Recently in Death Penalty Category

A Prop. 66 Landslide?

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The Institute for Social Research at Sacramento State U. has this poll of 622 likely California voters surveyed October 7-13.

Proposition 66 would aim to speed up the death penalty court process in California. For example, it would require the superior court to review initial petitions, increase the number of available attorneys to accept those appeals, and allow condemned inmates to be housed at any state prison.

Do you plan to vote 'YES' to change these death penalty court procedures, or 'NO' to make no changes to existing procedures?

51%      Yes (1)
20         No (2)
29         Undecided/Don't Know (8)

Georgia Executes Cop Killer

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The State of Georgia executed Gregory Lawler last night for the murder of Atlanta police officer John Sowa in 1997.  Lawler wounded Officer Pat Cocciolone in the same incident.  Rhonda Cook has this story in the Atlanta Journal-Constitution on the execution and this earlier one on the denial of executive clemency.  The U.S. Supreme Court's "green light for the green mile" order is here.

Cook notes that the basis of the clemency petition was "Lawler's recently diagnosed autism."  Seriously, now.  The man was 63.  If he had autism in the severity that would justify clemency, everyone who knew him in his entire life would have known it.  It would not be a recent discovery.

Georgia evidently still has pentobarbital.

KCRA Report on Cal. DP Propositions

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Mike Luery of KCRA, the NBC affiliate in Sacramento, has this report on California's dueling death penalty propositions, including a brief appearance by your humble blogger.

SurveyUSA Poll on Prop. 62

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SurveyUSA has released another California poll.  As with the two previous polls (noted here and here), they surveyed on Prop. 62, the death penalty repeal initiative, but not on Prop. 66, the "fix it" initiative.

Prop. 62 has slipped three points since the previous poll and now trails by 18%.  The pollsters still characterize it as "headed for defeat."

Crosstabs (the breakdown by various groups within the total) haven't changed too much, although there is an interesting indication that repeal has lost considerable support with black voters.  For the survey collected Sept. 8 - Sept. 11, black voters favored 62 by a slim majority, 51-36.  However, for the most recent survey, conducted Oct. 13 - Oct. 15, the slim majority goes the other way, 41-52.  That is a change from +15% to -11%, or a 26% swing.  Crosstabs have higher margins of error than the overall poll due to the smaller sample size of the subgroups, so this result should be treated with caution, but even so that is quite a shift.

More on Elmore

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In addition to the excerpts from the Attorney General's brief in the Clark Elmore case, noted here, readers may also wish to consider the following excerpts from the opinion of the Supreme Court of Washington:
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office.  See also the excerpt from the Supreme Court of Washington in the follow-up post.

Stockton Record Gets It Right

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Those of us who fight for justice in the worst murder cases have become accustomed to having the press almost entirely on the side of the murderers. I was pleasantly surprised this Sunday morning to read this in the Stockton Record:

Our editorial board was divided on these death penalty propositions. Our consensus is a no vote on Proposition 62 and yes on 66. We do not feel the death penalty should be abolished with so many on death row (whose sentences would be converted to life in prison). We do, however, concur that the process for legal challenges should not be so drawn out.
The Record also endorsed a "no" vote on Proposition 57, a trifecta of good sense in the criminal justice arena.
The Florida Supreme Court has decided the case of Timothy Hurst on remand from the U.S. Supreme Court decision in Hurst v. Florida.  The majority wrongly interpreted the high court decision to require that the jury be unanimous in all of its decisions, not just the finding of the death-eligibility circumstance.

To insulate its error from a likely reversal by the high court, the Florida Supreme Court cynically added the state constitution as an additional ground for its holding, casually tossing out forty years of precedent from the restoration of capital punishment in the 1970s until the decision in Hurst.   Stare decisis?  We don't need no stinking stare decisis.

When Florida's Legislature was considering how to fix its statute in light of Hurst, the debate was all about whether to authorize a less-than-unanimous penalty verdict or go for the single-juror-veto law that lets one juror impose his will over the objection of the other 11.  I tried to tell them that the Arizona/California method of requiring the jury to be unanimous one way or the other was the way to go, and they blew me off.  Maybe now they will listen?
From 1987 to 1991, U.S. Supreme Court precedents created an atrocious and unjust imbalance in the penalty phase of capital cases.  Under the dubious rule of Lockett v. Ohio (1978), the defendant had (and has to this day) the unlimited right to bring in "any aspect of a defendant's character or record ...  that the defendant proffers as a basis for a sentence less than death."  So the defendant can bring in his family to offer real or fabricated stories of his childhood with little or nothing to do with the crime.  His mother can testify as what a very good boy he is (when he is not raping, torturing, and murdering children).  The Constitution requires this, the Supreme Court solemnly informed us, even though it never did prior to the 1970s and has not been amended in this respect.

Under the rule of Booth v. Maryland (1987), on the other hand, the victim's family was prohibited from testifying about the victim or about the impact of the murder on them.  The result was that they had to sit in silence as the defendant's family humanized him, while the victim remained nothing more than abstraction.

The high court saw the error of this injustice four years later and partially overruled Booth in Payne v. Tennessee (1991).  We at CJLF are proud to have played a rule in that badly needed correction.  However, Booth was not completely overruled.  Victim impact evidence is now admissible, but the opinions of the victim's family as to the appropriate sentence are not.

