Recently in Death Penalty Category

California's Execution Protocol

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One of the lesser-used provisions of California's Administrative Procedure Act permits interested persons to petition for a regulation to promulgated.  We at CJLF have filed petitions on behalf of murder victims' families formally asking CDCR to establish by regulation an execution protocol.

It has been two years since CDCR said the Governor had directed it to develop a one-drug protocol to eliminate the problems and the litigation over the three-drug method.  There is simply no excuse for taking so long.

CJLF's press release is here.

Texas Execution

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Michael Graczyk reports for AP:

HUNTSVILLE, Texas (AP) -- A Texas woman convicted of the starvation and torture death of her girlfriend's 9-year-old son a decade ago was executed Wednesday evening.

Lisa Coleman, 38, received a lethal injection after the U.S. Supreme Court rejected a last-day appeal to spare her.

She was pronounced dead at 6:24 p.m. CDT, 12 minutes after Texas Department of Criminal officials began administering a lethal dose of pentobarbital.

Reprieves and Volunteers

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Harrison Latto, attorney for Oregon death row "volunteer" Gary Haugen, has this op-ed in the Oregonian.

The most puzzling aspect of the reprieve Gov. Kitzhaber granted to my client Gary Haugen is why he chose the utterly unprecedented device of a reprieve of indefinite duration, which will expire as soon as he leaves office, rather than using the more conventional method of commuting Haugen's death sentence to life in prison.

Some Candor From The Other Side

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I have often been critical on this blog of the anti-death-penalty movement not because they disagree with me on the underlying issue, which I have no problem with, but because they are so very often deceptive, usually with cleverly phrased half-truths and word games that create false impressions without quite lying in the narrowest sense of that word.

So we should note here when we see a refreshing breath of candor from our opponents.  I recently stumbled on this article in Slate from last May by Boer Deng and Dahlia Lithwick.

But as American physicians sideline themselves and European pharmaceutical firms (and American ones with global ties) decline to supply the most known and efficacious lethal injection drugs, corrections officials have been pushed to use inferior methods and substandard providers.  In other words--and painful though it is to admit--the real culprit in the death of Clayton Lockett is opposition to the death penalty. In pushing for outright abolition of capital punishment, we have undermined the counterveiling effort to make it as clean and painless as possible. The perfect has become the enemy of the good-enough execution.
Yup.

Field Poll on California Death Penalty

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Opponents of the death penalty in California are happy about a new Field Poll that shows their position is behind by "only" 22%, less than previously.

Complexity, the Enemy of Justice

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Kent yesterday had an entry in which he noted that a man who shot and killed his wife and her brother twenty one years ago was due to be executed, but was fighting it off with a (typical) blizzard of last-minute procedural motions.  As Kent put it:

So when you are stone cold guilty of a crime for which the death penalty is clearly appropriate, what do your lawyers argue about at the last minute?  Drug expiration dates.  Really.

This got me to thinking:  Why has criminal justice system  --  not just capital punishment, although certainly that too  --  tied itself up with manufactured procedural issues that wander at increasingly huge distances from the central question:  Are we being careful enough to be sure we've got the right guy?

I think it's because we've become entranced with the idea that moral confidence in the system requires perfection or something very close to it, and that perfection requires the kind of microscopic complexity that now stretches on year after year after year.

But this is all wrong.  The quest for perfection is a fool's errand no matter what our punishment scheme is.  For starters, it's unattainable.  And it has reached the point that the complexity it spawns produces more injustice than it averts. Prof. Richard Epstein explains the point brilliantly in the excerpt after the break.  (Simple Rules for a Complex World,  Harvard University Press, 1995; emphasis mine).

Drug Expiration Dates

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Willie Trottie is scheduled for execution in Texas today for killing his wife and her brother. David Ingram reports for KTRK:

"I shot my brother-in-law in self-defense and I shot my wife by accident," he told The Associated Press in a recent interview. "There's no doubt I committed this crime. The dispute is the sequence of how it happened."
Actually, not too much of a dispute.  That "accidental" shooting involved 11 bullets.  The gun was a semiautomatic, not a full automatic, so that requires pulling the trigger "accidentally" 11 times.  And there were multiple witnesses.  Trottie told his wife as he was killing her, "Bitch, I told you I was going to kill you."

