghastly terrorist attacks in memory.  Hostages taken in a theater were shot dead in the face, one by one.

Kent has written that there is a principled position in opposition to the death penalty, and he, not I, speaks for CJLF.  I used to think as Kent does about that; I no longer do.

The idea that there are no circumstances in which the death penalty should be imposed has entered the land of the preposterous.  It can no longer be viewed as an error; in my view, it's a moral sickness.

It is almost universally agreed that the punishment should fit the crime.  The notion that a prison term, no matter what its length, fits the Paris crime simply cannot be held in good faith, and neither is the idea that we cannot determine with certainty who the culprits are.  Indeed, I suspect the French already know, as do we.

And make no mistake, this is coming to our cities, including, I strongly suspect, the one where my wife works and I teach law. It's just a matter of when.

Kermit Alexander Profile

| 1 Comment
Debra Saunders has this article in the SF Chronicle on Kermit Alexander.

Former San Francisco 49ers star Kermit Alexander is death penalty opponents' worst nightmare. Foes of the death penalty argue that the criminal justice system is skewed against African Americans and that prosecutors are less likely to seek the death penalty when victims are black. Alexander is an African American who grew up in the projects of Los Angeles. So were the four members of his family slain in a 1984 contract killing gone wrong. He has watched the three black men convicted for the murders try to escape responsibility for their crimes. In prison Darren Williams -- the Rolling 60s Crips gang member in charge of the contract hit to kill a disabled woman who lived two doors down the street -- has his own website, Free Darren Williams, with a link, "Black Lives Matter."

"Black lives matter," Alexander, 74, repeated as I spoke with him and his wife, Tami, recently, "What about my family? They didn't matter."
*                                                   *                                              *
November 2014: The Criminal Justice Legal Foundation, Kermit Alexander and Bradley Winchell -- the brother of Morales' murder victim Terri Winchell, 17, below -- sue the Department of Corrections and Rehabilitation for delaying executions by not issuing a one-drug lethal-injection.

November 2015: The Department of Corrections officials propose a new one-drug lethal-injection protocol.

Will California ever enforce its death penalty?

California's death penalty has been on hold since 2006, when a federal judge ruled against the state's three-drug protocol. For nearly a decade, Sacramento dragged its feet rather than update the protocol. In the name of victims' families, the Criminal Justice Legal Foundation sued to make the state act. This month, corrections officials complied by proposing a one-drug lethal-injection protocol.
The U.S. Court of Appeals has reversed the decision of the Federal District Court that had said California's death penalty was unconstitutional because of excessive delays.  The case is explained in my after-argument post.  CJLF has a press release.
Nine years after its three-drug protocol was halted by a "preliminary" injunction (still in effect) by a federal judge who said the state could go ahead with executions via a single-drug protocol, the California Department of Corrections and Rehabilitation has finally started the administrative process to official adopt such a method.  The California Notice Register entry is here.  The full document is on CDCR's website.

On April 26, 2012, three and a half years ago, CDCR informed the California Court of Appeal it had been directed to begin work on alternatives, including a single-drug method.  What happened?  It does not take that long to develop a protocol, particularly when Ohio had already been doing it for three years at that point.

They just sat on it in gross dereliction of duty.  CJLF, representing Bradley Winchell and Kermit Alexander, family members of murder victims, had to sue them to make them simply do their jobs.

Today's announcement is a big step forward.  There are presently two injunctions in force, one against the three-drug protocol and one against using a protocol that has not been through the Administrative Procedure Act process.  Both are erroneous, in my opinion, but completing this process will render them both moot.  Then California can resume the long delayed justice in its very worst murder cases.

This is a red-letter day in the fight for justice.

The story is covered by Paige St. John for the LA Times, Don Thompson for AP, and Tracy Connor for NBC.

