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Proposition 66 Update

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As reported on August 24, the California Supreme Court on that day upheld the death penalty reform initiative approved by the people in last November's election.  The court rejected every argument made by the opponents and their supporting amici (including a gaggle of law professors who dubbed themselves "Constitutional Law"), and most of the arguments were rejected unanimously.

On September 8, the petitioner filed a petition for rehearing (79).  The next business day, the court gave itself (80) until November 22 to consider it, postponing the finality of its decision.  Since the new effective date of Proposition 66 and the stay order previously entered are tied to finality, this effectively postpones the implementation of Proposition 66 an additional month.

I very much doubt that the main decision -- that Proposition 66 as a whole is valid -- is in any danger.  The court likely gave itself extra time to resolve some differences between the majority opinion and the concurrence (which is also joined by a bare majority of the court) regarding the weight to be given to the time limit sections.

There are, however, many parts of Proposition 66 that can and should be implemented immediately.  The removal of execution protocols from the Administrative Procedure Act, in particular, affects the consideration of the new protocol by the Office of Administrative Law as well as the validity of an injunction placed on executions by the Marin County Superior Court.  For these reasons, the campaign committee filed on Monday, along with its Answer to the Petition for Rehearing (81), a Motion to Vacate or Modify Stay (82).

The documents in the case are available here.  The numbers in parentheses above are the document numbers in this dropbox.

The USA is in the same category as ... ?

Yesterday I posted a comment, the 16th, to Bill's August 30 post "Is the United States Isolated in Using the Death Penalty?"  Knowing that comment threads have diminishing audiences, I thought I would copy it as a post:

In death penalty debates, the anti side regularly asserts that having the death penalty places the United States in the same category with despotic regimes. Nonsense.

Any rational system of classification begins with the most important distinctions at the top, separating the major categories. Biological classification, for example, begins with separating plants from animals, only later gets down to separating felines from canines, and later still separates dogs from wolves.

If you wanted to classify countries by their legal systems, you would begin with such major distinctions as (1) providing due process of law, (2) not criminalizing political dissent, free exercise of religion, etc., and (3) democratic adoption of the governing laws.

In a classification tree of countries' legal systems, then, by the time we got down to whether a system had capital punishment or not, the United States would be in the same category as Japan, and perhaps India and Taiwan. (I don't claim to be knowledgeable on their legal systems, so I hedge on that.)

Should it bother us that we are with Japan rather than Italy? Doesn't bother me in the slightest.

A:  Although we are often told that the answer is "yes," in fact the answer is "no, not at all."

Now if abolitionists wanted to ask whether the United States is isolated among predominately white countries in using the death penalty, there would be a different answer.  But being politically correct, they prefer to avoid that question.

Next question:  There are eight countries in the world with a population over 150,000,000.  How many have an active death penalty?

Answer:  Seven.
CBS 13 Sacramento has this story following up on the Proposition 66 decision, noted here.  The report includes some elements of the earlier story, but the new material features Sandy Friend, whose 8-year-old son suffered horrifically at the hands of a true monster.
Support for the death penalty comes in cycles.  It was  getting lower in the late Fifties, hit bottom in about 1967, accelerated quickly for about the next three decades as the increasing number and gruesomeness of murder sunk in with the public.  It then started falling for maybe 15 or 20 years as the murder rate plummeted.

The question is where it goes from here, and the answer is up.

First. abolitionism has already gobbled up the conceptual low-hanging fruit (eliminating the death penalty for16 and 17 year-old's and mental defectives), and had its success in the low-hanging, liberal states (Illinois, New Jersey, Washington, New Mexico, etc.).  The terrain, both for geography and argument, is tougher from here on in.

Second, the cycle of crime has again turned bloody and brutal. This has been happening since late 2014.  There is decently clear evidence (in several state elections last year) that the courts, probably with one eye on public opinion, will be headed in  a different direction. Today's landmark win by Kent in the decidedly liberal California Supreme Court  --  and a lopsided win at that  -- is not a warning shot.  It's a bullseye in abolitionism's fuselage.  And, of course, measures to abolish the death penalty lost everything they could at the ballot box last year. Finally, the actual number of executions nationwide seems headed for a slight but noticeable increase over last year, one of the very few times this has happened in the last two decades. 

When a SCOTUS majority said two years ago in Glossip v. Gross that the death penalty is constitutional, the handwriting was on the wall.  Essentially nothing has gone right for abolitionism since then, and certainly since London, Barcelona, and Charlottesville. Well-publicized and especially cold-blooded murders by Jihadists, and now by Nazis, put the death penalty debate in a new light.

