Recently in Death Penalty Category

What the Death Penalty Is Really About

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There's a lot of background noise going on about capital punishment.  The press plays up stories of alleged "exoneration," Jim Crow, drunk defense lawyers, cheating prosecutors, phony evidence, lethal injection supplies, and a great deal more.

Many of these are worth discussing.  I think all of them have been discussed on this blog, some of them many times.

But in the din of secondary (though important) issues, we risk losing sight of the main item:  We have the death penalty, and it continues to enjoy overwhelming public support, because there are instances where it is the only punishment consistent with the Eighth Amendment that comes close to fitting the crime.

Although you'd hardly know it, what with the legal blogosphere's recent obsession with Indiana's version of RFRA (as to which CJLF takes no position), there is a case currently underway that makes this unarguably clear.  I have to give readers notice that this is rough sledding unless you're made of stone.
There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.
We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico* by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.
Some people may be surprised to learn that the State of Kansas has a state supreme court that tilts very heavily in favor of criminals, especially murderers in capital cases.  This is a result of the state's judicial selection process, which unwisely gave the state bar the keys to the initial entry gate to the bench, naively believing that this would result in selection of judges according to merit.  In reality, so-called "merit selection" only substitutes bar politics for general politics, a big step down.

Today the U.S. Supreme Court took up the highly controversial cases of the Carr brothers, both titled Kansas v. Carr, Nos. 14-449 (Jonathan) and 14-450 (Reginald), along with Kansas v. Gleason, No. 14-452.

Update:  Questions presented follow the break.

Abolitionism versus Reality

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Statement of abolitionism, via the head of the National Coalition to Abolish the Death Penalty (interviewed by Salon):

"How death penalty politics radically, shockingly changed:  Death row's days are numbered..."

Statement of reality, via Gallup:

"Americans' Support for Death Penalty Stable.  WASHINGTON, D.C. -- Six in 10 Americans favor the death penalty for convicted murderers, generally consistent with attitudes since 2008."

For willingness to lie, belligerently and with a straight face, I have seldom encountered anything like the abolitionist movement.  The refrain is that public support for the death penalty has been crumbling in recent years, but the truth is otherwise (as abolitionists know while they continue to dissemble). 


Anyone who knows anything about polling will tell you that you can produce dramatic swings in results by how you phrase the question.  A common and blatant method of skewing a poll is to build arguments for one side into the question.

Public Policy Polling has done a poll on the Pennsylvania Governor's death penalty moratorium that is so blatantly worded that it reads like a parody of bad polling.  If an instructor gave his students an assignment to "draft the worst poll question you possibly can," it would read something like this:

Governor Wolf has temporarily paused executions in Pennsylvania until concerns about the risk of executing innocent people, the high cost of the death penalty, and serious issues of unfairness can be addressed by a bipartisan study commission. Do you strongly support, somewhat support, somewhat oppose or strongly oppose the decision to temporarily pause executions?
Yet even skewed to the max they didn't crack a majority.  "Strongly support" and "somewhat support" only totaled 50%.

They also asked the extremely biased "which punishment" question we have noted many times before, implying that the respondent must choose a single punishment for all murderers.

The press seems to be lapping this up, uncritically reporting the poll result with no mention of the extreme bias in the wording.  See, e.g., this article in the Wilkes-Barre Times Leader.

The real news here is that support for the death penalty remains so robust that even a badly worded question like this can't generate a substantial majority.  No one seems to be getting that.

It Was Murder

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The most shocking news this morning is reported by the Wall Street Journal:

The co-pilot of Germanwings Flight 9525 appears to have deliberately crashed the plane after he was left alone in the cockpit, according to a French prosecutor.

The captain was intentionally locked outside minutes before the A320 crashed into an alpine mountain ridge, French Prosecutor Brice Robin said Thursday. Co-pilot Andreas Lubitz, a 28-year-old German national, was silent throughout the plane's descent and was alive at the point of impact, according to the prosecutor.