Individual-Reaction Execution Claims

| 1 Comment
Yesterday the U.S. Supreme Court granted a stay of execution to a Missouri murderer.  AP reports:

Death row inmate Ernest Lee Johnson, who was convicted of beating three people to death with a claw hammer, was scheduled to die at 6 p.m. Tuesday at the Missouri state prison in Bonne Terre. But the Supreme Court on Tuesday night granted a stay while the 8th U.S. Circuit Court of Appeals considers whether a complaint from Johnson was properly dismissed.

Johnson, 55, claims that the execution drug Missouri uses could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced the removal of up to 20 percent of his brain tissue.
Two cases is a little early to declare a trend, but this is the second case in a row where the murderer is claiming that an execution protocol would be cruel as applied to him because of some individual medical condition, as opposed to its use generally.  In Florida, the state supreme court sent the issue back to the trial court, which took evidence and rejected it.  See this post.  The U.S. Supreme Court denied a further stay without dissent on this ground, although two justices dissented on other grounds.  See this post

That evidently didn't happen in the Missouri case.  The Supreme Court's order states, "Because petitioner's complaint was dismissed for failure to state a claim, the State was not required to submit any evidence refuting this allegation. In the currently pending appeal, the Court of Appeals will be required to decide whether petitioner's complaint was properly dismissed for failure to state a claim or whether the case should have been permitted to progress to the summary judgment stage."

Johnson murdered three people in a convenience store robbery in 1994:  Mary Bratcher, Fred Jones, and Mabel Scruggs.  Being beaten to death with a claw hammer is far worse than anything at issue in the present litigation.

SCOTUS's Roads Not Taken

| 1 Comment
On Thursday, the Supreme Court of the United States denied a stay to Florida murderer Jerry Correll, who was an exemplar of why anything less than death is inadequate for some killers.  See prior post.  One thing about executions is that they force SCOTUS to a decision.  In most cases when the Supreme Court denies review it says little about the merits of the argument.  It may be that they are just waiting for a better vehicle.  When they say, in effect, "go ahead and fry him," it's a much stronger indication that a majority thinks his claim lacks merit.

Justices Breyer and Sotomayor dissented.  Justice Breyer, alone, reiterated his support for at least taking up what is known as the Lackey claim "whether nearly 30 years of incarceration under sentence of death is cruel and unusual punishment."  The oddity of that claim is that the long delay is over the vehement objection of the state and, in most cases, the victim's family, and the execution that the defendant seeks to have stayed brings an end to the supposedly cruel punishment he complains of.  The fact that no other justice joins this part is a good sign.

The other ground of dissent, which Justice Sotomayor does join, is that the case should be held for decision of an attack on Florida's capital sentencing system in Hurst v. Florida.  That attack is based on the Supreme Court's decision Ring v. Arizona (2002), which the Court held was not retroactive to cases final on direct appeal in Schriro v. Summerlin (2004).  In Correll, the Florida Supreme Court brushed off the Ring claim both on the merits and on nonretroactivity.  Whatever the Court may decide on the merits in Hurst, we can be confident that Summerlin is safe.  Seven Justices would not have let Florida go ahead and execute Correll if they thought otherwise.
Laura Meckler reports in the WSJ:

Hillary Clinton said Wednesday she doesn't support abolishing the death penalty but would like to see it used more judiciously, another point of contrast with the most liberal members of her party and with her nearest rival for the Democratic presidential nomination.
*                            *                         *
"We have a lot of evidence now that the death penalty has been too frequently applied and very unfortunately, often times in a discriminatory way," she said during a question-and-answer session at a "Politics and Eggs" luncheon at St. Anselm College on Wednesday. She said she welcomed efforts by many states to revisit their policies.

"I do not favor abolishing it, however, because I think there are certain egregious cases that still deserve consideration of the death penalty, but I'd like to see those be very limited and rare," she said.
What evidence is there that it "has been too frequently applied"?  On the contrary, it is applied to only a tiny fraction of intentional criminal homicides.  All you have to do is read the facts of capital cases, like the Correll case discussed in my previous post, to know these sentences are thoroughly deserved and entirely just in nearly all cases.