Let me just say it in plain language:  The Brownshirts are back and the public knows it.  We got a searing lesson at ghastly cost when we hesitated in dealing with them last time 80 years ago.  

Never again means never again.

The bloody tide of recent history; a SCOTUS majority that understands the problem (and is likely to get better with new members appointed by President Trump); and now an acceleration of grisly murders with terrorist and/or Nazi overtones  --  all this, in my view, will make a difference in the public's appreciation of the symbolic value of capital punishment.

All in all, the outcropping from the California Supreme Court's ruling, and the evidence from our streets, suggests that the problem  --  hate-driven murder  --  Is well-suited to, if it does not demand, the expedited procedures we will now see.coming into place in the Golden State. Abolitionism is in trouble. Abolitionists' mistake was in believing that an oasis here and an oasis there made an ocean. It didn't, and even the oases are starting to dry up. 

Proposition 66 Upheld

Prop66.jpgThe California Supreme Court today upheld the death penalty reform initiative, Proposition 66, rejecting the attacks on the initiative nearly across the board.  The court was unanimous in rejecting the attacks that would have invalidated the initiative in its entirely.  It divided 5-2 on the interpretation of the five-year limit and on the provision that allows superior court decisions in habeas corpus cases to be appealed to the intermediate courts of appeal rather than the state supreme court.

The case is Briggs v. Brown, S238309.

CJLF has this press release.

We have press coverage from Maura Dolan in the L.A. Times; Cheryl Miller in The Recorder; Sudhin Thanawala and Brian Melley for AP.

KOVR, CBS-13 in Sacramento has this report with me and archival footage of opponent Ron Briggs.
Joe Palazzolo reports for the WSJ (emphasis added):

A Johnson & Johnson company opposes plans by Florida authorities to use one of its drugs in an upcoming execution, marking the first time the world's largest pharmaceutical manufacturer has waded into the death penalty debate.

Earlier this year, Florida amended its lethal injection protocol to include etomidate, an anesthetic agent that has never been used in executions, after exhausting its supply of the sedative midazolam.

Florida authorities are slated to use the updated protocol for the first time on Thursday in the execution of Mark Asay, who was sentenced to death for the 1987 killings of Robert Lee Booker and Robert McDowell in Jacksonville, Fla.

Scientists at Johnson & Johnson's Janssen Pharmaceuticals NV created etomidate in the 1960s. The company no longer distributes the drug, which is still used in hospitals.
Excuse me, J&J, but if you no longer make or distribute this drug, and if the patent expired long ago, how exactly is this any of your damn business?

They Keep Lying and Lying

The main problem in being an advocate for robust law enforcement is not putting up with repeated smears from the other side.  Kent and I have been called fascists and bloodlusters too many times to remember.  After a while, you get used to it as the way many people (although not the majority) on the other side do business.  (I have also been called a kapo and  --  get this  --  a necrophiliac.  I think Kent has missed out on those two bouquets, so far).

No, the main problem is not that the Left smears but that they lie.  "Lie" is a strong word, but it's the only one that correctly captures what's going on.  Moreover, they generally lie with impunity.  While the more adult advocates on the Left will criticize insult as a means of debate, only a handful will call out the lying.  Even when they do, it's largely excused as being merely push-the-envelope advocacy.

Two recent examples of flagrant lying come to mind.

Evil or Crazy?

When a shocking incident such as the Charlottesville car-murder occurs, we have to wonder if the perpetrator is evil or crazy.  Six years ago, Jared Loughner killed six people and wounded many others at a congressional event in Tucson, Arizona, and most people initially believed it was an act of political terrorism.  It turned out Loughner was floridly schizophrenic.

From the picture emerging out of Virginia, it appears that James Fields is mostly evil but maybe a little crazy.  Dake Kang and Sarah Rankin have this story for AP.  Along with being an admirer of Adolf Hitler and Nazi Germany, it appears that he beat his own mother and threatened her with a knife.  He also was diagnosed with schizophrenia at one point, but it does not appear so far that his mental illness was on the same scale as Loughner's.

Bill argues in this post that the crime calls for the death penalty.  At this point, Fields has been charged with second-degree murder, which would preclude that sentence.  The charge could be upgraded as further facts develop, however.  Stay tuned.
We don't yet know all the facts about the Charlottesville murder, but it certainly seems on the present evidence to amount to this:  A Nazi or Nazi sympathizer ran down a fellow citizen, killing her, because she was in a political protest with which he disagreed.

