Recently in Death Penalty Category

There are three ways to fix Florida's death penalty law -- the good, the bad, and the ugly. 

The good way is to pass a true unanimity law, requiring the jury to be unanimous one way or the other, i.e., the California/Arizona model.  The bad way is to continue with nonunanimous penalty verdicts, okay for now but leaving an issue to attack the law in the future.  The ugly way is to adopt a single-juror veto system, the kind that caused the grotesque miscarriage of justice in the Colorado theater shooting case.

The House Judiciary Committee's Criminal Justice Subcommittee chose the bad way on February 2, recommending PCB CRJS 16-07.  At least they rejected the amendment for the ugly option.

In the Senate, on the other hand, the ugly option was adopted in SPB 7068.

My letter to the Senate committee chairman, recommending the good option, is here.  No one seems to be listening.
The death penalty came up briefly in the Clinton-Sanders debate.  Even though it came second, let me quote Sanders first:

MADDOW: Senator Sanders, you have singled out the death penalty, and Senator Clinton's support for the death penalty, as an issue that makes it hard to consider as progressive in your mind...

SANDERS: ... Look, I hear what the Secretary said, and I understand, but look, there are -- all of us know that we have seen in recent years horrible, horrible crimes. It's hard to imagine how people can do, bomb, and kill 168 people in Oklahoma City, or do the Boston Marathon bombing, but this is what I believe, and for a couple of reasons.

Number one, too many innocent people, including minorities, African Americans, have been executed when they were not guilty. That's number one. We have to be very careful about making sure about that.

Too many?  Name one, Senator Sanders.  Name one demonstrably innocent person executed in the modern capital punishment era (1976+).

For many years, Roger Coleman was the poster boy as the absolutely, incontrovertibly innocent person wrongfully executed.  Then improved DNA technology conclusively proved him guilty.  Oops.  Then they latched on Cameron Willingham, a case where the arson evidence was shown to be inconclusive.  (Contrary to myth, the arson evidence does not affirmatively show accidental fire.)  When AP contacted the jurors, every one they could find said that would have made no difference, because it never was the forensic evidence that convinced them in the first place.  The most damning evidence against Willingham was his own words and actions, all of which still stand.

"We have to be very careful about making sure about that."  Correct.  And we are.
Georgia executed murderer Brandon Jones shortly after midnight, using pentobarbital.  As usual with single-drug barbiturate executions, there were no complications.  AP reports:

Jones was initially still with his eyes closed and then swallowed a couple of times and moved his head slightly. He opened his eyes at 12:36 a.m. (5:36 GMT) and turned his head to his left, appearing to look toward a clock hanging on the wall. Then he closed his eyes again and took a few deep breaths before falling still.
Few of us are going to die that peacefully or painlessly.  So why was there a bitter 6-5 division in the Eleventh Circuit Court of Appeals?  Because the State of Georgia will not disclose the source of its pentobarbital. 

Is that a genuine problem?  No, as Judge Marcus explains for the majority (emphasis added):

Delaware Death Penalty Repeal Defeated

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I am told that the Delaware House of Representatives today voted down the death penalty repeal bill (SB 40), 16-23.

I feel like it's the Battle of the Bulge in World War II.  The enemy has made a hard thrust and gained some ground, but we have now stopped his advance, and a renewed push in the right direction is in the near future.

Update:  Randall Chase has this report for AP.

Breaking News: Dog Doesn't Bite Man

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As the old journalism saying (or perhaps cliche) goes, if a dog bites a man, that's not news, but if a man bites a dog, that's news.  So how much less newsworthy is it if a dog does not bite a man?

An anti-death-penalty organization breathlessly announced in an email today the "BREAKING" news that (gasp! horrors!) the United States Supreme Court has denied review in a case where the defendant sought to raise, for the umpteenth time, the question the high court settled definitively forty years ago this coming July -- no, the Constitution does not forbid capital punishment.

The case is Walter v. Pennsylvania, No. 15-650.  SCOTUSblog has a case page on it, though I don't know why.

Would it be news if SCOTUS turned down a petition asking it to decide if federal courts had authority to decide whether a statute is constitutional, a question it decided in 1803?  How about one asking for a decision on whether racial segregation of public schools is constitutional, a question it decided in 1954?  Gregg v. Georgia is no less solid than those precedents.

