The StandDown Texas Project

Ohio Innocence Project Presses Death Row Case

AP reporter Andrew Welsh-Huggins writes, "Condemned Ohio killer of 3 says he's innocent," via the Dayton Daily News.

An organization devoted to freeing innocent inmates has gone to bat for a condemned Ohio killer, a rare move for a group better known for using DNA evidence to challenge convictions in non-death penalty cases.

The Ohio Innocence Project says Kevin Keith did not kill three people, including a 7-year-old girl, and wound three others in a 1994 shooting in Bucyrus.

"This case gave me grave concerns," project director Mark Godsey said. "I feltwe should weigh in."

The group, which has asked the Ohio Supreme Court to consider Keith's claim of innocence, generally steers clear of death penalty cases because inmates already have attorneys making their case. In this one, Keith's public defenders say there is another suspect and that a police detective lied about a witness' statement.

And:

Innocence claims by Ohio death row inmates are relatively rare. Ohio public defenders have filed only a handful of similar claims in the past five years. The state has 172 men and one woman on death row.

The shooting happened Feb. 13, 1994, at an apartment in Bucyrus, about 65 miles north of Columbus.

Prosecutors say Keith entered the apartment and sprayed it with gunfire, killing Marichell Chatman, 24; her 4-year-old daughter, Marchae; and the child's aunt, Linda Chatman, 39. Marichell Chatman was the brother of an undercover police informant whose efforts led to a four-count indictment against Keith for selling drugs, according to prosecutors.

Three others were shot that night but survived: Richard Warren, who would testify against Keith at trial; Quanita Reeves, 7; and her brother Quinton Reeves, 4.

Keith's public defenders say they uncovered evidence that bolsters a theory first presented at Keith's trial: that there was another suspect.

That person was a suspect in a series of pharmacy robberies around the time of the killings. He testified at trial that he told surviving family members that the shootings might have been in retaliation over the informant.

'Scent Lineups' Stink to Critics

That's the title of a report in today's USA Today written by Kevin Johnson.  LINK

Two federal lawsuits are casting a harsh spotlight on an investigative tool long beloved by American law enforcement: a bloodhound's nose.

Lawsuits filed in Victoria, Texas, allege that Fort Bend County Sheriff's Deputy Keith Pikett and his team of hounds — James Bond, Quincy and Clue — failed controversial sniff tests known as "scent lineups."

Much like in traditional lineups, the dogs link human scents left at crime scenes to samples from suspects.

In each case, the suits allege, Pikett's dogs called attention to the wrong person. Both former suspects have been cleared.

The legal challenges are "a first for us," says Randall Morse, an assistant county attorney who is representing Pikett. He says the hounds have worked about 2,000 cases across the country, including the search for Olympic Park bomber Eric Rudolph.

And:

Defense lawyers say the technique smacks of forensic voodoo and casts further suspicion on the broader use of scent dog evidence.

"It's a fraud on so many levels," says Jeffrey Weiner, former president of the National Association of Criminal Defense Lawyers.

Since 2004, two men in Florida and one in California have been freed after DNA evidence exonerated them. They had been convicted, in part, on the use of scent evidence, according to the Innocence Project, which uses DNA to exonerate the wrongly convicted. Pikett's dogs weren't involved in those cases.

National Police Bloodhound Association spokesman Dennis Guzlas says the association urges that scent lineups be used with caution.

An Interview With Sandra Day O'Connor

The Daily Beast today has "A Justice Reflects."  SDO was interviewed by Walter Isaccson, the CEO of the Aspen Institute, author, and former journalist.  Here's an excerpt:

Are you happy that a woman, Sonia Sotomayor, has been nominated to fill the latest vacancy on the Supreme Court?

I should say so. I was disappointed when I stepped down that I wasn’t replaced by a woman. It’s important for people to look around and see that women, who make up slightly more than 50 percent of the population, are represented on the court.

Judge Sotomayor’s supporters say that her background and life story would make her a good addition to the court. Should such things matter in picking a justice?

We’re all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court. We have our life experiences. For example, for me it was growing up on a remote ranch in the West. If something broke, you’d have to fix it yourself. The solution didn’t always have to look beautiful, but it had to work. So that made me a little more pragmatic than some other justices. I liked to find solutions that would work.

You were the last elected official to serve on the court. You were the Republican leader in the Arizona state Senate, and you served in all three branches of state government. Was that important to your work on the High Court?

Absolutely. And here’s something I want to emphasize. It’s important for the Supreme Court to have a broader set of life experiences than just people who have served as judges. Judge Sotomayor’s appointment would mean that all nine justices are products of the federal courts of appeals. It used to not be that way. I was from state government. William Rehnquist had never been a judge before he was appointed to the Supreme Court. Lewis Powell had never been a judge. But they had broad real-life experiences, and I thought that helped make them good justices. In years past, you always had people on the court who had not spent their entire career as judges.

Do you think empathy is an important quality for a justice, as President Obama has said?

I’m not quite sure what that means. I have always tried to set aside emotional feelings when deciding a case. When you’re deciding an abstract principle, I don’t think it’s helpful to have an emotional attachment. But you do have to have an understanding of how some rule you make will apply to people in the real world. I think that there should be an awareness of the real-world consequences of the principles of the law you apply.

 Justice O'Connor is one of the speakers at the Aspen Ideas Festival,which continues through July 5; more on the program at the link.

Clemency Denied in Oklahoma

"Oklahoma Pardon and Parole Board denies clemency," is the title of the AP brief, via NewsOK.

The Oklahoma Pardon and Parole Board has unanimously denied clemency for a 32-year-old man facing execution for killing two men in southern Oklahoma. The decision came Monday after testimony from the condemned man, Michael P. DeLozier, and from the family of his victims. DeLozier is set to die by injection July 9 for the 1995 killings of Paul Steven Morgan and Orville Lewis Bullard.

The Joplin Globe carries a longer AP report, "Oklahoma: Board denies clemency for death row inmate."

The Oklahoma Pardon and Parole Board voted unanimously Monday to deny clemency for a man facing execution for killing two campers in southern Oklahoma nearly 14 years ago.

Board members heard two hours of testimony from lawyers, a medical expert, the victims’ family members and the inmate, Michael P. DeLozier, via video connection before making their decision.

Phyllis Morgan, widow of victim Paul Steven Morgan, let out a muffled cheer and embraced a family member after the vote.

The hearing was one of the final avenues of relief left for DeLozier, 32, who is scheduled to die by lethal injection July 9 at the Oklahoma State Penitentiary in McAlester. Had the board decided in favor of clemency, the recommendation would have been forwarded to Gov. Brad Henry, who would’ve had the final say in whether the death sentence was commuted to life in prison with or without parole.

Oklahoma's clemency process is mentioned in the 2005 report "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  Role of Mercy was issued by  Texas Appleseed and the Texas Innocence Network.  Related articles are in the clemency category index.

California's Long Process to Resuming Executions

That's the title of an AP report by Paul Elias, via today's San Francisco Chronicle.  LINK

A Contra Costa County judge last week sentenced Darryl Kemp to death for the random rape and murder of a young jogger. But chances are that Kemp will not be executed anytime soon, if at all.

He is 73. It takes an average of 20 years to execute an inmate in California. And capital punishment has been suspended since February 2006 when Michael Morales came within two hours of execution for the rape and murder of a 17-year-old girl.

On Tuesday, the return to capital punishment takes a step forward when prison officials convene a daylong public hearing on proposed rules for lethally injecting condemned inmates with three drugs. Even if the proposal passes legal muster, reinstating the death penalty is expected to take up to a year.

Whatever is decided in California, where there are 680 condemned inmates, is expected to shape how other states carry out executions.

Since the U.S. Supreme Court signed off on Kentucky's lethal injection process last year and lifted a brief nationwide moratorium, 36 states and the federal government, which employ the execution method, have experienced varying degrees of success in restarting capital punishment.

A federal judge in 2006 halted executions in California until officials expanded the death chamber at San Quentin prison and provided more executioner training and other upgrades to ensure the condemned do not suffer cruel and unusual punishment.

The Department of Corrections and Rehabilitation has since constructed a new death chamber and the proposed new regulations require execution team members to undergo monthly mock executions. The rules would require three syringes, each filled with different drugs, to be administered by staff licensed to give injections in California. A physician must be on hand to declare death.

A state judge ruled that the 42 pages of execution protocols, including instructions for mixing and injecting the drugs, had to be subjected to California's lengthy regulatory process, starting with a 45-day public comment period.

Corrections officials have received more than 1,400 written comments, the vast majority opposed to the proposed procedures or death penalty generally.

And:

Maryland has embarked on a public comment process like California's. A federal judge has ordered a halt to executions in Missouri. And other states such as Texas have carried out a combined 68 lethal injection executions since the Supreme Court's ruling in 2008.

"Death row foes now fight the cost of executions," is Carol Williams' report in today's Los Angeles Times.

Nearly 3 1/2 years into a court-ordered suspension of executions, opponents have embraced a new argument: that Californians can't afford to carry out the death penalty in a constitutional manner.

They contend that by commuting all 682 death row inmates' sentences to life without the possibility of parole, the state could save up to $1 billion over the next five years -- a view expected to be offered, and challenged, during a public hearing today in Sacramento on proposed changes to the lethal injection procedures.

The cost-saving argument has emerged as abolitionists have unsuccessfully lobbied for repeal of capital punishment on moral grounds.

