Recently in Death Penalty Category

As noted here and here last week, the U.S. Supreme Court declined, 5-4, to issue a stay of execution for Oklahoma murderer Charles Warner, who raped and murdered a baby. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.
Although it takes five votes to grant a stay, it only takes four to take up a case for full briefing and argument, and the Supreme Court today granted certiorari in the underlying case.  The case is No. 14-7955.  It is now titled Glossip, et al. v. Gross, et al., because Warner's case has reached the point of ultimate mootness.

Mark Sherman has this story for AP; Adam Liptak and Erik Eckholm cover it for the NYT.

Update:  Robert Barnes and Mark Berman have this story in the WaPo.

Last week's execution of Warner, who was put to death for raping and killing an 11-month-old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, "My body is on fire."
"As the process began" is significantly misleading.  As I noted previously, the actual observation by the television reporter was:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Big difference.  Warner's statement is not evidence that the drugs being used are painful and cruel.  It is evidence that inmates facing execution are being coached to fake it, and some of them are going along with it.
More dallying in death penalty review, and more potential for game-playing, are likely to be the results of today's per curiam Supreme Court opinion, as reported by the Heritage Foundation:

In ordinary civil litigation, if a plaintiff fails to file a complaint on time, the plaintiff cannot do so later; he loses. In habeas corpus cases, however, the filing period can be tolled for equitable reasons. In this case, the original lawyers for Christeson, a condemned state prisoner, did not file a habeas petition on his behalf before the filing time had elapsed. Different lawyers later sought to be substituted as counsel for Christeson so that they could argue that his earlier lawyers had abandoned him, a claim that Christeson's original lawyers could not advance without damaging their own professional interests. The district court refused to allow the new lawyers to become Christeson's counsel, however, and the Eighth Circuit dismissed the appeal for lack of jurisdiction, apparently reasoning that Christeson's new counsel were not authorized to file an appeal on his behalf. In a per curiam opinion for seven Justices, the Supreme Court reversed and held that only new lawyers could adequately raise the claim that there was a conflict of interest between Christeson and his original counsel, a claim that, if accepted, would excuse Christeson from not having filed his habeas petition on time. Alito filed a dissenting opinion, joined by Thomas, concluding that the Court ought not to have decided the case without full briefing and oral argument.  

The opinion is  CHRISTESON v. ROPER, No. 14-6873. 

Execution Follow-Up

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Yesterday, Justice Sotomayor's dissent in the Oklahoma case credited the murderer's experts that the procedure risked extreme pain if the midazolam did not sufficiently anesthetize the inmate before the second and third drugs were administered.  Do the statements of baby-rapist-murderer Charles Warner -- "It feels like acid" and "My body is on fire" -- confirm her fears?

Nope.  One of the witnesses was Abby Broyles of Oklahoma City television station KFOR:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Before?  What's up with that? 

A year ago, an inmate about to be executed told guards that his lawyer urged him "to fake symptoms of suffocation" during his execution.  See this post. He reportedly told the lawyer no way.  Did Warner receive similar urging and go along with it, but get the timing wrong?  We will never know, but that seems to be the most likely explanation.

Broyles said it did not appear Warner was in pain. He never raised his head off the gurney and did not convulse the way Lockett did last April.

Sean Murphy with the Associated Press said afterwards, "It appeared the sedative worked."
The two executions noted in today's News Scan have been carried out.  In the Oklahoma case, the Supreme Court voted 5-4 to deny a stay on the murderer's claim regarding the use of midazolam as the first drug of the three-drug protocol.  Justice Sotomayor wrote a dissent.

The only reason any state uses midazolam is that pentobarbital, the drug veterinarians use every day for euthanasia, is unavailable.   It is made in the United States but its manufacturer, Akorn, places resale restrictions on its distributors.  Akorn does that because the agreement by which it acquired the rights to the drug from Lundbeck, a European company, requires it to.  Lundbeck was pressured into restricting sale by anti-death-penalty forces in Europe.

So here we are with a domestic policy choice that is ours to make and none of Europe's damn business being impacted by Europe, with the perverse result that there is some possibility that murderers may suffer more pain in execution as a result, if the concerns noted in Justice Sotomayor's opinion have any validity.

The solution is simple.  Congress can and should declare resale restrictions on pentobarbital void as restraints on trade and against public policy.

Justice for a Cop-Killing on Camera

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Rhonda Cook reports in the Atlanta Journal-Constitution:

The Georgia Department of Corrections on Friday set a Jan. 13 execution date for Andrew Howard Brannan, who murdered a 22-year-old Laurens County deputy during a 1998 traffic stop.