Mr. Robin's conclusions are drawn from the plane's cockpit voice recorder, recovered at the crash site in the French Alps late Tuesday and analyzed by French accident investigators on Wednesday.

The recording contains screams believed to be from passengers, once they recognized the plane was crashing.

As with ISIS's burning to death a caged Jordanian pilot, the mind-bending horror of a mass murder undertaken like this causes me to wonder how any principled person can woodenly oppose capital punishment.  It took eight to ten minutes for the plane to hit the ground, after a steep, controlled dive that those on board could not have helped knowing was their last time on this earth. The horror and panic of it, multiplied for 150 passengers, is something I cannot put into words.

The co-pilot who engineered this horror died in it.  But he might have survived  -- it happens every now and again.  Had that happened, it's beyond my comprehension that a jury of fair-minded people, after hearing all the evidence, should be absolutely barred from having at least the chance to consider a death sentence.

The idea that a term of years is fitting punishment for the horror-laden, violent murders of dozens of helpless men, women and children  --  people subjected to a grotesque mental torture incapable of description (before being smashed to death)  -- is incoherent in any system I could recognize as civilized.



On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

The Theocracy Brief

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I've written a lot of amicus briefs in the U.S. Supreme Court.  Indeed, at this point I suspect there are few, if any, people who have written more.  My arguments have shown up in the opinions on a good many occasions, sometimes attributed but generally not.

The number of amicus briefs has risen in recent years, and their usefulness to the Court, on average, has declined.  Many are submitted just so the submitters can say they were in the case.  CJLF never does that.  If we have nothing of value to add, we don't file.  That rarely happens, but it has happened.

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus brief purporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.
Bill noted earlier the case of the State Bar of Texas pressing charges against the former prosecutor in the Willingham matter, and the Washington Post's astonishing publication of an article written by a partisan in the case without identifying him as such.

Now we have this article in the Corsicana Daily Sun.  This is the local paper for the scene of the crime (Navarro County, on I-45, the second county south of Dallas) and the most reliable source of objective reporting in the matter.  This article says it is "from staff and wire reports."

Evidently in Texas bar discipline cases are referred to county courts. 

The case has been assigned to Judge David A. Farr, a family court judge in Houston, but is expected to be heard in Navarro County. Jackson's attorney said he has requested a jury trial.

"We're very confident that when a jury sees this evidence, they will find that John Jackson has not done anything wrong," Byrne said.

Jury trial in a bar discipline matter?  Things are different in Texas.

Anyway, I am glad to see an aspect of the Willingham matter assigned to a tribunal where there is a shot at a fair hearing.  Previously, the Innocence Project tried to steer the matter to a judge leaning heavily in their favor, a proceeding I dubbed Charlie Baird's Circus.  Here is a post with links to a number of earlier posts on the subject.

Willingham's actual guilt is not the subject of the bar discipline matter, but perhaps will we get a useful airing and some factual findings out of it.

When the "News" Gets Written by Partisans

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The March 18 edition of the Washington Post carried a story titled, "Prosecutor Accused of Misconduct in Disputed Texas Execution Case."  The story is about the much-heralded controversy surrounding Cameron Todd Willingham.  Willingham was executed in 2004 for murdering his three children by setting fire to his (and their) house.

It is not my purpose in this entry to rehash the case, which has been discussed frequently on this blog and elsewhere.  The newspaper story is about proposed state bar ethics charges against the prosecutor, John H. Jackson, for intentionally failing to disclose exculpatory evidence, to wit, a deal for leniency he had with a key government witness.

What caught my attention was the Post's by-line.  The story was written by one Maurice Possley.  I am a regular reader of the Post, and I did not recognize Mr. Possley as a writer.  So I did a bit of research.