They have been empowered by the state's budget crisis, as well as by some influential law-and-order advocates who have concluded that deficiencies in the legal and corrections systems are beyond repair.

More California death row inmates have died in the time that executions have been halted than were put to death in the previous 30 years: 16 have died since early 2006, 11 of natural causes and five by suicide, compared with 13 put to death since 1976.

Today's six-hour hearing concludes a two-month period for public comment on the revised lethal injection routine that has drawn at least 2,000 written opinions.

Among those calling for commutation on economic grounds are former California Atty. Gen. John Van de Kamp and former corrections chief Jeanne Woodford.

"With California facing its most severe fiscal crisis in recent memory -- with draconian cuts about to be imposed from Sacramento that will affect every resident of the state -- it would be crazy not to consider the fact that it will add as much as $1 billion over the next five years simply to keep the death penalty on the books," Van de Kamp argued.

A death penalty advocate through his long prosecutorial career, Van de Kamp led a review last year of the state's capital punishment apparatus by the California Commission on the Fair Administration of Justice.

The bipartisan panel concluded that the system is dysfunctional and needs nearly $100 million more annually to provide adequate legal representation for capital cases and cut in half what is now an average of 25 years between conviction and execution.

Earlier coverage begins here.

Troy Davis

The Supreme Court ended its term yesterday without acting on the cert petition filed by Troy Davis' attorneys.  Today's Atlanta Journal-Constitution carries the AP report, "Supreme Court delays Troy Davis decision."

Death row inmate Troy Anthony Davis got another legal break Monday when the U.S. Supreme Court recessed for summer without acting on his latest appeal, likely delaying any developments in his case until fall. Earlier, his supporters presented Savannah’s district attorney with 60,000 petition signatures urging him to reopen the case.

Davis has spent nearly 18 years on death row after his conviction for killing an off-duty police officer, and his case has become a rallying point for death penalty opponents worldwide. His attorneys say Davis is innocent of killing officer Mark MacPhail and deserves a new trial after several prosecution witnesses reconsidered testimony given at his 1991 trial.

Davis has been spared from execution three times since he was first scheduled to die by lethal injection in 2007, as various courts have weighed and ultimately rejected his appeals.

Davis’ attorneys filed his latest appeal with the U.S. Supreme Court after the 11th Circuit Court of Appeals rejected their request for a new trial in April. The Supreme Court had not decided whether it would hear Davis’ appeal when justices recessed for the summer Monday. They won’t reconvene until September.

“It’s definitely good news,” said Jason Ewart, Davis’ attorney, who interpreted the court’s inaction as a sign it wants to take a closer look at the case. “It’s not just a move buying more time.”

While the Supreme Court’s in recess, the next move would be up to Chatham County District Attorney Larry Chisolm.

There’s no stay of execution preventing Chisolm from seeking a judge’s order to move forward with Davis’ death sentence. The prosecutor released a brief statement Monday that stopped short of saying he would wait for the Supreme Court before acting.

“As previously stated, the Chatham County District Attorney’s office has no comment on the substance of this case until all appeals are exhausted,” Chisolm said.

Chisolm’s spokeswoman, Lydia Sermons, declined to comment further.

Davis’ supporters say Chisolm has another option. They’re working to pressure Chisolm to reopen Davis’ case without waiting for the courts.

“He doesn’t have to wait for them,” said Martina Correia, Davis’ sister. “He could still open this case at any time.”

Earlier coverage begins with this post from yesterday morning.

The Charles Raby Case

"HPD crime lab back in the spotlight," is the title of Roma Khanna's report in today's Houston Chronicle.

A death row inmate from Houston, whose conviction is receiving new scrutiny after DNA tests contradicted evidence in his case, will return to court next week where his lawyer will seek his release or a new trial.

A Harris County jury sentenced Charles D. Raby to death in the 1994 murder of a 72-year-old woman assaulted and stabbed in her own home. It is a case that once again highlights errors in work from the Houston Police Department crime lab, with the city’s own expert calling the original testimony “incorrect … and not supported.”

State District Judge Joan Campbell on Monday is scheduled to resume a hearing that began in January when Raby’s lawyer presented new DNA tests on scrapings from the victim’s fingernails, which include no evidence from Raby. Since then, his case has stalled as prosecutors and the Houston Police Department sought expert opinions.

Raby’s lawyer, Sarah Frazier, goes so far as to call the crime lab evidence presented at trial false and claimed prosecutors failed to disclose information about the forensic tests that could have helped Raby before his 1994 trial.

“Trying to pretend that Mr. Raby’s trial was at all legitimate is becoming more and more strained,” Frazier said. “He clearly is entitled to a new trial after all this time.”

The Harris County District Attorney’s office has maintained that the new fingernail evidence is inconclusive and does not clear Raby. Prosecutors on the case were unavailable Friday and a spokeswoman for the district attorney’s office declined comment.

In January, Assistant District Attorney Lynn Hardaway said the new evidence should not affect Raby’s conviction because “the absence of DNA doesn’t mean he didn’t do it.”

And:

At Raby’s trial, jurors heard testimony from HPD crime lab analyst Joseph Chu, who told them that tests conducted on scrapings from under Franklin’s fingernails were inconclusive.

Years later, as revelations about chronic problems at the HPD crime lab came to light, Raby’s case received a second look.

Experts questioned Chu’s conclusions. Patricia Hamby, an expert hired by HPD, found that Chu had strayed from accepted procedures for body-fluid testing and had drawn faulty conclusions.

“The reporting of the blood typing of the ‘fingernails’ as ‘inconclusive’ … is contrary to and not supported by the recorded laboratory results,” Hamby wrote in a report last month to Irma Rios, HPD’s crime lab director.

In 2005, the Court of Criminal Appealsapproved DNA testing on the fingernail scrapings. A private lab in California last year completed analyses that revealed the profiles of two men. They matched neither Raby nor Franklin’s two grandsons.

“The grandsons’ exclusion is significant because these were the only individuals who had regular contact with the victim — a frail, malnourished woman in her 70s who rarely left her home or entertained strangers,” Frazier wrote.

In fact, a forensic expert hired by Raby’s lawyers testified in January that it is rare to find foreign DNA under a crime victim’s fingernails, and that if often can be traced to the person’s partner or attacker.

Khanna, who covered the HPD Crime Lab scandal for years, also wrote an earlier version for the Chronicle website, "Judge seeks expert testimony in Death Row inmate's case."

A Harris County judge wants to hear testimony from a forensic expert before deciding whether new DNA evidence is favorable to death row inmate Charles D. Raby, condemned in the 1994 murder of an elderly woman.

Raby’s conviction is receiving new scrutiny because DNA tests contradict evidence from the Houston Police Department crime lab in his case. His lawyer is seeking his release or a new trial.

On Monday, state District Judge Joan Campbell delayed closing arguments in an evidentiary hearing on the DNA evidence to allow testimony from the city’s expert, Patricia Hamby. She has called the original testimony and lab work by HPD analyst Joseph Chu “incorrect … and not supported.”

Hamby, who is based in Indiana, is expected to testify sometime next month. After her appearance, Campbell will decide whether the new evidence is favorable to Raby’s case, a decision that could provide an opening for his attorney to seek his release or a new trial.

The Houston Press has, "Death-Row Inmate Finally Gets A Break In Crime-Lab Case," by Mike Giglio.

An outside expert, Patricia P. Hamby, determined that the much-maligned Houston Crime Lab had been, at best, misleading in reporting its blood work during the original trial. Blood was found under the victim's fingernails, and it belonged to neither Raby nor the victim. Yet analyst Joseph Chu reported the results as "inconclusive".

It remained to be seen whether Hamby's conclusion would be relevant within the narrow confines of Raby's challenge. That question seemed to be answered this morning, when the judge decided to both accept Hamby's testimony into the record and hear from her in person.

That means closing arguments, scheduled for this week, will be put off indefinitely -- yet again -- until Hamby can appear before the judge.

"I don't know exactly who's going to pay for it. I don't know whose witness she's going to be. But one way or another Patricia Hamby is going to come down to Houston and tell us what she discovered," Sarah Frazier, Raby's lawyer, tells Hair Balls. "I think it's powerful stuff."

Related articles are in the crime lab category index; coverage of the HPD Crime Lab problems, here.

Group Sheds Light on Wrongful Convictions

That's the title of a report from News 8 Austin concerning a weekend rally in Austin.  LINK  It was prepared by Jenna Hiller.  News 8 Austin is the Time Warner Cable 24-hour local news channel for central Texas.

A small, but determined group marched to the Capitol Saturday hoping to bring awareness to the number of wrongful convictions in the United States.

Austin's Freedom March was one of 17 across the country. According to group organizers, Texas leads the nation in verified wrongful convictions, with 38 people exonerated by DNA evidence, so far.

"We've seen 133 people exonerated and released from death row, due to evidence of their wrongful conviction, since 1973 and that includes nine here in Texas," Kristin House, with the Texas Coalition to Abolish the Death Penalty, said. "I think it's this issue of whether or not we can get it right, and if we can't get it right 100 percent of the time, should we really be in the business of killing people?"

The majority of Saturday's crowd consisted of a group from Corpus Christi who know Hannah Overton.

In 2007 a jury found Overton guilty of capital murder for poisoning a foster child she and her husband were trying to adopt.

And:

Overton's supporters say she didn't get a fair trial.

"We believe that the jurors found Hannah guilty of murder without intent, which has to be proven in a murder case," Overton's pastor Rod Carver said.