I support the death penalty for a number of reasons, but the Charlottesville murder, like the Boston Marathon murders and Charleston church massacre, illustrates the main one. There is some behavior so pernicious, and so grossly outside the boundaries of peaceable life as we have come to understand it, that we as a polity have the right to say no and mean it.  Not merely to gush with remonstrance.  To act, with certainty and force.

I have my doubts that the death penalty should be reserved for "the worst of the worst," even supposing that phrase could be subject to any operational definition.  But even if I'm wrong about that, this episode, if it is what it seems to be, qualifies under any definition.

Nazism, Aryan supremacy, or racial supremacy of any kind has a history.  We don't have to guess where it leads.  Slave ships and the ovens at Dachau and Buchenwald tell us.  A society that lacks the moral confidence to put a permanent end to actors this barbaric lacks the moral confidence to do anything.

USCA5 Denies Stay to Texas Murderer

The U.S. Court of Appeals for the Fifth Circuit has denied a stay of execution for Tai Chin Preyor.  Let's start with what he did:

Briefly, Preyor was convicted and sentenced to death in Texas in March 2005, for the 2004 capital murder of Jami Tackett during the course of committing or attempting to commit burglary. He stabbed her numerous times, severing her trachea, jugular vein, and carotid artery. He was arrested on the grounds of her apartment complex, covered in blood. The jury rejected his claim of self-defense, convicted him and sentenced him to death.
Here are the legal issues:

Tai Chin Preyor was convicted of capital murder and sentenced to death in 2005. He challenged his conviction and sentence on direct appeal, in state post-conviction proceedings, and a federal habeas proceeding. No challenges were successful. On July 17, 2017, ten days before his scheduled execution, he filed a motion under Federal Rule of Civil Procedure 60, seeking to reopen his federal habeas proceedings under Rule 60(d)(3) (fraud on the court) and/or Rule 60(b)(6) (extraordinary circumstances). He claimed that his former habeas counsel of record, Brandy Estelle, who had been retained to represent him by his mother, committed a fraud upon the court by acting largely as a puppet for Philip Jefferson, a now deceased California attorney who had been disbarred in 1990, and by concealing Jefferson's habeas involvement from the court. Preyor sought to have the district court restore him to the position he was in before Jefferson and Estelle filed the federal habeas petition on his behalf, so that he can now assert a new claim that his trial counsel rendered ineffective assistance by failing to investigate, discover, and present mitigating evidence of physical and sexual abuse and substance addiction.

Justice Rebooted in Ohio

Alan Johnson reports for the Columbus Dispatch:

Ronald Phillips could not avoid his seventh execution date.

After six postponements, the 43-year-old Summit County man was executed Wednesday for a murder he committed 24 years ago, a week into Bill Clinton's first term as president. Phillips' victim was Sheila Marie Evans, the 3-year-old daughter of his then-girlfriend.

The time of Phillips' death was 10:43 a.m. at the Southern Ohio Correctional Facility near Lucasville.

The execution was completely calm with none of the complications or reactions of the last execution.
The last-minute legal maneuvering involved the three-drug protocol with midazolam as the first drug.  States have had to turn to this controversial method since the "guerrilla war against the death penalty" succeeding in cutting off the preferred barbiturates.  A Sixth Circuit panel originally upheld the district court's preliminary injunction against executions, but the full court reversed.

Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court thought the same procedure is likely invalid. We respectfully disagree and reverse the court's grant of a preliminary injunction.

Phone Access During Executions?

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Because of what are said to be "botched executions," abolitionists (both those who admit they are and some who don't) are pushing for the right to have access to phones during the execution process so that they can reach judges in the event of, shall we say, incipient botching.

Should they get it?

Kent and I think not.  We are quoted in a balanced article by Jordan Rubin in Bloomberg BNA.

"If we are to have an effective death penalty, as the Supreme Court has said the Constitution allows, then, at some point, the opportunity for litigation must come to an end," William Otis told Bloomberg BNA via email.

Evolving Standards of Denial

Kent noted SCOTUSblog's end-of-Term symposium on the death penalty.  I was briefly invited to write a piece for it, then dis-invited within a matter of hours.  This may have been because the hosts wanted to avoid a surplusage of death penalty backers (I would have been the third; there are five abolitionists writing).

The symposium features what has become the usual abolitionist mix of (1) grasping at straws of hope and (2) down-in-the-mouth despair, but I admire the authors' ability to get so much written down so quickly.

The concluding paragraph of one of the entries drew my attention.  It is this:

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: "[R]ather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution." That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

I think there's a problem here.
SCOTUSblog has a symposium on the U.S. Supreme Court's capital cases this term.  The index of posts is here.

My contribution is here.

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