So when you are stone cold guilty of a crime for which the death penalty is clearly appropriate, what do your lawyers argue about at the last minute?  Drug expiration dates.  Really.

Evil Should Not Win

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The title of this post is from the statement of Jama Brown, the widow of Dennis Poyser, one of the victims murdered at a Ruby Tuesday in Columbia, Missouri on July 4, 1998.  She was speaking after the execution of the perpetrator of that crime.  Bob Priddy has this post at Missourinet, with the audio of Ms. Brown's statement. 

Reams of philosophical discussion have been written about retribution, but no philosopher ever put it better.  Evil wins when we let murderers off too easy.  Evil should not win.

Evading Congress's Landmark Habeas Reform

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Yesterday, the Ninth Circuit granted rehearing en banc in a case it decided last year and the Supreme Court turned down last June.  Judge Tallman, joined by Judges O'Scannlain, Callahan, Bea, and Ikuta, takes the unusual step of dissenting from a grant of rehearing en banc. 

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now--after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed--we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.
Aside from the specific procedural question in this case is a deeper question.  Congress passed a landmark law in 1996 for the specific purpose of a making capital punishment effective.  One of the reforms was to crack down on successive petitions -- the filing of a new federal habeas petition after the first one has been denied.  This was, initially, one of most effective reforms in the package.  It was upheld by the Supreme Court with remarkable swiftness, two months after enactment of the law.  See Felker v. Turpin, 518 U.S. 651 (1996).  (CJLF filed an amicus brief.  See footnote on p. 654.)

However, the effectiveness of the reform has been diluted in recent years by the use of various procedural devices to reopen the old petition instead of filing a new one.  The Supreme Court has not been tough enough in restricting this practice.  Habeas corpus is not just another civil case.  Congress spoke clearly when it said that once a case is finished it should be reopened only for certain very compelling circumstances (like, for instance, we got the wrong guy).  An arguably insufficient consideration of "mitigating" evidence that has nothing whatever to do with the crime, which is what Henry is about, is not a good enough reason to further delay already badly delayed justice.  Congress has decided that, and the courts need to respect that.

Prospective-Only Death Penalty Repeals

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Barry Massey reports for AP:

New Mexico's remaining death row inmates are asking the state's highest court to spare them from potential execution because lawmakers repealed capital punishment after they were sentenced to die by lethal injection.

Timothy Allen and Robert Fry contend their death sentences violate state and federal constitutional protections because New Mexico abolished capital punishment in 2009 for future murders but left it in place for them. Both men were convicted and sentenced to death for murders committed years before the repeal.

The state Supreme Court will hear arguments from lawyers on Oct. 1, but a decision by the five justices likely wouldn't be made until months later.
Months later would be good in comparison to Connecticut.  That state's high court heard oral argument April 23, 2013 and has been sitting on it for over a year.  CJLF filed an amicus brief in that case.  (It's only 10 pages because that is all Connecticut rules allow for amici.)

The issue isn't that hard.  If you simply decide according to established constitutional law, of course a legislature has the power to reduce the maximum punishment for future offenses without overturning existing sentences.  That is established beyond serious question.  If you simply want to reach a Politically Correct result and have to back in some plausible legal reasoning to support the predetermined result, that's a little more work, but it doesn't take a year.

Paradoxically, a win for these two murderers would be a loss for repeal advocates in other states.  Where the vote is close, prospective-only operation may be key to passage, and a court decision striking that down would make repeal more difficult.

Boston's Growing Murder Problem

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Since finishing up my time interning with the Criminal Justice Legal Foundation I have moved back to Boston to begin my final year at Suffolk University Law School. While back here I am a Massachusetts Supreme Judicial Court Rule 3.03 Certified Student Prosecutor. That basically means I intern for a local District Attorney's office with all the responsibilities and powers of an Assistant District Attorney but am always under the supervision of someone who makes sure I don't screw things up too bad. These opinions are my own and not that of CJLF, the Plymouth County District Attorney's Office, and most certainly not that of Suffolk University Law School.
 
I come back to a city in crisis, as the gun violence and murder rates from the summer have dwarfed, in historic proportions, the rates from the previous summer and the past several summers.
In May I noted the Georgia Supreme Court's well-written, well-reasoned opinion on Georgia murderer Warren Lee Hill's challenge to the state law providing confidentiality to the suppliers of the drugs used for lethal injection.