Carver said the mother of five didn't know the child was suffering from sodium poisoning until he'd been sick for more than an hour.

"They didn't prove she poisoned the child," he said. "They found her guilty of not getting to the hospital quick enough."

Earlier coverage of the Overton case is here.

New Lab Report Case Granted - UPDATED

That's the title of Lyle Denniston's SCOTUS Blog post, concerning today's cert grant in Briscoe, et al., v.
Virginia, 07-11191.

The Supreme Court, in the final round of orders for the Term, agreed on Monday to review a sequel to its decision last week limiting the use of crime lab reports as evidence in criminal trials. The new case (Briscoe, et al., v. Virginia, 07-11191) involves the constitutionality of a procedure used in Virginia that requires an accused to assert a demand to question the technician who prepared the lab report. The state Supreme Court ruled that, if an accused does not follow the demand procedure, he surrenders his right to confront and cross-examine the report's author. 

UPDATED - Denniston's post has been updated and retitled, "Analysis: Is Melindez-Diaz already endangered?" 

"Forensic ruling adds burden for prosecutors," is the title of Tony Mauro's report on the Melindez-Diaz ruling in today's National Law Journal.

Both sides agree: The U.S. Supreme Court's June 25 ruling requiring that forensic evidence be presented at criminal trials by a witness who can be cross-examined will impose new burdens on prosecutors.

But initial reaction to the 5-4 decision in Melendez-Diaz v. Massachusetts was split over how big that burden will be — or whether it's a cost that just has to be borne to meet the requirements of the Sixth Amendment's confrontation clause. The Court said that written lab reports or affidavits alone won't suffice.

"I don't think there's any doubt it is going to be burdensome," said Sidley Austin partner Jeffrey Green, who wrote a brief in the case for the National Association of Criminal Defense Lawyers. "But so is a jury trial. All constitutional rights are burdensome to a degree, but it's difficult to imagine anything more critical to the outcome of a trial than examining whether a substance really is what it is."

Massachusetts Attorney General Martha Coakley, who argued and lost the case before the high court, said that "the majority failed to appreciate that its ruling today will significantly burden our ability to prosecute countless drug cases in the commonwealth's courts." Prosecutors say laboratory personnel will be diverted to waiting for court appearances instead of processing drug and DNA evidence.

And:

Justice Antonin Scalia wrote the opinion, which flows from his 2004 landmark decision in Crawford v. Washington that breathed new life into the confrontation clause. That part of the Sixth Amendment gives a person accused of crimes the right "to be confronted with the witnesses against him." Luis Melendez-Diaz invoked Crawford to challenge his conviction on drug trafficking charges, which was based in part on a certificate presented at trial — but not by a witness — stating that the substance obtained from his car was cocaine. State courts upheld the conviction.

In the Melendez-Diaz opinion, Scalia said the confrontation clause allows no way of presenting such evidence other than by a witness who can be cross-examined. "The Confrontation Clause," wrote Scalia, "is binding, and we may not disregard it at our convenience." Scalia also displayed a measure of skepticism about forensic evidence in a passage likely to be quoted often by defendants on appeal. "Forensic evidence is not uniquely immune from the risk of manipulation," Scalia wrote, in explaining why it should be subjected to scrutiny at trial.

More at the Melendez-Diaz Scotus Wiki page; earlier coverage at StandDown, here.

No Word From Supreme Court on Troy Davis Petition

The Court held it's last public session of the 2008-2009 term today, as noted by Tom Goldstein and his SCOTUS Blog crew.  The Court still has before it the cert petition for Troy Davis.  Goldstein posted:

The Court will issue an orders list  before it releases the opinions  -- saying which petitions it is granting, and which it is denying.   But that won't resolve all the petitions, so there will be another orders list -- presumably later today or tomorrow morning.

Today's Atlanta Journal-Constitution reports, "Clock ticks on Davis' petition to high court," written by Katie Leslie.

If the court does not decide by Tuesday whether to hear Davis’ most recent petition to retry his 1991 case in the murder of a Savannah police officer, justices won’t convene again until fall. This current petition is largely considered Davis’ most viable option to stay alive, said Laura Moye of Amnesty International’s Death Penalty Abolition Campaign.

But a delay could be good news for Davis’ legal team and supporters.

“It buys more time for all of the advocates to get more publicity on the case,” Moye said.

If the court decides against hearing Davis’ petition, it will be up to Chatham County District Attorney Larry Chisolm whether to pursue Davis’ fourth execution warrant. Chisolm could not be reached for immediate comment Sunday.

Davis, 40, was convicted of murdering Savannah police Officer Mark Allen MacPhail, 27, though no physical evidence directly linked him to the crime.

Since Davis’ trial, seven of nine witnesses have recanted their testimony and some people have implicated Sylvester “Redd” Coles as the shooter. Coles was the first person to implicate Davis in the killing.

Davis’ execution has been stayed three times as his attorneys work to save his life. Requests for a new trial in Chatham County have been denied, as have their petitions to have new evidence considered in the case.

Earlier coverage begins with John Berendt's recent OpEd on the case.

Kansas City Star Calls for Missouri Moratorium

"Moratorium on Missouri executions makes sense," is the title of the Kansas City Star editorial.  It appeared in the Sunday edition. 

Executions in Missouri are on hold — again.

Any delay is to be applauded. The death penalty is expensive and impossible to mete out fairly. It is simply a flawed public policy.

But Missouri is allowing inmate appeals to determine how and when the state administers capital punishment. The on-again, off-again pace of executions is excruciating for family members of both victims and inmates.

Incoming state Supreme Court Chief Justice William Ray Price Jr. said last week the state will likely schedule no execution dates while officials await the outcome of a federal appeal filed on behalf of death row inmate Reginald Clemons.

And:

Last session, the Missouri House took a step toward resolving the uncertainty when it seriously considered a moratorium on executions. Lawmakers stopped short of taking that step. But they voted to create a commission that would review cases to ensure those sentenced to death are guilty and received adequate legal counsel, and to consider possible alternative punishments.

Unfortunately, the Senate didn’t endorse comparable legislation. So the legislature passed up its best opportunity in years to lead the discussion on capital punishment.

The state has a sorry history of handling capital cases. Several inmates have been released from death row after flaws were found in the legal process. Serious questions remain about the fairness of some executions that took place.

A moratorium and a study are the best ways for Missouri to resolve the many troubling issues that have arisen from its application of the death penalty.

Reluctant lawmakers may find some encouragement in a new report in the Journal of Criminal Law & Criminology, published by the Northwestern University School of Law.

The report, by University of Colorado-Boulder professor Michael L. Radelet and researcher Traci L. Lacock, notes problems with previous studies that claim death penalty laws deter people from committing murders.

Radelet and Lacock surveyed 76 criminologists who have been cited by peers as leaders in their field. Of those experts, 88 percent said they don’t think the death penalty acts as a deterrent.

Earlier coverage of the Radelet & Lacock study begins here.  More on the lethal injection debate in Missouri is here.

California's Lethal-Injection Plan Is Proven to Be Inhumane

That's the title of an OpEd by Ty Alper in the Sunday edition of the Silicon Valley Mercury News.  He's the associate director of UC Berkeley Law School's Death Penalty Clinic.  It appeared in the Sunday edition.  LINK

On Tuesday, California prison officials will hear public comment on their proposed procedures for conducting lethal-injection executions. Although officials claim their goal is to achieve humane executions, the Department of Corrections and Rehabilitation plans to stick with a three-drug protocol that risks just the opposite.

The protocol is so fraught with danger that it would be illegal to use to euthanize a dog or cat in this state.

It involves the administration of three drugs: first, an anesthetic; second, a drug that paralyzes the inmate; and third, potassium chloride to stop the heart.

Activists have denounced the practice of paralyzing inmates before executing them, and for good reason. Executioners are typically not qualified to administer anesthesia, let alone monitor the inmate's reaction to the drug throughout the execution. If the inmate is paralyzed and the anesthesia fails, he will feel the excruciating burn of the potassium chloride as it scorches through his veins, but will be unable to indicate he is in pain. His death will appear peaceful, and the public will never know that yet another execution has been botched.

Such a procedure would be illegal if used on animals in California. Even when accompanied by anesthesia, paralytic drugs are generally banned in euthanasia because of the risk that failed anesthesia can go undetected in a paralyzed animal. For that reason, a shelter worker who administers a paralytic during animal euthanasia is guilty of a misdemeanor and subject to a $2,000 fine and a year in jail. That's been the law in this state since 1978.

And:

If this method of killing is unconscionable for animals, why does California insist on using it to execute people? Prison officials cannot claim ignorance. There are decades, even centuries, of evidence that these drugs have the potential to inflict a painful and horrifying death.

In 1868, a Swedish physiologist described paralytic drugs as "the most cruel of all poisons." In the 1970s, military officers in the Philippines, Brazil and Uruguay used paralytics to torture political prisoners. The Humane Society's current training manual states that its members have a "moral and ethical duty" to end the practice of injecting animals with paralytic drugs.

Some Californians believe that inmates should suffer the same painful death that they inflicted on their victims. We cannot deny the grief and rage that accounts for these emotions, but the Constitution requires humane executions. It is time to abandon a drug that has been used to torture both people and animals, and has been rejected by veterinary and animal welfare communities for decades.

The Stockton Record takes an advance look at the Tuesday hearing, "Death penalty argument will focus on cost," by Scott Smith.

