Recently in Death Penalty Category

David Muhlhausen, a Heritage Foundation research fellow for the Center for Data Analysis, has this article with the above title at U.S. News & World Report. He cites several of the studies noted on our deterrence page.  The full list of citations and abstracts is here.

The anti side is trying to create the impression that the deterrence debate is over and they have won.  They frequently cite a report by Nagin et al., funded in part by a government grant and published by a government agency, saying that the studies do not provide sufficient proof to base policy decisions. 

The paper clearly states in the front matter that it represents only the opinion of the named authors.  (It may not even represent that, as James Q. Wilson, by far the biggest name on the cover, died before the final report was issued.)  It is not any kind of official conclusion by the funding agency, but the other side tries to represent it as such. 

Opponents who are either especially mendacious or who have been misled by their own movement's cleverly worded half-truths will claim that deterrence has been affirmatively disproved.  No one who is both knowledgeable and honest claims that.

Nitrogen Executions Considered Seriously

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We have mentioned several times on this blog the possibility of dumping lethal injection and returning to gas as a method of execution.  One possibility is to simply displace oxygen with a neutral gas, the cheapest and most readily available of which is nitrogen. Amy Jenson reports for KXII:

State Representative Mike Christian of Oklahoma City suggests using nitrogen gas for executions. Christian says it would be painless for inmates and affordable for Oklahoma.

Local State Representative Pat Ownbey says he's in favor of a more humane method, and wants to see more research on the gas.  Now, several professors at East Central University in Ada will take on the task.

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Christian has organized a team of researchers at East Central University to study the gas and its effects. Professor Michael Copeland claims nitrogen hypoxia will make people feel euphoric or drunk. If a person inhales nitrogen gas, the person will quickly become unconscious and die within minutes.
As I noted on this blog over three years ago, I experienced hypoxia in the altitude chamber in Air Force flight training and know it to be painless from that personal experience.

The Oklahoman has this editorial, concluding "state lawmakers, Christian in particular, deserve credit for taking a serious, thoughtful approach to this ultimate application of government power."

Jury Tampering

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In Seattle, jury selection has finally begun in the trial of a notorious case that has already been delayed far too long by bizarre rulings by the trial judge.  Here are links to prior posts in this case:

May 2013:  Strength of the Evidence
Sept. 2013: Wash. Sup. Ct. Overturns Bizarre Ruling on the Strength of Evidence
Oct. 2013:  Prosecutor's Discretion to Seek the Death Penalty
July 2014:  Washington Supreme Court Reverses Another Absurd Order in the McEnroe/Anderson Case

CarnationTrialJuryTampering.pngNow, I am informed, the Washington Coalition Against the Death Penalty is handing out flyers at the entrance to the courthouse.  Hundreds of persons have been summoned for the venire, so naturally a large portion of the people entering the courthouse on this day will be prospective jurors.

The flyer is here.

Coincidence that WCADP chose this day and this location to hand out flyers?  Of course not.  This is jury tampering, and it is a crime.

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.

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