Recently in Death Penalty Category

A Misquote on BBC News

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Reporters often wrongly paraphrase what I say and sometimes quote out of context, but it's rare that the words inside the quote marks are wrong.  One of those rare misquotes appears on BBC News today, with essential words left out:

"Anyone who says the death penalty has no deterrent effect either doesn't know what they are talking about or are lying," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which has supported death penalty cases throughout the country.

"The debate over studies supporting its deterrent effect is whether they have sufficiently shown it."

What I actually said was "Anyone who says it has been definitively proved that the death penalty has no deterrent effect either doesn't know what they are talking about or are lying."

Big difference.  Many people believe the death penalty does not deter.  On the present state of the evidence, they are entitled to their opinion.  What they are not entitled to say on the present state of the evidence is that their opinion is a conclusively proved fact, but misinformed or dishonest people often say that.  I would never say that the evidence definitively proves that the death penalty does deter, but the Beeb quotes me as saying just that.

I have sent in a request for a correction.

Update:  The quote has been corrected.

Update 2:  The paragraph immediately before the quote says:

Both sides in the debate cite studies supporting respective claims about the death penalty achieving or not achieving deterrence - currently studies supporting the latter appear to have the upper hand.

The story provides no basis for the "upper hand" statement.

Last November, I noted the introduction of H.R. 4493 by Pennsylvania Congressmen Marino and Barletta.  This bill would eliminate the nonsensical "single-juror veto" system in the penalty phase of federal capital cases, replacing it with a true unanimity requirement where the jury must be unanimous one way or the other, as in the guilt phase.

On Wednesday, Senators Toomey, Cotton, Cornyn, and Cruz introduced a parallel bill in the Senate, S. 2389.

Death Penalty Focus is predictably unhappy.  They quote a capital defense lawyer warning in grave tones, "Obviously, this bill would invite a lot of constitutional scrutiny."

Seriously?  California has had this law since 1978.  That's eight years of review by the California Supreme Court under the reign of the notorious Rose Bird followed by over 30 years of scrutiny by the federal Ninth Circuit.  If two of the most vehemently anti-death-penalty courts in American history haven't found a constitutional problem with this law in four decades, doesn't that indicate it is quite solid?

Texas Execution

Yesterday, we noted the upcoming execution of John Battaglia in Texas, the second in that state in a week.  Battaglia was indeed executed last night.  The U.S. Supreme Court orders denying a stay and review of lower court decisions are here and here.  No dissent is noted from either order.

Callum Paton reports for Newsweek:

Without remorse or humility until the end, killer John Battaglia, who murdered his two young daughters in his Texas home in 2001, laughed and taunted his ex-wife as he was executed Thursday.

Battaglia saved his last words for his ex-wife, Mary Jean Pearle, The Dallas Morning News reported. "Well, hi, Mary Jean. I'll see y'all later. Bye," he said to Pearle, who had come to watch him die.

As he drew his last breaths, 17 years after Battaglia had killed her two children, Pearle was heard to say "I've seen enough of him" as she walked away from his motionless body, separated by a glass window.

Battaglia's demeanor was described as "jovial" as he prepared to meet his end by lethal injection at the Huntsville Unit in Texas.

The Dallas Morning News has this story by Tasha Tsiaperas with contribution from AP.

Two Texas Executions in One Week?

Once a state has its execution protocol set up and running, is there any reason it can't carry out sentences as fast as the court system finishes reviewing the judgments?  The Ohio Supreme Court pointlessly insists that executions be a month apart.  Texas carried out one execution Tuesday and has another scheduled for today, and today's is certainly well deserved.  Jolie McCullough reports for the Texas Tribune:

Texas is preparing to carry out its second execution of the week Thursday, putting to death a Dallas man who fatally shot his two daughters while their mother listened on the phone.

If his pending appeals are denied, John Battaglia, 62, will be the third person to be executed in Texas in 2018. No other state has held an execution this year.

*      *      *

Battaglia killed his daughters while they were at his house for dinner in May 2001, according to court records. He had just learned there was a warrant out for his arrest after he harassed their mother and his ex-wife, Mary Jean Pearle. He got Pearle on the phone and had his oldest daughter, 9-year-old Mary Faith, ask her why she wanted Battaglia to go to jail.

Before the screams and gunshots, Pearle heard her daughter's last words: "No, daddy, please don't, don't do it."

California Execution Protocol

The California Department of Corrections and Rehabilitation announced a new execution protocol yesterday.  Although Proposition 66 expressly made the Administrative Procedure Act inapplicable, CDCR has chosen to send the protocol to the Office of Administrative Law for publication under an optional procedure.

Maura Dolan has this post at the L.A. Times web site.
Prof. Joseph M. Bessette has this article with the above title in the Catholic World Report.  The article is partly a Catholic theological argument, but it is also an empirical argument on deterrence.