Opponents of capital punishment plan to make a big showing in Sacramento on Tuesday at the state's first public hearing to scrutinize California's proposed lethal-injection procedure.

A court ruling won, and upheld on appeal last year, by attorneys for Stockton's Michael Angelo Morales required the state to put the procedure up for comment before adopting it. Morales is the next California prisoner in line for execution. Tuesday's hearing will be at the state's Department of Health Services.

The new procedure calls for - among other things - an executioner to be in the death chamber. After the initial sedative is injected, the executioner will speak to the inmate and jostle him to ensure he is unconscious before the lethal drugs are given.

And:

While the hearing narrowly focuses on the steps of an inmate's execution outlined in the procedure, the ACLU of Northern California, according to Natasha Minsker, plans to highlight the excessive cost of executions at a critical time financially for California.

"We're very concerned about the fact the state is spending so much money trying to resume executions when we're in such dire fiscal straights," Minsker said. "We have so many more important things to do."

The Record notes:

State officials will take public comments from 9 a.m. to 3 p.m. Tuesday on the proposed lethal-injection procedure at the California Department of Health Services, 1500 Capitol Ave., Sacramento.

Earlier coverage of the lethal injection controversy begins with this post.  Related articles are in the lethal injection index.

More on the Yogurt Shop Murders

Austin American-Statesman reporter Steven Kreytak recaps the lengthy history of the controversial case in, "Yogurt shop trials to be a challenge for DA," in the Sunday edition.

Robert Springsteen and Michael Scott walked out of the Travis County Jail last week on personal recognizance bonds after almost a decade behind bars. Given the state of the cases against them, it is unclear whether the men once convicted in the 1991 killings of four teenage girls at a North Austin yogurt shop will ever face re-trials.

Serious questions about the prosecutors' theory of the slayings have arisen recently after DNA from an unknown male — not defendants Scott or Springsteen — was discovered in evidence taken from the bodies of at least two teenage victims.

That further muddles a case that has had problems since firefighters who were extinguishing a blaze set by the killers washed out the crime scene at the I Can't Believe It's Yogurt Shop on West Anderson Lane, where Amy Ayers, 13, Eliza Thomas, 17, and sisters Sarah and Jennifer Harbison, 15 and 17, were found bound, gagged and shot in the head Dec. 6, 1991.

And:

After the crime, Austin's homicide unit was overwhelmed with thousands of tips. Detectives brought in what one investigator estimated could be as many as 60 teenagers for interviews in the first two weeks of the investigation, which quickly went awry when too many of those teens repeated back to police details about the crime that police had sought to keep secret, according to court testimony. A string of confessions investigators believed were false also marred the pursuit of the killers.

Soon, police were investigating their own leaks, and some investigators were removed from the case.

Earlier coverage begins here.

Imprisoned, Facing Impeachment, Kent Resigns Federal Judgeship

"Facing impeachment trial, U.S. judge resigns," is Suzanne Gamboa's AP report, via the Dallas Morning News.

An imprisoned federal judge who's facing an impeachment trial in the Senate in a sex-abuse case says he will resign from the bench at the end of the month.

U.S. District Judge Samuel Kent of Texas produced the resignation letter when he was served with a subpoena for his impeachment trial, Terrance Gainer, the Senate sergeant-at-arms, said on Thursday.

Kent said in the letter that he will resign effective June 30. His attorney, Dick DeGuerin, was in court and could not be reached for comment.

Kent is serving a 33-month sentence in a Massachusetts federal prison for lying to judicial investigators about sexually assaulting two female employees in his court. He was impeached by the House last week, and this week the Senate began work to bring him to trial on the four articles of impeachment.

Lise Olsen writes, "Embattled Kent resigns amid impeachment proceedings," for today's Houston Chronicle.

U.S. District Judge Samuel Kent resigned via an unusual no-frills letter that he hand-delivered in prison to two Senate officials who had come to serve a summons on him as part of ongoing impeachment proceedings in U.S. Congress.

The resignation of Kent, a convicted felon who had continued to collect his $174,000-a-year salary in prison, was announced to the surprised participants at the first meeting of the Senate’s impeachment trial committee Thursday afternoon in Washington. The committee is chaired by Sen. Claire McCaskill, D-Mo., who announced Kent had handed in a resignation, effective Tuesday, on plain paper to the Senate’s sergeant-at-arms during a prison visit.

Kent had earlier offered to resign in mid-2010 — a move that angered U.S. House officials, who quickly voted to impeach him rather than let him collect his salary for the first year of his 33-month sentence. He could be removed from office only after a trial in the U.S. Senate.

Kent pleaded guilty earlier this year to obstruction of justice and admitted to sexually molesting two women who worked for him when he served as the federal judge in Galveston.

Earlier coverage begins here.

A Chaplain's Take on Capital Punishment

That's the title of Bob Lively's religion column which will appear in tomorrow's Austin American-Statesman.  LINK

The last time I checked, seven out of 10 Texans approved of the death penalty, and not surprisingly, Texas executes more people than any other state (and for that matter, most foreign countries). Hence, it should surprise no one that our current governor has sat by while 200 fellow human beings have been executed over in Huntsville. If he commuted death sentences, he'd never be re-elected.

But I wonder about those pro-death penalty Texans. Don't they know that Jesus was a victim of the same state-sanctioned murder to which we've become so tragically inured here in the Lone Star State? The Jewish Sanhedrin did not kill Jesus. Rome did! And from the very beginning of his brief three-year ministry, Jesus opposed any and all expressions of violence.

By far, the most authoritative book I've read on the subject of the death penalty was "Within These Walls: Memoirs of a Death House Chaplain," written by a fellow Presbyterian minister, Carroll Pickett. The Rev. Pickett begrudgingly began assisting with executions back in the '70s when capital punishment was once more ruled legal. Today Carroll Pickett travels coast to coast, advocating passionately and effectively against the death penalty, but more importantly he witnesses to the life and to the radical love of Jesus.

I think Pickett's book is a must-read for every human being who, like me, believes that all human life is sacred. Pickett has come to understand that Caesar's kind of justice all too often looks and smells a whole lot like vengeance, while for God justice is quite simply always the same thing — an incomprehensible love made public.

Boston's Phoenix has new musings on the documentary, "At the Death House Door," written by Peter Keough.

What with the crashing economy, the North Koreans having a nutty and Iran melting down - to name just a few of the crises spinning at the moment - the status of the death penalty would seem to be near the bottom of President Obama's list of priorities. Nonetheless, he'll have no choice but to take a stand on the issue pretty soon, since the cases of six federal death row inmates will probably see their stays of executions expire in the next few months.

Then Obama, who has the authority to pardon them or not, will have to decide whether they live or die.

"The death penalty in the abstract is one thing," says Dianne Rust-Tierney of the National Coalition Against the Death Penalty to "Politico." "The reality of the death penalty and all of its nasty details is a very different thing."

Perhaps the president might want to prep himself for this decision by watching Steve James and Peter Gilbert's ("Hoop Dreams") wrenching, sublimely restrained and expertly crafted documentary, "At the Death House Door,"  which will be released by Facets Video tomorrow. It concerns, in part, the strange career of Rev. Carroll Pickett, who served as the Death Row chaplain at the Huntsville, Texas prison, ushering condemned prisoners through the last 12 hours of their lives.

Pickett's first experience at the prison traumatized him. In 1974, inmates took several civilian workers hostage. Among them were two of his parishioners. He watched them get gunned down in a bloody shootout.

In 1982, six years after the Supreme Court had reinstated the death penalty, Huntsville Prison was in the business of executing people. Pickett, then the prison chaplain and a compelling force for good who had already changed the lives of many prisoners through his ministry and his choir, was enlisted into the "Lethal Injection Team" as the person who would accompany the condemned through his (or her; one victim was a woman) last day, offering them comfort and consolation and, as the warden put it, "seduce" their emotions so they wouldn't "fight" when they had to walk that last 8 feet to be strapped to a gurney and put to death.

Given the murders of his parishioners in 1974, Pickett initially, if abstractly - had no problem with the death penalty. His leather-tough Texas dad used to say "hang them fast and hang them high." But he discovered, as Rust-Tierney noted above, that the reality is different. He was so shaken by the experience that he made a tape recording of his feelings and impressions after each execution. Thirteen years and 95 executions later, including that of one man, Carlos DeLuna, whom he was certain was innocent, Pickett was no longer in favor of capital punishment. Anyone who watches this film will be hard-pressed to support it, either.

Today's Arkansas Online carries Philip Martin's, "ON FILM: Death House Door puts penalty on trial."

Watching At the Death House Door (Facets, $29.95), a 2008 documentary by Peter Gilbert and Steve James (best known for Hoop Dreams) released this week on DVD, I was reminded of the story of Albert Pierrepoint.

Pierrepoint - portrayed by Timothy Spall in the 2005 film The Last Hangman (also known as Pierrepoint) - served as the United Kingdom’s official hangman from 1932 to 1956 and presided at the executions of more than 400 people (including some 200 Nazi war criminals hanged after World War II).

By all accounts, he was extremely precise and methodical, a true professional who dispatched his “clients” with as little ado as possible. He was a mercifully swift worker - rarely did more than 30 seconds elapse between the condemned’s arrival on his gallows and execution. (Having done some work for the U.S. Army during World War II, he hated the way the Americans dithered around for six or seven minutes reading lengthy charges while the condemned waited on the trap door.)