It turns out that Maurice Possley is an anti-death penalty zealot affiliated with the Marshall Project.  What this means is that the Post farmed out a story to a partisan and printed it as news.  Equally bad or worse, if possible, is that, so far as I am able to see, the Post never identifies Mr. Possley's affiliation.  A less suspicious reader would have no idea of what was going on.
The Washington Post's Monkey Cage has this article by Frank Baumgartner and Anna Dietrich on the rates of reversal in capital cases.  The article leaves out essential facts, particularly how the picture has changed over time, to arrive at its Politically Correct conclusion.

Large numbers of capital sentences have, of course, been overturned, but the reasons have varied over time.  To simply state an overall rate from 1973 to the present is highly misleading.

In the early years, the primary reason for reversals was the Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.  In 1972 it strongly implied that discretion in capital sentencing was forbidden and mandatory sentencing was required.  Congress and the legislatures of the two largest states at the time, California and New York, interpreted the decision that way and passed mandatory sentencing laws.  Four years later, without so much as an apology, the Supreme Court said no, discretion is required, not forbidden, but it must be guided discretion.  All the sentences in the mandatory jurisdictions were thrown out.

But the high court was not done with its "bait and switch."  It continued to conjure up new constitutional requirements, often contradicting what it said before.  In 1976 it approved Florida's system with its defined list of mitigating circumstances.  In 1987 it said, no, that is invalid because the jury was not instructed to consider circumstances not on the list. 

In Teague v. Lane in 1989, the Supreme Court, at the suggestion of yours truly, adopted a rule that new rules of constitutional criminal procedure would not be applied retroactively on habeas corpus.  The same year, I did a study of capital cases in the Eleventh Circuit and found that nearly half the reversals would not have been reversed if the Teague rule had been in effect and observed at the time of the decisions.

Botched? Hardly.

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Reporters seem to be infatuated with the word "botched" when it comes to executions.  This word choice has an unwarranted and detrimental effect.  Cameron McWhirter has this article in the WSJ, referring to the postponed execution of Kelly Gissendaner in Georgia as "a botched attempt."

McWhirter has it completely backwards.  When the execution drug was found to be cloudy, Georgia officials prudently postponed the execution precisely so that there would not be a "botched" execution.

Let's get it straight, folks.  There has only been one "botched" execution in recent times, that of Clayton Lockett.  Other executions, where an unconscious inmate's body struggles for breath, have been uncomfortable for observers to watch, but the inmate still died a less painful death than most of us are going to have.

News Scan

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Impact Of Gov. Brown's Supreme Court Appointees:     Maura Dolan of the LA Times reports  that California Governor Jerry Brown's most recent appointees have provided enough votes on the seven-member Supreme Court to force reconsideration of a death penalty case upheld last January.  The case of People v. Grimes involves the brutal robbery-murder of a 98-year-old woman by habitual felon Gary Grimes and two accomplices.  The Court's January decision  rejected numerous claims of trial and  sentencing error and upheld the conviction and sentence with a 4 justice majority, one concurring and dissenting and two dissenting.  The same day the decision was announced, Brown appointees Mariano-Florentino Cuellar and Leondra Kruger were sworn in as justices.  In a brief order yesterday, the court announced it would reconsider the case with the two new justices voting with the two dissenters. 

The One Juror Veto Rule

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Guest post by Ian:

As Kent has explained, most death penalty States and the Federal Death Penalty Act (as interpreted by the Supreme Court) require the jury to unanimously agree on the sentence in a capital case, but if the jury fails to agree, the judge is required to impose a prison sentence (usually some form of a life sentence). See Jones v. United States, 527 U.S. 373, 380-381 (1999) (interpreting 18 U.S.C. Section 3594 to require that the court impose a prison sentence if the jury deadlocks on the death sentence and rejecting a lower court interpretation that a penalty phase retrial is authorized when the jury is deadlocked on the sentence). This in effect amounts to giving one juror the power to veto any death sentence by causing a deadlock on the sentence verdict (i.e., the single-juror veto rule) and thereby requiring the court to impose a prison sentence since the laws in those jurisdictions prohibit penalty phase retrials because of hung juries.

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