The old discrimination claim that black defendants are more likely to be sentenced to death has been refuted time after time for decades now, even by the opponents' own studies.  The claim that the death penalty is less likely to be imposed if the victim is black would, if valid, be a claim that the death penalty is not imposed often enough.  But the claim is not valid, as explained in my OSJCL article.

Given the state of the Democratic Party today, Mrs. Clinton is under fire for not going far enough in the soft-on-crime direction.

Her position is, I suspect, calibrated for maximum political gain.  She believes, with justification, that the nomination is pretty much in the bag, and she is looking to the general election.

Resuming Justice In Florida

| No Comments
As noted in today's News Scan, Florida is scheduled to resume executions tomorrow by finally carrying out the thoroughly deserved and long overdue sentence of Jerry Correll.  Correll tortured his ex-wife, stabbed her, and raped her as she lay dying of an abdominal wound.  Her also murdered her mother and sister.  Then he murdered their five-year-old daughter.  According to the trial judge (quoted in the federal district court opinion),

[The medical examiner] testified Tuesday Correll lived approximately five minutes before losing consciousness. It is difficult to imagine the degree of emotional anguish suffered by that dying child. She had apparently witnessed the brutal murder of her mother and experienced the horror of her own father repeatedly driving a sharp knife into her chest.
*                                 *                                *
There is no reasonable explanation for her murder other than to permanently silence her as a witness to the death of her mother.
*                                 *                                *
This five year old child was clad only in her nighty and was clutching her cloth doll when she was brutally and repeatedly attacked by her own father.

Correll should have been executed in January.  What held it up?
Under the terms of the settlement of a lawsuit brought by CJLF on behalf of murder victims' families, today is the day that the California Department of Corrections and Rehabilitation must end its multiyear foot-dragging and initiate the process of establishing a new lethal injection protocol.  As of this writing, I have been told "through the grapevine" that the documents have been transmitted to the Office of Administrative Law, though I have not received official confirmation or copies of the documents.

The administrative process could take a year, but the restoration of justice in the Golden State is now within sight.

Astrid Galvan and Justin Pitchard report for Association Press:

Compounding the nation's severe shortage of execution drugs, federal authorities have confiscated shipments of a lethal-injection chemical that Arizona and Texas tried to bring in from abroad, saying such imports are illegal.

The Food and Drug Administration said Friday that it impounded orders of sodium thiopental, an anesthetic that has been used in past executions in combination with drugs that paralyze the muscles and stop the heart. It currently has no legal uses in the U.S.
Multiple errors in the story here. Thiopental has also been used alone.  When Ohio pioneered the single-drug method, it used thiopental.  The drug was used in medical treatment for decades, and there is no prohibition against using it.  No company ever went through the FDA approval process for it, probably because it has been around since before such approvals were required. 

"Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country," FDA spokesman Jeff Ventura said in a statement.
Actually there is only one case.  The "courts," plural, are the District Court and Court of Appeals in that one case, Cook v. FDA

That case was wrongly decided, in my opinion.  The Supreme Court 30 years ago decided in Heckler v. Chaney that the FDA has discretion to not enforce the restrictions of the Food, Drug, and Cosmetic Act in a context where it was never meant to apply and where its requirements make no sense.  What is "safe and effective" for an execution drug?  Effective for this purpose is necessarily the ultimate unsafe.  However, the Cook court (the same court the Supreme Court reversed in Heckler) thought the importation law was distinguishable from the domestic use law at issue in Heckler.

The state have partly themselves to blame for not fighting that decision.  Now they need to vigorously take this up to the Supreme Court to have Cook overruled or get Congress to abrogate it by statute.  Prohibiting the importation of the drug that is clearly superior to the midazolam approved in Glossip is just crazy.

For the full background and a legislative proposal, see this paper.

Monthly Archives