Dealing in officially sanctioned homicide gave Pierrepoint a unique perspective on capital punishment. In the end, he became if not an abolitionist at least convinced that the policy had no deterrent effect.

“I have come to the conclusion that executions solve nothing,” he wrote in his autobiography, “and are only an antiquated relic of a primitive desire for revenge which takes the easy way and hands over the responsibility for revenge to other people.”

Pierrepoint’s opinion is unlikely to change the minds of capital-punishment advocates - the issue is an emotional one, highly resistant to any evidence and all testimony. It may take something more dramatic than cold numbers to change anyone’s mind about whether the state should have the power of life and death over its citizens.

At the Death House Door starts out as a cinematic portrait of the Rev. Carroll Pickett, a Presbyterian minister whose views on capital punishment were shaped by a “hang ’em high” father, the absence of his murdered grandfather and, years before he worked at the prison, the killing of two of his parishioners - civilian library workers - during a 1974 prison siege. Pickett, once described by a Texas newspaper as “27 degrees right of Rush Limbaugh,” thought the death penalty was appropriate and effective.

During his 16 years as prison chaplain of the Texas State Penitentiary at Huntsville, Pickett witnessed 95 executions by lethal injection. Like Pierrepoint, he was changed by his experience from capital punishment advocate to opponent.

Earlier coverage of the documentary and Carroll Pickett begins with this post.  His book is in the right-column Books section.

DoJ Announces Commitment to Public Defenders, Legal Aid

That's the title of coverage of a speech by Attorney General Eric Holder posted at the Blog of Legal Times, aka, The BLT.  LINK  The post is written by Mike Scarcella.

Attorney General Eric Holder Jr. today outlined a plan in which the Department of Justice seeks to expand its commitment to improving legal services for indigent criminal defendants.

Calling services for indigent offenders in a state of “crisis,” Holder vowed the department will have a greater role in dialogue among public defender agencies across the country.

“Our goal at this Department of Justice is that justice shall be done,” Holder said in remarks delivered to the National Legal Aid & Defender Association today in Georgetown. “That means that when the system breaks down, we all lose.”

The Justice Department, Holder said, is planning more regular meeting with the public criminal defense bar. The goals of prosecution and defense are not irreconcilable, he said.

Holder said Justice components intend to include public defenders in meetings. And the department is planning a national conference to highlight innovative programs and to strategize for greater funding. Holder called it an ambitious agenda.

 The DoJ has posted the Attorney General's prepared remarks at the American Council of Chief Defenders Conference.  Here's an excerpt:

Ten years ago, when I was Deputy Attorney General, I worked with Attorney General Janet Reno to begin a national dialogue on indigent defense.   We brought together the defense bar, prosecutors, judges, and others to talk about the crisis in our public defense system and to explore solutions.   We held two national conferences – one in 1999 and one in 2000 – during which Janet and I helped NLADA launch the American Council of Chief Defenders.   

 

Yet despite this promising start a decade ago, it is clear to me that the crisis in indigent defense has not ended.   And the Justice Department has not remained an active part of the conversation about indigent defense in recent years.   Groups like you have been carrying the mantle, but you should not have to carry it alone.   When I took the oath of office as Attorney General, I swore to support and defend the Constitution of the United States.   Supporting and defending the Constitution includes, in my view, a responsibility to serve as guardians of the rights of all Americans, including the poor and underprivileged.

 

Now, the obstacles to representing the indigent are well-known.   We know that resources for public defender programs lag far behind other justice system programs – they constitute about 3 percent of all criminal justice expenditures in our nation’s largest counties.   In many cases, contract attorneys and assigned lawyers often receive compensation that doesn’t even cover their overhead.   We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients.   We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.   Finally, we know that there are numerous institutional challenges in public defense systems, like budget shortfalls.

 

These challenges are not new.   Justice Hugo Black saw the problem 45 years ago and wrote that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”   What can be done?

 

Let me start with a first principle.   Some may perceive the goals of the prosecution and the goals of the defense as irreconcilable – that those who represent the state and those who represent the accused are forever at odds.   I served as a prosecutor for many years, and I strongly reject that premise.   Our system of justice is adversarial to be sure, but the prosecutor is a special kind of adversary – for criminal litigation is not like civil litigation in one important way.   As the Supreme Court described United States Attorneys long ago, prosecutors are representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”  Let me repeat – our goal at the Department of Justice is “that justice shall be done.”

 

That means that when the system breaks down, we all lose.   And this is true not just because our shared principles are undermined, but for practical reasons too.   When defendants fail to receive competent legal representation, their cases are vulnerable to costly mistakes that can take a long time to correct.   Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors.   When that happens, no one wins.

 

It also means that we at the Department put a premium on truth-seeking.   The Department’s commitment to ensuring that justice is done is why, for example, I think defendants should have access to DNA evidence in a range of circumstances.   DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty.   As you know, the Supreme Court held last week that there is no substantive due process right to access DNA evidence in post-conviction proceedings.   But the Department distinguishes what is constitutional from what is good policy.   And we have maintained that in a full and fair justice system, it is good policy to permit such access.   Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.

 

Now, with that same goal of doing justice in mind, I am very glad to be here today and to renew the Department’s commitment to improving the indigent defense system by announcing five first steps that will bring us closer to making sure that we achieve our goal.

Holder's fifth step:

Fifth, and finally, the Department will host a national conference focusing on issues relating to indigent defense.   This conference will build on the two conferences held in 1999 and 2000, which centered on strategy development and innovative collaborations.   We hope that this conference will help to develop a series of best practices among indigent defense programs throughout the country.   We also hope to highlight innovative programs and efforts, including those that use tools like technology and mentoring in new and effective ways.   Finally, a major goal of this conference will be to help public defense programs strategize about how to get involved in the decision-making process related to funding and, generally, find support in difficult economic times.   As you can tell, this is an ambitious agenda – that’s because there is a lot that can be done.   Putting together the conference and achieving its goals will require help from people like you, who are in the trenches of indigent defense, and I have asked Laurie Robinson and her team at the Office of Justice Programs to consult with members of your bar in planning the conference.

Nickel-and-Dimed to Death

That's the subtitle of a report at North Carolina's Indy Week, "The high cost of the death penalty," written by Matt Saldana.

The cheapest part of executing a prisoner is the killing itself.

The state's procedure of lethal injection costs about $500: $168 in medicine and syringes, plus roughly $340 for the doctor, who is present for three to four hours, according to the N.C. Department of Correction. (See details below.)

Yet court fees related to capital trials, those in which prosecutors seek the death penalty for murder, cost North Carolina millions of dollars. The costs are incurred even if the charges are reduced or dismissed. Given the state's budget crisis, which has forced lawmakers to cut funding for education, social services and children's health insurance, money spent on pursuing death penalty cases arguably could be better used. Nationwide, several states, including Colorado and Kansas, are considering abolishing the death penalty to save money.

In North Carolina, Sen. Floyd McKissick, D-Durham, recently told the House Ways and Means Committee, "We might want to, at some point, revisit whether the death penalty ought to be imposed, or whether we ought to impose a life sentence without parole, because it's a strong, persuasive and convincing argument when you talk about the astronomical expense of capital cases."

Between 2001 and 2008, N.C. Indigent Defense Services cost the state an additional $36 million when prosecutors sought the death penalty instead of life imprisonment for 733 people, according to the Indy's analysis of a 2008 IDS report. (See box at right.) IDS is a publicly funded agency that provides private attorneys for defendants charged with capital crimes, but cannot afford a lawyer.

Several factors contribute to higher costs for death penalty cases: The state requires that capital defendants have two attorneys; there may be a greater need for expert testimony and a there is a separate sentencing phase.

And

Part of the reason for the extra expense in capital cases is that attorney and expert-witness fees begin accruing immediately—even if the charges are eventually dropped or reduced or the cases don't go to trial.

Cases resulting in a death sentence—just one of 12 capital-murder trials last year—are automatically appealed to the state Supreme Court; defendants are eligible for a lengthy post-conviction process, adding to the cost. In the past two years alone, three North Carolina inmates have been released under these circumstances—aided by investigations by nonprofit legal groups—after serving a combined 35 years in prison for crimes for which they were exonerated.

"North Carolinians are paying for an extremely broken death penalty system," says Jeremy Collins, campaign coordinator for the N.C. Coalition for a Moratorium. "We're paying a car note on a vehicle that does not run properly."

Related articles are in StandDown's cost index.

Way Off Topic ... A Friday Night Diversion

Jessica Blank and Erik Jensen wrote the play, "The Exonerated," which has done so much to raise awareness of wrongful convictions; the causes and the personal horror of wrongful incarceration.  Over the years I've highlighted some of Jessica's other work.  Erik is acting in a show being broadcast Friday evening on Fox, and Jessica has sent a message:

As many of you already know, Erik acted in an amazing pilot this year, "Virtuality," by the creators of "Battlestar Galactica." 
 
The ensemble cast (including Erik!) is extraordinary, the show is brilliant, and it deals with issues that, let's say, are not being widely and intelligently dealt with on network television.  The politics of the show are really challenging and good. Tt's extremely intelligent science fiction. This show REALLY DESERVES A CHANCE.
 
"Virtuality" is airing TOMORROW NIGHT on FOX at 8 pm (EDT).  it's being billed as a TV movie, but really the network is trying to see if it gets good enough numbers to pick it up as a series.
 
so...we don't usually do this....but we could really use your help.
 