As expected, Hill has filed a certiorari petition in the U.S. Supreme Court, seeking review of this decision.  The case is Hill v. Owens, No. 14-6033.

What Answer for the Latest Beheading?

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In my post about ten days ago, I took the President to task for what I regard as his complacent response to the beheading of journalist James Foley.  The post had a political edge to it, possibly to an excessive degree, but its ultimate point was that no punishment other than the death penalty could even conceivably pass for justice in the face of such a grotesque crime.  There ensued an exchange in the comments section that elaborated this point.

Today, it got more elaboration in the worst possible way, to wit, by the release of an almost identical tape showing the equally horrible beheading, with the equivalent of a switchblade, of a second journalist, Steven Sotloff.

It seems to me that, in the face of what cannot be regarded by a sane person as other than pure evil, the arguments against capital punishment fade to black  -- or, put another way, to simple obstinacy.  

The death penalty is accepted by our people, our history and our law.  It's accepted in most parts of the world.  In those parts of the Western world where it has been eliminated, it's only because elitism triumphed over democracy.  

As these beheadings illustrate beyond serious argument, there are cases in which none of the usual abolitionist excuses even arguably applies.  It has nothing to do with Jim Crow, bad lawyers, Brady claims, poor schools, PTSD, intelligence tests and all the rest. What it has to do with is whether our country retains, or forfeits, the clarity of vision and moral confidence to see savagery when looking it in the face, and answer as George Washington and Franklin Roosevelt did.   

We shall see.
Prof. Sara Sun Beale of Duke Law School is, in my view, a more balanced intellect than one usually encounters in academia.  Her recent article seems to assume that having more information makes it more likely that one will oppose capital punishment  --  an assumption with which I disagree.  But her article has the virtue of laying bare one of the key facts about the abolitionist movement  -- that it lacks popular support even where it succeeds, and essentially is led by those who look down at "trailer park trash" and "women with big hair."  

The abstract of Prof. Beale's piece, found at SSRN, explains:

What explains the difference between the United States and the many other countries that have abolished capital punishment? Because the United States and many other nations that have abolished the death penalty are democracies, there seems to be an obvious answer: abolition or retention reflects the preferences of the electorate. According to this view, the U.S. electorate is simply more punitive, and the question becomes explaining the difference in national attitudes. There is some truth to this explanation. As I have argued elsewhere, the U.S. public generally does favor punitive criminal justice policies. But that cannot be the whole story. Other nations have abolished capital punishment despite widespread public support -- in many cases, support of more than 70 percent of the public at the time of abolition. In the United States, however, after the Supreme Court imposed a de facto moratorium on capital punishment in the early 1970s, strong public support led to its reintroduction in two-thirds of the states.

This paper explores the relationship between public opinion and the abolition or retention of the death penalty, comparing the U.S. experience to that of other nations (with a particular focus on Germany, France, the United Kingdom, and Canada). Although the experience of each country includes distinctive elements, several common themes emerge. In each country, political elites led the abolition movement. The structure of the electoral process and the parliamentary party system, moreover, allowed legislators and other public officials a degree of insulation from popular opinion. The elites differed from their electorates in education, experience, and knowledge of the issue. Because of these differences, support for capital punishment was much lower among these elites than among the general public. In abolishing capital punishment, the elites acted in accordance with their own views, rather than those of the median voter or the general public. Some scholars have characterized this type of political behavior as the "elite leadership hypothesis." Additionally, international agreements and norms played a significant role in Europe, making abolition difficult to reverse once enacted and helping to persuade other nations to abolish capital punishment despite the existence of popular support. Finally, abolition (whether de jure or de facto) has had a tendency over time to reduce public support for capital punishment, thus diminishing popular pressure to reverse course


Remember Clayton Lockett, the Oklahoma murderer who supposed died of a heart attack rather than the lethal injection?  Well, never mind.  An independent autopsy found he did indeed die of the lethal injection drugs, Tim Talley of AP reports.

An autopsy on an Oklahoma inmate who died after his troubled execution was halted concluded that he was killed by the lethal drugs, but it doesn't explain why he writhed, moaned and clenched his teeth before he was pronounced dead about 43 minutes after the process began.
This execution still counts as "botched," in my view, but it is the only one in years that does.  We can't say with confidence that he was "under" from the beginning of the procedure, which we can with the others.

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