Examples such as these powerfully refute the claim that the death penalty never deters. Though many large-scale empirical studies have purported to find a substantial deterrent effect (as we detail in our book), others have challenged these findings, and among quantitative social scientists the issue remains unresolved. But this should not surprise us at a time when executions per year (51 between 2000 and 2015) are dwarfed by homicides per year (15,600 during the same period). Even if each execution saved 5-10 lives (a midrange for the studies that reported deterrence), the total number of lives saved would amount to only a few percent of all homicides. It is simply not likely that social scientists could discern such a statistically small effect, especially when year-to-year changes in homicides are driven by a host of social conditions independent of punishment practices: drug use, gang wars, economic conditions, immigration patterns, etc. Yet, even a small deterrent effect (say in the range of 2-3) would have saved several thousand lives from the nation's 1,465 executions since 1977. And of course if the death penalty does deter, it would save more lives if it were used more often.
Thanks to Dudley Sharp for the link.
From the following news report:

An illegal immigrant began his murder trial for the 2014 killings of two Northern California sheriff's deputies on Tuesday with a profanity-laced rant, calling a partner of one of the slain officers a "coward."

Prosecutor Rod Norgaard recounted the events that led to the death of Sheriff's Deputy Danny Oliver outside a Sacramento motel in October 2014, and described how Oliver's partner, Deputy Scott Brown, was able to retreat from the heavy gunfire.

Luis Enrique Monroy Bracamontes, 37, the alleged killer, interrupted the court when he grinned and called Brown a "coward." 

"I wish I had killed more of the mother-------s," Bracamontes told the court. He continued: "I will break out soon and I will kill more, kill whoever gets in front of me...There's no need for a f---ing trial."

Bracamontes defense attorneys cited the outburst as more evidence that their client is unfit to stand trial.

One of the reasons you gotta love defense attorneys is for their unflagging ability to find some reason that their client's behavior, no matter how disgusting, means that he should escape accountability.  I am constrained to agree with them, however, that Mr. Bracamontes is have any further chance to do what he very credibly says he aims to do.

DOJ Set to Increase Use of the Death Penalty

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Some of my law professor friends (including Doug Berman, whom I had the pleasure to see at the AALS convention in San Diego a few days ago) have been asking when Attorney General Sessions is going to make more of a push for the death penalty.  The answer came today from, among other outlets, the Wall Street Journal:

"The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime. In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit. The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016. The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations. Mr. Sessions views the death penalty as a 'valuable tool in the tool belt,' according to a senior Justice Department official. The official said the death penalty isn't only a deterrent, but also a 'punishment for the most heinous crimes prohibited under federal law.' The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said." 

Because federal criminal jurisdiction is limited, certainly compared to the states, increased willingness to use the death penalty in federal law will only slightly increase the number of capital cases.  Its principal significance is signalling a welcome new direction from the top..
Reuters reports from Jerusalem:

Israel's parliament gave preliminary approval on Wednesday for legislation that would make it easier for a court to impose a death sentence on assailants convicted of murder in attacks classified as terrorism.

Israeli military courts - which handle cases involving Palestinians in the occupied West Bank - already have the power to issue the death sentence, although this has never been implemented. The only case of an execution in Israel was carried out against convicted Nazi war criminal Adolf Eichmann in 1962.

The amendment to the penal code would still require three more readings if it is to become law. Currently, a death penalty can only be imposed if a panel of three military judges passes sentence unanimously. If the amendment is adopted, a majority verdict would suffice.
There were few judges in the federal courts more consistently pro-criminal than the late Harry Pregerson.  Nominated for the Ninth Circuit by President Carter, Judge Pregerson was particularly noteworthy for being asked point-blank in his confirmation hearing whether he would vote for his own opinion about the outcome of a case or a contrary result required by the law, answering that he would vote his own opinion, and being confirmed anyway.  Give him points for candor, at least, both in that answer and remaining true to it until this year.

Today, on the very last day of the year, a divided three-judge panel of the Ninth Circuit overturned the conviction in a California capital case, with Judge Pregerson casting the deciding vote.  Judges Reinhardt and Pregerson voted to grant the writ of habeas corpus, reversing District Judge Ronald Lew and effectively reversing the California Supreme Court.  Judge Jacqueline Nguyen dissented.  The four federal judges to review this case, therefore, divided evenly, yet the decision is to overturn the judgment of the state courts.

But wait.  Judge Pregerson died November 25.  Doesn't that matter?  Apparently not.  "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete," the opinion says.

Yet Another Cause Célèbre Really Did It

The tent has finally folded on the Reginald Clemons circus.  As with so many other poster boys for the anti-death-penalty crowd, he is indeed guilty.  Robert Patrick and Joel Currier report for the St. Louis Post-Dispatch:

Reginald Clemons, who was sentenced to death for the 1991 killings of two sisters at the Old Chain of Rocks Bridge before his conviction was overturned in 2015, pleaded guilty to murder and other charges Monday in exchange for multiple sentences of life in prison.