The Oklahoma Court of Criminal Appeals apparently needed to be reminded of that latter proviso, and the U.S. Supreme Court did so this morning, without dissent, in Bosse v. Oklahoma, No. 15-9173.  Justices Thomas and Alito concurred:
The New Mexico House of Representatives today passed the death penalty restoration bill, HB 7, by a vote of 36-30.  Regrettably, the vote was along party lines.  Hopefully some of those "no" votes won't be back in 2017.  The Senate adjourned without considering the bill, allowing its members who would have voted no to chicken out and not face the voters with an express vote on the record.

Although the bill will not be enacted this year, it is a landmark.  A restoration bill has passed a house of an American legislature for the first time after a period when the other side had the legislative momentum.  Hopefully favorable votes by the people of Nebraska and California a month from now will add to the momentum in the correct direction.
Associated Press has this report.

A proposal to reinstate the death penalty in New Mexico has cleared a new hurdle in the state Legislature.

The appropriations and finance committee in the House of Representatives recommended approval Monday night of a bill to reinstate capital punishment by lethal injection for convicted killers of police, children and corrections officers.

The proposal moves next to the full House, which reconvenes on Wednesday.

Republican New Mexico Gov. Susana Martinez and allies in the Legislature are pushing to revive the death penalty in response to the recent killings of two police officers and the sexual assault, killing and dismemberment in August of 10-year-old Victoria Martens in Albuquerque.

Committee members voted 8-6 along party lines to advance the bill, with Democrats in opposition.

Deliberations over the death penalty are spilling over into fall election campaigns. The entire Legislature is up for re-election in November.

It would certainly be a good thing if some members lost their seats over opposition to restoration.

A journalist asked me the other day if my support for California Proposition 66 wasn't "going against a trend," as if going against a trend was a mortal sin.  Some trends should be gone against, and this is one of them.  Between New Mexico, Nebraska, and California, maybe we will turn the tide and start a trend in the other direction.

California Proposition Poll

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SurveyUSA has this poll on California's ballot propositions, among other things.

"Proposition 62, which would end the death penalty in CA and replace it with life in prison, trails by 15 points today and is headed for defeat." If that sounds familiar, it's nearly identical to what the same poll found about two weeks ago, noted in this post.

"Proposition 63, which outlaws large-capacity magazines and requires background checks on ammo purchases, leads by more than 2:1 and will pass." 

"Proposition 64, which would legalize, regulate and tax recreational marijuana, is supported 52% to 41%. Caution advised."

And Proposition 66, which would streamline the death penalty and allow us to restart executions?  They didn't poll on it.  Again.

The pollsters note:

Polling ballot measures and citizen initiatives is an inexact science. In general, having nothing to do with California specifically and having nothing to do with 2016 uniquely, opposition to a ballot measure increases as Election Day approaches. Rarely does support for a ballot measure increase over time. It is likely that opposition to Propositions 56, 62, 63 and 64 will increase once early voting begins on 10/10/16. This may alter the calculus on recreational marijuana Proposition 64, which today has the most fragile advantage of those measures tested.
New Mexico's largest newspaper has this editorial supporting Gov. Susana Martinez's drive to reinstate capital punishment in that state.

And while it won't bring back [Officer Gregg] Benner, a military veteran who was shot by Romero last Memorial Day during a traffic stop, reinstituting the death penalty for those who kill law enforcement officers would not only force such murderers to face the death sentences they have single-handedly delivered, but common sense and New Mexico history dictate that it would act as a deterrent. Nothing else will for this hardened class of criminal.
In mid-August, Bill and I both noted a poll by the Institute for Government Studies at Berkeley on the competing death penalty propositions.  That poll found the repeal proposition losing by 45-55 and the reform proposition winning by a landslide 76-24.  See also the IGS press release.

Last week, I noted a SurveyUSA poll showing the repeal proposition "trails by 16 points today and is headed for defeat."  Also noted the same day was a USC/LA Times/SurveyMonkey poll showing Prop. 62 down by 11%.  Neither of these polls asked about the reform measure, Prop. 66.

Now we have a poll done by Field and IGS, the same organization as the first poll above, that has a dramatically different result.  This one shows repeal at 48% yes, 37% no, and 15% undecided, while the reform measure is at 35% yes, 23% no, and 42% undecided.

As Seinfeld would say, what's up with that?  Has there been a dramatic shift in public opinion since the first IGS poll?  Not likely, given the essentially consistent results on 62 in the other two recent polls.

When I see dramatic differences like this in polls, the first thing I suspect is wording of the questions.

Another Poll Note

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Jazmine Ulloa has this post on the LA Times political blog noting a "a new USC Dornsife/Los Angeles Times poll conducted by SurveyMonkey."  This one shows Prop. 62 losing by 11%, 40-51. 

I have my doubts about SurveyMonkey's method, and I wouldn't put too much weight on it.  Self-selected samples are dicey, even when "corrected" for demographic factors.  Nate Silver and crew at 538 rate SurveyUSA an "A" and SurveyMonkey a "C-."  Even so, when multiple sources give you more-or-less consistent results, it does boost confidence in those results. 

There is an interesting contrast in the two polls on the age crosstab.

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