THE ONLY WAY THIS SHOW WILL GET PICKED UP IS IF ENOUGH PEOPLE WATCH TOMORROW NIGHT AND LET THE NETWORK KNOW THEY LIKED IT.
 
I'm sorry to be so shameless about it, but this show is GREAT -- and my brilliant, amazing husband has been dying to be part of a science-fiction universe since he was, oh, about eight.  This show getting picked up would be a really big deal for us, and there are a couple REALLY simple things you can do to help.
 
It would mean SO much to us if you would:
 

1. Let others know; it will really make a difference.
 
2. WATCH tomorrow night on fox at 8 pm EDT!
 
3. this one is important: as soon as it's over (or on Saturday or Sunday), please go to the show's website to send an email to FOX and to SciFi letting them know you liked the show and want to see more.

Follow the link for more information on Virtuality.  Ill add Virtuality to the Diversions webroll on the bottom left column.

More on the California Debate

Today's San Francisco Chronicle carries the OpEd, "Replace death penalty with permanent improisonment."  It's written by Jon Streeter, Bill Hing and Diane Bellas; all served on the California Commission on the Fair Administration of Justice.

After spending four years on the California Commission on the Fair Administration of Justice, we were pleased to see state Sen. Tom Harmon, R-Huntington Beach, cite our commission's report on the death penalty in his June 15 Open Forum piece, "Legal stalling packs Death Row." We are concerned, however, that Harmon did not disclose the reasons we concluded that California's death penalty is not working. He also failed to disclose that it will cost more than $230 million a year to fix it.

The commission was created by the Senate to investigate the problems of wrongful convictions and wrongful executions. After issuing eight reports on the causes of wrongful convictions, we turned our attention to the administration of the death penalty. Ours was the first comprehensive analysis of the problems with the California's death penalty, the reforms needed, the possible alternatives and the costs.

As the senator states, "the death penalty system in California is broken and unworkable." We found that it now takes an average of 25 years for death penalty cases to move through the mandatory court review process. However, the reason these appeals take so long is not because of "legal maneuverings." The primary cause of these delays is the lack of attorneys willing to take these cases and the lack of court staff to review them. A person sentenced to death today in California will wait eight to 10 years before an attorney will be appointed to represent him in a legal challenge to his conviction. Without an attorney, there are no legal maneuverings at all.

And:

We currently pay $137 million each year for the state's dysfunctional death penalty. Implementing our recommendations would cost an additional $95 million, for a total price tag of $230 million each year. Because it would take many years to increase the pace of review of death penalty cases, we would still need to build a new facility to house the people now on Death Row, at a cost of $400 million.

As Sen. Harmon stated, "California can't afford the dysfunctional death penalty system in place." What he fails to disclose is that California can't afford to fix it either.

We have an alternative, however. California can and should replace the death penalty with the sentence of permanent imprisonment: life with absolutely no possibility of parole. The past 30 years have shown that permanent imprisonment succeeds where the death penalty fails. It provides severe and certain punishment, ensuring that dangerous people are off the streets. It also provides peace of mind and finality to the family of murder victims, while the death penalty drags them through decades of painful appeals. And, it would save the state hundreds of millions of dollars a year.

It is time for the voters to fix this system: We should replace the death penalty with permanent imprisonment.

Earlier coverage from California begins here.

Maryland Releases New Lethal Injection Rules

The draft procedures are here.

"Maryland moves toward resuming executions," is Laura Smitherman's report in today's Baltimore Sun.

Gov. Martin O'Malley's administration took a reluctant step Wednesday toward resuming executions in Maryland after the governor failed earlier this year to persuade the General Assembly to outlaw capital punishment.

The state issued revised protocols for lethal injections, which O'Malley had postponed as he sought to build support for a repeal in the legislature. The governor, a Roman Catholic, had made it a personal crusade to end the death penalty. A de facto moratorium has been in place since December 2006, when the state's highest court ruled that the protocols had been improperly developed.

The new protocols largely mirror death-penalty procedures that had been used by the Department of Public Safety and Correctional Services but had not been formally adopted through the regulatory process, which also includes public review. Some changes include extending the time death-row inmates spend with family before being executed, and allowing them to order a special last meal.

But it's unlikely that an execution will be carried out for months or even years.

The regulations must be vetted by a joint legislative committee that is co-chaired by two staunch death penalty opponents, who could delay final approval of the regulations and are likely to hold public hearings. Death penalty foes plan to raise concerns about the drug cocktail used for executions and the presence of medical personnel.

And while O'Malley has said he would uphold the law despite his personal misgivings, he plans to review the cases of the five prisoners on death row before signing their death warrants, and he could decide to commute their sentences. The death-row inmates also may continue their appeals.

Today's Washington Post has, "Md. Releases Rules That Could Restart Executions," by Lisa Rein.

Gov. Martin O'Malley's administration issued new regulations yesterday that could clear the way for Maryland to resume executions by lethal injection, effectively ending a 2 1/2 -year moratorium on capital punishment.

The regulations were delayed for months while O'Malley (D) pushed unsuccessfully to abolish the death penalty. The General Assembly agreed instead in March to tighten evidence standards in capital cases. The manual, written by corrections officials, must be approved by a 20-member legislative committee that is split between supporters and opponents of capital punishment.

The committee's Senate leader, Paul G. Pinsky (D-Prince George's), a death penalty opponent, said yesterday that he is "in no hurry" to call for a vote.

"We may even put a hold on these," Pinsky said. "At the same time, I know the legislature has spoken."

If the committee, which reviews administration regulations, does not act within a review period of about three months, O'Malley could put the procedures into effect.

And:

The manual is the first public document to lay out execution procedures since Maryland reinstated the death penalty in 1978. The biggest change is that the new regulations require medical personnel who inject the lethal combination of drugs into an inmate's veins to find an alternative to the arms if those veins are too scarred to accept a needle.

The change was prompted by a lawsuit by Vernon L. Evans Jr., who said his arms were so scarred by drug use that he would be harmed when the three lethal drugs were administered. Evans is one of five inmates on Maryland's death row.

Other changes in the manual requested by the state's public defender's office include allowing the corrections chief to grant an inmate's request for a special last meal; allowing the inmate to choose which of his attorneys he wants to witness his execution; and allowing family members to visit as late as three hours before the execution instead of four.

The procedures also prohibit the state from using a medical procedure known as a "cut down" to guide the needle to a hard-to-locate vein. A cut down allows the inmate's skin to be cut, a method used in several states that has been criticized as antiquated and as causing the prisoner pain.

The Daily Record's Steve Lash writes, "State drafts lethal injection rules."

Completion of the draft regulations follows an unsuccessful legislative effort this year to repeal the state’s death penalty, an attempt O’Malley backed. A compromise measure was passed that greatly restricts the use of capital punishment.

O’Malley praised the new law and said he had no choice but to allow the drafting of new protocols to move forward after the repeal effort failed.

“These new regulations mark an important step in ensuring that the death penalty in Maryland is carried out in a manner consistent with state and federal law,” O’Malley said in a statement after the draft regulations were released. “While I personally oppose the death penalty, I took an oath to uphold the laws of our state.”

And:

The proposed lethal-injection regulations would do the following:

* Clarify prohibitions preventing a Department of Corrections employee from performing a medical procedure known as a “cut down” — in which an incision is made to expose a vein — at the time of execution in order to administer the injections;

* Reinforce requirements for pre-execution examination of the convict to determine appropriate locations to insert intravenous needles necessary for execution;

* Reduce from four hours to three hours the time before execution that the condemned may have visitors, excluding attorney and clergy;

* Require that an inmate with multiple attorneys decide which one, if requested, witnesses the execution;

* Require a contracted paramedic to be immediately outside the execution area if a certified paramedic is not on the execution team; and

* Clarify existing requirements for non-Department of Corrections execution team members to have appropriate credentials to perform assigned duties.

"State drafts new rules for lethal injection," is the AP report via the Cumberland Times-News.

The rules also will be published in the Maryland Register for public inspection and comment for 60 days.

The 35 pages of draft regulations prohibit a procedure called a “cut-down” that was part of the old protocol in case the execution team had trouble finding an arm vein in which to insert a standard intravenous needle. The procedure involves cutting into an inmate’s limb to put a catheter in a deeper vein.

Instead, the proposed rules require a pre-execution examination to locate a vein, whether in the arm, ankle, behind the knee or elsewhere, in which to administer the drugs.

Jane Henderson, executive director of Maryland Citizens Against State Executions, said barring cut-downs could be an improvement. She objected, though, to the inclusion of pancuronium bromide, a paralyzing drug, in the lethal mix. Maryland uses three drugs during executions: sodium pentothal to render the inmate unconscious, pancuronium bromide to paralyze the inmate’s breathing and potassium chloride to stop the heart.

Henderson said the role of pancuronium bromide “is to make it appear to be a peaceful death” even if the inmate is in pain.

Another change requires a certified paramedic to be either part of the execution team or stationed immediately outside the death chamber.

Related articles are in the lethal injection index.  Earlier coverage of Maryland's lethal injection procedure begins here.

Yogurt Shop Murder Defendants Released

It has been a spectacularly tangled case since December 1991 when four girls were killed in a North Austin yogurt shop.  Problems with the investigation were apparent from the beginning.  Four men were identified as suspects and pursued, but it has always been an open question as to whether those convicted were actually guilty.  Yesterday, the case took another dramatic turn.