What is the point of the email?  This "really bad news" is an occasion to send the organization money.
Following up on my earlier post, here is a second draft of amendments to Florida Statutes.  I have rearranged and expanded some of the provisions and also added comments explaining some of the language.

Another issue is what to do about the existing judgments.  I have some thoughts on that, also, but I don't want to delay the publication of this proposal.

The Slow Drip of the Eighth Amendment

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My friend Prof. Josh Blackman at the Law School of the University of South Texas is more pessimistic than I about the prospects that the Supreme Court will outlaw the death penalty, but he does a brilliant job of describing the Court's potentially "abolition-by-slow-drip" jurisprudence:

I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don't want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone.

The article is worth your read for Josh's acidly humorous description of the back-and-forth between Justices Scalia and Kennedy. 

I am not for the moment going to describe at length why I think Josh is wrong about the death penalty's ultimate fate.  Suffice it to say that I'm decently sure that rejecting per se abolition has four sure votes (Roberts, Scalia, Thomas and Alito) and two likely ones (Kennedy and Kagan).

Justice Kennedy has a good deal of skepticism about the death penalty (see, among numerous other sources, his opinion for the Court in Kennedy v. Louisiana), but is slightly too mindful of precedent  --  and perhaps the longstanding national consensus favoring capital punishment  -- to go for outright abolition (see his agreement without concurrence in the Court's opinion in Glossip).

Justice Kagan said at her confirmation hearing that she did not share the view of Justice Marshall (for whom she clerked) that the death penalty is per se unconstitutional.  Instead, she said capital punishment is settled law "going forward."  She also did not join Justice Breyer's broad-brush dissent in Glossip, and was with the majority in last week's opinion in Kansas v. Carr, in opposition to Justice Sotomayor. 

A First Draft of a Florida Fix

After the break is my first cut at a post-Hurst fix for Florida's capital sentencing statute.

Alabama and Hurst

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Jo Deann Campbell was raped and murdered 23 years ago.  She was 23 years old.  It took as long as her entire too-short life to carry out justice in this case.  See today's News Scan and this article by Kent Faulk at

The perpetrator argued against Alabama's execution protocol, similar to the one upheld by the Supreme Court last year in Glossip v. Gross.  He did not appear to get any traction with that, and the execution "went exactly as planned," according to the Prison Commissioner.

He also argued that last week's decision in Hurst v. Florida, discussed here, applies to Alabama's system.  The Court did not buy it and denied relief, although Justice Breyer did buy it.  Justices Sotomayor and Ginsburg seemed inclined to it on the merits but said that procedural obstacles would preclude relief.  They could be referring to the procedural default rule, the anti-retroactivity rule of Teague v. Lane, the deference rule of 28 U.S.C. ยง2254(d), or all three.

What do the other six Justices think?  They may well agree with the Alabama AG's argument, which is substantially the same as the one in my post earlier today:

"Second, and more importantly, unlike in Florida, the jury in Brooks's case specifically found the aggravating circumstances necessary to impose the death penalty. Specifically, the jury's unanimous guilty verdicts of capital murder during the course of a robbery, burglary, and rape, proved the existence of an aggravating circumstance under Alabama law," according to the AG's brief.
The Supreme Court needs to clear this up immediately.  This is much too important to leave hanging.
Update:  See the follow-up post, regarding an execution in Alabama which the Supreme Court allowed to go forward even though the murderer was making a Hurst claim.

Throughout the United States Supreme Court's modern capital punishment jurisprudence, it has clearly distinguished two separate determinations to be made in capital sentencing.  The difference is explained in, among many other cases Tuilaepa v. California, 512 U.S. 967, 970-971 (1994):

Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Coker v. Georgia, 433 U. S. 584 (1977). To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase.
*            *            *
We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Different requirements apply to these two decisions.  Most pertinently here, Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002) very explicitly confines its jury trial holding to the eligibility decision, i.e., the finding of at least one aggravating circumstance, and not to the weighing or the ultimate penalty decision.