Clemons, 46, pleaded guilty to five counts in all: two counts of second-degree murder, two counts of rape and one count of first-degree robbery.

Clemons admitted that he and three others met Julie Kerry, 20, and Robin Kerry, 19, and their cousin on the closed bridge late on the night of April 4, 1991.

They robbed the cousin, Thomas Cummins, of cash and a watch, Assistant Attorney General Gregory Goodwin said in court. They then raped the Kerry sisters, forced all three through a manhole and onto the substructure of the bridge and pushed the Kerrys off, he said. They forced Cummins to jump from the bridge at gunpoint, Goodwin said, but Cummins survived.
Update:  Kelly Choate of KBRE/KYOU interviewed Don Williams, the father of Officer Eric Williams.

Congressman Tom Marino of Pennsylvania today issued this press release:

Washington, D.C.--Today, Congressman Tom Marino (PA-10) and Congressman Lou Barletta (PA-11) introduced H.R. 4493, Eric's Law, named in honor of fallen Bureau of Prisons Correctional Officer Eric Williams.

On February 25, 2013, Bureau of Prisons Correctional Officer Eric Williams was viciously murdered by an inmate at United States Penitentiary Canaan in Wayne County, PA. The inmate was jailed at USP Canaan serving an 11-year sentence for his role in gang-related drug trafficking in Arizona. The inmate had also been convicted in Arizona for the murder of a rival gang member and was scheduled to serve a life sentence following his incarceration at Canaan.

In the trial for Eric's killer, there was no dispute of guilt with the defense stating that he was guilty "beyond all reasonable doubt." The jury deliberated for 5 hours and returned a split decision, with 11 jurors in favor of the death penalty and 1 juror voting for life in prison. One juror flatly stated during deliberations that they would not vote for the death penalty, stating that she had a son in prison and that she felt bad for the defendant's mother.  This resulted in an automatic sentence of life in prison with no possibility of parole.  Since the defendant was already scheduled to serve life in prison, there essentially was no consequence for the brutal murder of Eric.

Hidalgo v. Arizona

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Jordan Rubin has this article in BNA's Criminal Law Reporter looking at the certiorari petition in Hidalgo v. Arizona, No. 17-251, on yesterday's SCOTUS conference list.  This is Neal Katyal's quixotic effort to get the Supreme Court to reopen the question it settled 41 years ago in Gregg v. Georgia, i.e., that capital punishment is constitutional.  I don't think it has much of a chance, as noted in the story.

Stay tuned for the orders list, 9:30 a.m. EST Monday.

Update:  The case has been relisted for the December 1 conference.
A quadruple murderer whom 11 out of 12 jurors believed should be executed has been let off with life in prison due to the state's ill-conceived single-juror veto law.  AP reports (emphasis added):

A Florida man convicted of killing his ex-girlfriend, her new boyfriend and her parents has avoided the death penalty.

The Tampa Bay Times reports 11 of 12 jurors voted Tuesday for 32-year-old Adam Matos to be executed, but without unanimous agreement, Matos automatically received a life sentence. The jury convicted him last week of four counts of first-degree murder.

Authorities say Matos fatally shot Megan Brown and her father, Greg Brown, at their Hudson home in 2014. He also fatally beat Margaret Brown and Nick Leonard with a hammer, jurors heard.

When the Hurst-fix bill was going through the Florida Legislature, I told everyone who would listen that a single-juror veto system (1) is not constitutionally required; and (2) will lead to arbitrary results and miscarriages of justice.  Nobody was interested.  This is the result.

Once more, with feeling, the right way to do it is the way Arizona and California do it.  The jury must be unanimous one way or the other to reach a verdict, just like in the guilt phase.  If the jury hangs in the penalty phase, declare a mistrial and empanel a new jury, just like in the guilt phase.  Why can't everyone who isn't dead set against the death penalty see that?

I  bring you the beginning of this story from the Washington Post, revolting even by the standards we sometimes need to discuss on this blog (emphasis added):

About 4:02 p.m. on Friday, police in Jerseyville, Ill., were dispatched to the Jersey Community Hospital in response to a 6-year-old boy's death.

Police say the child starved to death last week after his father and stepmother spent two years withholding food from him as punishment.

The boy, barred by Michael Roberts and Georgena Roberts from eating regularly since December 2015, died Friday weighing just 17 pounds, according to court documents. 

Some questions:  Do you think this was really "punishment" for anything?  Do you think it might just have been torture for the fun of it?  How do you think it feels to be starving to death for a third of your life?  Do you think a jail term, whatever its length, is proportionate to the grotesquely prolonged cruelty and sadism of these people?

UPDATE:  Most comments come in during the first day.  I see now, after waiting that day, that our usual abolitionist spokesmen  --  seldom at a loss to tell us how morally and intellectually superior their stance is  --  have nothing to say about this case.  It's usually a mistake to construe silence as an admission, but not this time.

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