"Suspects in yogurt shop killings released," is Steven Kreytak's report in today's Austin American-Statesman

More than nine years after telling police they participated in the grisly slayings of four teenage girls at a North Austin yogurt shop in 1991 — confessions their lawyers say were coerced under psychological pressure — Robert Springsteen and Michael Scott were released from jail on bond Wednesday.

State District Judge Mike Lynch ordered the men to be released on their own recognizance after prosecutors said they were not prepared to go to trial as scheduled July 6 given questions raised by recently discovered DNA evidence. Each man remains charged with four counts of capital murder.

Scott, 35, and Springsteen, 34, were each previously convicted of capital murder, but those convictions were tossed on appeal. The men have been locked up since 1999, with Springsteen spending four years on death row. Scott had been sentenced to life in prison.

Just before 3 p.m. Wednesday, Scott walked arm-in-arm with his wife from the Travis County Jail, smiling briefly when a handful of supporters cheered. He said nothing to a throng of assembled media.

Behind him was Springsteen, who gazed wide-eyed at the crowd and up into the live oak trees outside the jail.

And:

Prosecutors said they want to conduct more DNA testing to determine whose male DNA was found in a vaginal swab taken from 13-year-old victim Amy Ayers. DNA from the same male was later found in another victim.

Defense lawyers say the male DNA could have been found in a third victim, but the profile is incomplete, and that another unknown male DNA profile was found on a wrist ligature used to bind a fourth victim.

Tests show conclusively that none of the DNA belongs to Scott, Springsteen or two previous co-defendants, lawyers have said.

Defense lawyers say the new DNA evidence exonerates Scott and Springsteen.

Jordan Smith writes, "Yogurt Shop Murder Defendants Set Free," for the Austin Chronicle.

Lynch's decision to free the two men dealt a devastating blow to the prosecution, raising questions about the D.A.'s ability to withstand mounting evidence supporting the defense. Scott was scheduled for retrial starting July 6, a date set months ago, but on June 24 the Travis County District Attorney's Office announced in court that it was not ready to prosecute. At issue is the discovery last year of unknown male DNA found on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers. The D.A.'s Office has been searching for a match to the DNA but after testing more than 100 people – including crime scene and lab personnel, police, firefighters, and friends and acquaintances of the defendants – has not been able to identify the donor. Attorneys for Scott and Spring­steen say the discovery of the unknown male DNA exonerates their clients, but D.A. Rosemary Lehmberg says that isn't so. "It just does not exonerate anybody," she said during a Wednesday press conference following the judge's decision.

Still, it doesn't appear that Lynch is willing to let the prosecution off the hook indefinitely. The case will be back in court Aug. 12, when prosecutors will be asked to update their progress and discuss when they'll be ready to try Scott. Lynch said he expected the state to come prepared with a "more definite game plan," or the court will produce its own.

The latest chapter of the seemingly endless courtroom saga began in March 2008, when new DNA testing by Fairfax Lab (Virginia), working for the state, revealed an unknown male DNA profile inside the body of Ayers, who was murdered with three other young women in a North Austin yogurt shop in 1991. The DNA profile from Ayers' body does not match Springsteen or co-defendant Scott or two other men – Maurice Pierce, who prosecutors had dubbed the "mastermind" behind the grisly murders before dismissing all charges against him in 2003, and Forrest Welborn, who prosecutors had charged acted as a lookout but against whom two grand juries failed to return an indictment.

That revelation sparked yet another round of DNA testing, undertaken by the defense. In court last week, Joe James Sawyer, one of Springsteen's attorneys, said those additional tests, completed by experts with the company Orchid Cellmark, revealed what could be yet another unknown male DNA profile – on vaginal swabs taken from Sarah Harbison, 15, and on a ligature removed from Eliza Thomas, 17. Importantly, testing has also revealed that a swab taken from the fourth victim, Sarah's older sister, Jenn­ifer Harbison, 17, matches the unknown DNA found inside Ayers.

The startling results, Sawyer said at last week's hearing, not only exclude Springsteen – to a "scientific certainty" – from having left any iota of DNA at the scene but also exonerates him from having participated in the grisly quadruple murder.

"2 suspects freed in Texas yogurt shop murder case," is the AP report by Jim Vertuno, via the Fort Worth Star-Telegram.

Police chased thousands of leads and received several false confessions. Springsteen, Scott and two other men were arrested in 1999. Charges against the two other men were eventually dropped, and they are not implicated by the new DNA test.

And:

Scott and Springsteen initially confessed, and each man implicated the other. But both quickly recanted and said their statements were made under police pressure.

The convictions were overturned because in each case, the defense had been unable to cross-examine the co-defendant about his purported confession.

Springsteen was 17 when the girls were killed; the U.S. Supreme Court later banned execution of defendants who were juveniles at the time of the crime. The new DNA tests were conducted in 2008 using technology not available during the defendants’ first trials.

Travis County District Attorney Rosemary Lehmberg said investigators have conducted at least 100 new DNA tests and need more time to keep testing. She suggested that a previously unknown fifth suspect participated in the crime.

A key element of Springsteen’s confession was admitting sexually assaulting Ayers. Now prosecutors face a DNA sample that doesn’t match his confession.

The Austin Chronicle has an extensive archive of its earlier coverage.  Earlier StandDown coverage is here.  I'll have commentary on the case later today.

In ’98, Hints From Sotomayor on Death Penalty

That's the title of a report in today's New York Times on Supreme Court nominee Sonia Sotomayor.  It's written by Benjamin Weiser.  LINK  Here's an excerpt from the beginning:

As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly — and weighing the lives of two men.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

“We gave her enough ammunition that she could have struck down the death penalty,” recalled David A. Ruhnke, a defense lawyer in the case. “Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it — had she wanted to reach out and do it — and she didn’t.”

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.

And:

Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be two executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on one point, she cautioned that his approach could lead to a reversal of any verdict.

“Remember two things,” she told him. “A conviction is important. Surviving conviction is more important.”

She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.

The National Law Journal has an excellent resource, "The Sotomayor Nomination."  Earlier coverage at StandDown is here.

The Pace of Executive Clemency in Maryland

Today's Baltimore Sun carries a column by Dan Rodricks, "Justice reform not an O'Malley priority."

According to The Washington Post, Gov. Martin O'Malley is about to issue his first pardons since taking office in January 2007, and there are no convicted killers on the short list of those who will catch a break from the Democratic governor. In fact, Mr. O'Malley's mercy extends only to seven people, and they were convicted years ago of petty theft and disorderly conduct.

"I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," the governor and former mayor of Baltimore told the Post. "You probably won't see me doing as many of these as past governors."

Mr. O'Malley, a one-time prosecutor, is also a war-on-drugs warrior. Two years ago, he opposed a relatively modest change in Maryland law that would have given judges discretion in how they sentence low-level, nonviolent drug dealers, the kind who generally sell dope to pay for their own habits. On a talk-radio show, Mr. O'Malley called drug dealing a "violent crime" that needed to be punished, and he opposed the reform.

So I wasn't shocked to see where he's pretty much hit the brakes on pardons.

Mr. O'Malley might have come out against the death penalty and crusaded for its repeal. But opposition to the death penalty does not a corrections reformer make.

Mr. O'Malley is more aptly described as a savvy Democrat in the post-Willie Horton era. Democrats in this era - a prolonged period of hesitance to present effective corrections reforms - have tried to earn and keep tough-on-crime bona fides to counter Republican accusations that they are too soft. With few exceptions, Democrats have been big 'fraidy-cats when it comes to ending the war on drugs, putting corrections (and common sense) back into corrections or challenging the death penalty.

Rodricks references the article, "O'Malley Puts the Brakes on Clemency in Md.," written by John Wagner, which appeared in the Sunday edition of the Washington Post.  Here are two extended excerpts:

During his four years as governor of Maryland, Robert L. Ehrlich Jr. (R) drew national notice for the aggressive use of his executive clemency powers, pardoning or commuting the sentences of 249 convicts, including several serving life sentences for murder.

His successor, Gov. Martin O'Malley, has quietly but abruptly reversed that trend.

Nearly 2 1/2 years into his term, O'Malley is preparing to grant his first pardons, to seven people convicted years ago of such crimes as petty theft and disorderly conduct. Those cases were advertised Friday, as required by law, in a legal newspaper. O'Malley's only previous acts of clemency were releasing two prisoners who were in advanced stages of AIDS. Both were required to return if their conditions improved.

O'Malley (D), a former mayor of Baltimore, said he views clemency requests as less pressing than his other public-safety priorities, including expanding a state DNA database used to solve crimes.

"I suppose my orientation from being a big-city mayor and having seen the violence on our streets is more of a tough-on-crime orientation," he said. "You probably won't see me doing as many of these as past governors."

In an interview, Ehrlich declined to comment directly on O'Malley's approach but said he received little criticism for his more expansive approach.

"The criminal justice system has flaws, and it's the job of the governor, when appropriate, to correct those flaws," Ehrlich said. "When you try to make the system better, you don't get much criticism."

The state's last Democratic governor, Parris N. Glendening, was loath to commute life sentences, a view O'Malley said he shares. Glendening did pardon 134 former convicts during his eight years in office.

O'Malley's approach has raised concerns among those in the legal community who see the possibility of clemency as an incentive for offenders to improve their behavior and not offend again years after their release.

In Maryland, applicants for pardons must be crime-free for at least five years after they serve their sentences, including probation. Pardons can open doors for past offenders, including eligibility for jobs they would not otherwise be considered for.