If Brannan is put to death by lethal injection, he will be second man Georgia has executed in little more than a month; Robert Holsey was executed on Dec. 9 for murdering a Baldwin County deputy.

In January 1998, Laurens County deputy Kyle Dinkheller stopped Brannan on Interstate 16 for speeding, driving at 98 mph.

All that happened after Brannan was pulled over was captured by a video camera on the deputy's car.

Kate Mather and Richard Winton report in the LA Times:

Federal prosecutors will seek the death penalty against the man charged in the deadly 2013 shooting at Los Angeles International Airport, according to court documents filed Friday.

Paul Anthony Ciancia, 24, was charged with 11 federal counts in connection with the Nov. 1, 2013, attack that killed one Transportation Security Administration officer and wounded three other people. Authorities allege Ciancia walked into the airport's busy Terminal 3 and opened fire with a semiautomatic rifle.
The decision is obviously correct, and this is one of the few homicides that really should be prosecuted as a federal offense.  The homicide victim was a federal officer targeted specifically because of his federal duties, as are two of the wounded victims.

The current Administration has been reasonable in seeking the death penalty in federal cases where it is warranted, but it is derelict in carrying it out. 

Another Promise to Victims Broken

Opponents of the death penalty know very well that they are on their least defensible ground when the focus is on a real capital case.  When the people know what one of the very worst murderers has done and they see and hear the families of victims calling for justice, the case for execution as the only adequate consequence is so clear to most people that the opponents have little to stand on.

When capital punishment repeal bills are being pushed through legislatures, the last thing the repealers want is for the vote to be characterized as one to overturn the well-deserved sentences of the vicious killers presently on death row.  It is just as wrong, of course, to preclude justice for the as-yet-unknown atrocities to be committed in the future, but in terms of politics and public perception, it is far more difficult for them to block it in a known case with human faces.

So the repealers routinely include nonretroactivity provisions in the repeal bills, promising that the existing sentences will not be affected.  They did that in New Mexico, Connecticut, and Maryland.  But the promise is hollow.

To the surprise of no one, outgoing Maryland Governor Martin O'Malley has commuted the sentences of the remaining murderers on that state's death row, Brian Witte and Ben Nuckols report for AP. 

USCA9 Drops Henry Like A Hot Potato

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The strange case of Arizona murderer Graham Henry continues.

Three weeks ago, I noted that the U.S. Supreme Court had taken the unusual step of directing the Court of Appeals for the Ninth Circuit to answer Arizona's petition for an extraordinary writ.  The state was challenging the Ninth's decision to stay the mandate in Henry's case while it considers another case, McKinney v. Ryan, even though the panel in Henry had decided that it really makes no difference to that case how McKinney comes out.

Two days after the Supreme Court's order, the Ninth reheard McKinney en banc.  Today, the Chief Judge issued an order in Henry saying,

Having heard the argument in McKinney, and having considered the record and the briefs filed by the parties in this case, the Court concludes that: (1) the facts and legal arguments are adequately presented in the briefs and record, and that the decisional process would not be significantly aided by oral argument; and (2) a stay of proceedings and further en banc consideration in Henry is not necessary to secure or maintain the uniformity of the Court's decisions.

Therefore, this case is submitted for decision without oral argument. Fed. R. App. P. 34(a)(2). Henry's motion for a stay of proceedings pending the issuance of a decision in McKinney is DENIED. En banc proceedings in this case are concluded. The Clerk is directed to issue the mandate.
I don't know what the Ninth will say to the Supreme Court in its response next Wednesday, but in substance it will probably amount to something equivalent to the famous words of Gilda Radner, "Oh, never mind."

I don't seriously believe that it was the oral argument in McKinney that changed their minds.  Oral argument is rarely that illuminating.  Everything they needed to know was in the papers.

Sean Murphy has this story for AP with the above headline.

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country that most enthusiastically support the death penalty might have a change of heart. They didn't.
Kudos to Murphy for recognizing that only one execution in recent times actually qualifies for the designation of "botched."  Categorizing a few others as "troubling" is not troubling.

Why are the opponents scratching their heads?  Why do they think that support for the death penalty is so fragile that any bump in the road should shatter it, no matter how many times they are disappointed?

USCA9 Flips Yet Another Death Sentence

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Twenty-five years ago, in Tucson, Arizona, Eric Mann conceived a cold-blooded plan to cheat another man in a drug deal and then kill him to cover it up.  When the customer brought someone else to the transaction, Mann killed them both according to his plan.