Did the Supreme Court in Hurst v. Florida throw away the distinction between these two decisions that it has so carefully constructed and explained over so many years?  Some people are claiming it did.  I find that inconceivable, particularly since just a week later the Court reasserted the distinction in Kansas v. Carr, an opinion joined by eight Justices, including six who joined the Hurst opinion.

Yet the people making that claim have some sloppy language in the Hurst opinion to back them up.
The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason.  The Carr brothers are Kansas's exemplar of why the death penalty is necessary.  Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.

Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice.  It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature.  Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.

And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.
Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent.  Bravo.

In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection.  Blurring that distinction is an error, because the two decisions are quite different.  The jury instruction issue in this case illustrates the importance of keeping that distinction clear.
In 1976, the U.S. Supreme Court reviewed and approved the Florida system of capital punishment in Proffitt v. Florida.  In that system, the jury enters the verdict of guilt of first-degree murder and makes a recommendation on sentence, but the trial judge makes the final decision on sentence and makes the essential finding that at least one "aggravating circumstance" exists.

The Florida Supreme Court added a gloss that the judge's "override" would, in practice, only work in one direction.  A jury recommendation of life in prison was essentially final, while a jury's recommendation of death could be overridden.  The Florida system is thus more favorable to the defendant than leaving the decision to the jury alone.

Over the years, the Supreme Court more than once rejected claims that this system or the similar systems of other states violated anything in the Constitution.  Then in the 2002 case of Ring v. Arizona, the Supreme Court stabbed the states and the people in the back and simply changed its collective mind, accepting the argument it had previously, unequivocally rejected.  Stare decisis, the principle of observing precedent, was thrown overboard, and the decision did not even mention the massive reliance of the states on the earlier decisions.

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring, a foolish and unnecessary risk.  In most capital cases the existence of at least one aggravating circumstances is perfectly obvious, and there is virtually no cost in having the jury go ahead and make the finding.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Connecticut Death Penalty Hearing

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Generally speaking, legislatures can make reductions in punishments retroactive to old cases or not, as they choose.  The Connecticut Legislature's repeal of the death penalty was unambiguously not retroactive, and politically it would not have passed without that savings clause.  The ink was not dry on the bill before the anti-death-penalty crowd attacked that clause of their own bill.  In a shocking act of judicial activism, the Connecticut Supreme Court in Santiago v. State declared the death penalty unconstitutional despite having rejected that claim many times over the years and despite the established history of nonretroactive changes in sentencing law in that state.

Last Thursday's News Scan noted the oral argument in the case of State v. Peeler, in which the state asks the Supreme Court to reconsider its decision.  Video of the argument is now available here.

The defense lawyer's argument is really painful to watch.  He just keeps insisting over and over that the Santiago decision must be respected as final.  So why did Santiago itself not respect as final all the earlier cases rejecting constitutional attacks on the death penalty?  The defense side seems to think that precedent is a ratchet.  No decision favoring the prosecution is ever final.  Every one is subject to constant attack.  But once the defense wins a point, it becomes absolutely sacrosanct.  This is utter nonsense.

A decision should receive no more respect as precedent than it gave to precedent.

Condescension Squared on the Death Penalty

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For sniffing arrogance surrounded by blunderbuss error, it would be hard to top the Economist piece noted here about the supposed demise of the death penalty in America.  It maintains, for example:

The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate -- but probably brief -- swansong.

While readers might want to have a look at the article for its record-setting Holier-than-thou attitude, they might also want to get a lesson on the myriad ways in which abolitionists are trying to lie their way to success.
The North Carolina Supreme Court has sent back to the trial court the cases on that state's ill-conceived, misnamed, and since repealed "Racial Justice Act."  The purpose of that act is to defeat rather than promote justice, and it allows murderers to overturn their sentences based on the kind of statistics-based arguments rejected by the U.S. Supreme Court in McCleskey v. Kemp.  (See my law review article for background on the racial statistics controversy.)

Jacob Gershman has this article in the WSJ.

The state supreme court vacated the decisions in favor of the murderers, but it did so on the narrow ground that the trial judge did not allow the prosecution sufficient time to gather evidence to rebut a large study submitted to support the claim.  That means the case goes on. 

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