After Mann's claims against his death sentence were heard and rejected by the Arizona Supreme Court, the trial court on collateral review, the Arizona Supreme Court again, and the federal district court, Mann appealed to the Ninth Circuit.  The panel assigned was Judges Sidney Thomas, now Chief Judge, Stephen Reinhardt, and Alex Kozinski.  Knowing nothing about the legal issues but only from the composition of the panel, can you guess the outcome?

Jordan Resumes Executions

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BBC reports:

Jordan has executed 11 men convicted of murder, ending an eight-year moratorium on the death penalty in the country.

The interior ministry said the men, convicted in different cases, had been hanged at dawn on Sunday.

Jordanian authorities gave no reason for the lifting of the 2006 moratorium on capital punishment.

Interior Minister Hussein Majali recently said the public blamed a rise in crime on the non-application of the death penalty, AFP news agency reports.

Pakistan Resumes Executions

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Two convicted terrorists were hanged in Pakistan, AFP reports.

Pakistan hung two convicted militants in the first executions in six years and security forces killed more than 50 suspected militants on Friday (Dec 19) as the country's leaders vowed decisive action in the wake of a Taliban school massacre that left 149 people dead.

The bloody rampage in the northwestern city of Peshawar on Tuesday brought international condemnation and promises of swift, decisive action against militants from Pakistan's political and military leaders.

Pakistan's de facto foreign minister Sartaj Aziz told AFP the attack was his country's own "mini 9/11" and a game changer in its fight against terror.

Prime Minister Nawaz Sharif relinquished the six-year ban on the death penalty in terror-related cases two days after the school attack.

Two militants convicted of separate terrorism offences were the first to face the noose at a jail in central Punjab province, the province's home minister, Shuja Khanzada, told AFP.

The Tennessee courts issued this press release earlier this month.

The Tennessee Supreme Court will hear oral arguments on December 18 in Nashville in an appeal by the State opposing the requests of several death row inmates who are seeking the identity of individuals involved in the lethal injection process.

The appeal arises from a challenge to the constitutionality of the Tennessee Department of Correction's execution procedures for lethal injection on various grounds by 11 of the state's death row inmates.

A Note on Death Sentence Rates

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The DPIC report to be released tomorrow, noted in the previous post, will also make a big deal about the number of death sentences per year being much lower than it was at the peak of 1996.  The regular drumbeat from the other side talking about sentencing and incarceration numbers as if they were independent of crime rates continues to both amaze and dismay.  Even worse is that people who should know better take this seriously.

Instead of the irrelevant number of death sentences, we should begin by looking at the number of sentences relative to the number of homicides.  Homicides rates have dropped nearly in half since the mid-90s, due in part to the tough sentencing that our opponents so strenuously opposed.  Using a two-year lag (death sentences over murders of two years earlier), the number of death sentences per 1000 murders this year was 38% of what it was in 1996.  That is a large drop, but not nearly as large as the irrelevant number you get comparing the simple count of sentences.

Why the drop?  Well, we have always said that the death penalty should be reserved for the worst of the worst.  In the early days after the restoration of capital punishment, it was not too unusual to see a death sentence for a simple robbery in which the victim was killed with no other major aggravating circumstances.  That is much less common today.  Prosecutors are more selective in seeking the death penalty, and juries are more selective in imposing it.

The other side has always said that is how it should be.  Now that it increasingly is that way, they cite that change as evidence that America is turning away from the death penalty.

Update:  David Savage has this story in the LA Times.

Update 2:  The Wall Street Journal, disappointingly, completely blows it by uncritically regurgitating the DPIC's spin.  Not a single mention of the drop in the murder rate over the same period.

Exoneration Inflation, Continued

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Of all the propaganda efforts of the anti-death-penalty movement, the most successful has been the notorious "innocence list," which can be found on the website of the Death Penalty Information Center.  Six years ago, Ward Campbell published in the IACJ Journal (Institute for the Advancement of Criminal Justice) an article titled Exoneration Inflation noting the various ways that people have been included on the list even though they had not been determined to be actually innocent or if their cases were simply irrelevant to the debate over the present system because they were sentenced under a different, since-abandoned system.

Surprisingly, three of the latter made it on to the notorious list just this year.  Three men convicted in Ohio for a 1975 killing and removed from death row just a couple of years later when the statutes were struck down have now been released altogether.  It is indeed regrettable that they spent so much time unjustly in prison, but the cases have nothing to do with the current death penalty debate.  They were not sent to death row under a law anything like any law now in effect in the United States or that has been in effect for 36 years.

In a report to be released tomorrow the DPIC will crow about a "record" number of "exonerations" of "former death row inmates," but the fact that these three were briefly on death row under a long-ago abandoned system has no relevance to our current capital sentencing system.

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