"These are people who have been out many years, and they're looking for forgiveness," said Margaret Colgate Love, a Washington-based lawyer who specializes in executive clemency cases across the country. "I think withholding this sort of official forgiveness is not sensible, and it's not safe."

Love said O'Malley's stance is also out of step with a growing number of governors, including Ehrlich, Virginia Gov. Timothy M. Kaine (D) and Mike Huckabee, the former Arkansas governor and Republican presidential aspirant who came to realize the benefits of clemency despite apparent political risks.

And:

In Virginia, Kaine has accelerated the practice of restoring former felons' rights to vote and serve on juries, one of several types of executive clemency stepped up by his predecessor, Mark Warner (D), now a U.S. senator.

Kaine, who is in the final year of his term, granted 3,148 restorations as of June 12, eclipsing the pace of Warner, who granted 3,486 during his four years as governor.

The state's previous two governors, Republicans James S. Gilmore III and George Allen, granted 238 and 460, respectively.

Kaine has also been more active than his predecessors in issuing simple pardons, a form of clemency in Virginia that restores no privileges. He has not commuted more sentences, however.

In Maryland, Ehrlich drew praise from some unlikely sources for his prolific use of clemency powers. Shortly before leaving office in January 2007, Ehrlich issued a statement citing the number of "good people who make mistakes in life" whom he had been able to help.

During his tenure, Ehrlich granted 228 pardons to former convicts and rejected applications from 211 others.

Perhaps more noteworthy were 15 commutations of sentences of current prisoners, including five serving life sentences for murder.

One such case involved a man convicted in a 1968 robbery and beating death in Baltimore. Others involved in the attack had been released, and the man still imprisoned did not wield the bat used in the killing.

Ehrlich also released six prisoners for medical reasons.

His willingness to commute life sentences marked a significant departure from the policy of Glendening, his predecessor, who maintained a "life means life" policy. During his eight years in office, Glendening did not commute any life sentences except for medical reasons.

In granting 134 pardons, Glendening also made a practice of not allowing former convicts to gain access to guns, a privilege that often comes with a pardon. Some of Ehrlich's pardons allowed access to guns, including cases in which applicants said firearms were needed for jobs, such as security guard positions.

In an interview, O'Malley said he is aligned with Glendening's policy. "I do believe that life should mean life," he said.

O'Malley, an opponent of capital punishment, said he would review death penalty sentences "on a case-by-case basis" with the possibility of commuting them to life without parole. He did not elaborate, but aides said such decisions are not likely to be made anytime soon.

Related articles are in StandDown's clemency index.  In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency. 

Missouri Executions on Hold Because of Federal Review

That's the title of the AP report via today's Joplin Globe.  LINK

Executions effectively are on hold again in Missouri.

Incoming Chief Justice William Ray Price Jr. said Tuesday that it’s unlikely the state Supreme Court will schedule any additional executions while a federal stay is in place for the execution of Reginald Clemons.

The 8th Circuit U.S. Court of Appeals put a hold on Clemons’ scheduled June 17 execution after his attorneys challenged Missouri’s lethal injection procedures. They are seeking further court proceedings to ensure Missouri is using competent personnel who will not put inmates in pain with insufficient amounts of anesthesia before lethal injections.

Price said a federal decision in the Clemons case could apply to all Missouri inmates facing execution. So although numerous execution requests are pending, it’s unlikely the court will schedule any more.

Google News carries a longer version of the AP report, "Mo. executions on hold because of federal review," written by David Leib.

The state's incoming chief justice said Tuesday that it was unlikely any executions would be scheduled in Missouri while the courts assess an inmate's lawsuit challenging the state's lethal injection procedure.

Executions had been on hold in Missouri for four years until the state executed an inmate last month. Reginald Clemons' execution was the second scheduled in the state since the courts ruled that lethal injection in general, and the state's three-drug method in particular, was constitutional.

And:

Executions are set by the full seven-member Supreme Court, not just the chief justice, but Price said he doubted the court would "do anything so long as the 8th Circuit is looking at issues of general applicability."

Of the 35 states that allow the death penalty, executions also are effectively on hold because of court cases or moratoriums in California, Delaware, Illinois, Maryland, Nevada and North Carolina, according to the Washington, D.C.-based Death Penalty Information Center.

Missouri, once a leading death penalty state, had conducted no executions from October 2005 until this May.

Price said the Missouri Supreme Court has "tried to move as expeditiously as possible" in setting executions but has been slowed by the federal courts. "We can't help that," he added.

In 2006, a federal judge declared Missouri's lethal injection process unconstitutional after the surgeon who was overseeing executions testified he sometimes transposed numbers and operated without written procedures or supervision.

The Missouri Department of Corrections responded by adopting written procedures detailing the precise amounts and order of the chemicals to be injected. A federal judge upheld the protocol in 2008, and the state Supreme Court in February upheld the process by which Missouri adopted the execution procedures.

Clemons' attorneys argued before the 8th Circuit in February that the state has not shown that it can carry out the procedures correctly. The court, which has not yet ruled on the appeal, granted a stay on June 5 without giving a reason.

Today's Kansas City Star carries a brief item, "Executions in Missouri are put on hold by state high court," by Jason Noble.

In a rare meeting with reporters, state Supreme Court Judge William Ray Price Jr. said his court interpreted the federal court’s stay to apply to all executions in the state.

Related articles are in the lethal injection category index.  Several posts of note include:

• Voices From Missouri
• AP Interview with Dr. Alan Doerhoff
• Missouri Execution Nurse Had Criminal Record
• Missouri Doctor Proud of Role in Executions

More Opinion From California

"Time for Californians to end death penalty," is the title of Janis Gay's OpEd in today's Napa Valley Register.

John Van de Kamp’s commentary in the June 12 edition of the Register calling for the end of the death penalty was spot on.

Van de Kamp was California Attorney General for eight years and after retiring from politics the chair of the California Commission on the Fair Administration of Justice.
The commission met 31 times over several years and examined many aspects of California’s justice system. Only three of those sessions examined the death penalty in California, yet Mr. Van de Kamp was so moved by what he learned he now speaks in a reasoned and clear voice for its abolition.

Others in law enforcement are joining him.
Recently Jeanne Woodford, former San Quentin warden who oversaw the execution of Robert Lee Massie, joined Van de Kamp at an event to talk about her change of attitude. “It is a public policy that devalues our very being and detracts crucial resources from programs that could truly make our communities safe.”

And:

There are more than 670 men on death row in San Quentin. We have executed 13 since 1977 and four times that many have died from natural causes or suicide. The system is broken and it would take a minimum of an additional $95 million annually to fix it. If the governor would commute all the sentences of the men on death row to permanent imprisonment, we will save more than $125 million a year.

At a time when we are making our state less safe by cutting law enforcement, safety departments and victims’ services, it just is crazy not to end the futility and madness of the death penalty.

There is one area in which I would disagree with Mr. Van de Kamp. He says we need a courageous governor to stop the death penalty. It is not the governor’s decision; it will be ours. Unlike most states in the U.S., Californians must vote to end the death penalty. Until we have that opportunity, we can all make it clear to California district attorneys that death penalty trials cost too much and threaten our safety.

Earlier coverage from California begins here.

John Berendt on the Troy Davis Case

Berendt, the author of the monster best-selling book Midnight in the Garden of Good and Evil, set in Savannah, writes the OpEd, "Why the rush to execute Davis?"  It appears in today's edition of the Savannah Morning News.

Time is running out for Troy Davis, who was convicted of murdering Savannah policeman Mark MacPhail in 1989. He now faces the death penalty, despite new evidence that suggests he might actually be innocent.

Seven of the nine witnesses who identified Davis as the shooter have since recanted their testimony in sworn affidavits. Some complain the police pressured them. One of the two witnesses who did not recant became a suspect himself when five new witnesses came forward to say they had heard him confess.

Nonetheless, District Attorney Spencer Lawton refused to order an evidentiary hearing, bucking a growing consensus that the most reasonable course would be to reopen the case - a position supported by former FBI chief William Sessions, former Congressman Bob Barr, Jimmy Carter, the European Parliament, Amnesty International and others.

Last October, before leaving office, Lawton broke his 17-year silence to tell his side of the story in a remarkably combative statement.

He opens by questioning the motives of those who have petitioned for a new hearing: "The only information the public has had in the 17 years since Troy Davis's conviction has been generated by people ideologically opposed to the death penalty."

This is patently untrue. Many of the petitioners, including Bob Barr and Judge Sessions, support the death penalty. They draw the line, however, at executing a defendant who might be innocent.

As to the seven witnesses who recanted their testimony, Lawton says loftily, "This is not believable." He suggests that their affidavits might have been "paid for, or coerced, or the product of a fading memory."

All the more reason to hold a court hearing where the recanting witnesses would be cross-examined under oath.

And:

Despite Lawton's arguments, doubts remain - and so does the question: What is the urgency to execute Troy Davis?

Fortunately, the case is no longer in Lawton's hands but in those of the new DA, Larry Chisolm, who comes to it unencumbered by years of appellate wrangling. One can hope Mr. Chisolm will opt for the humane course and finally let all the evidence be properly heard.

Earlier coverage of the Troy Davis case begins here.

Washington State & Lethal Injection

"State's top prisons doctor quit over execution policy," is the title of a report in today's Seattle Times.

About two years ago, Dr. Marc Stern tripped over a jarring line in Washington's death-penalty policy:

As head doctor for the state's 16,000 prison inmates, he had to ensure the state's lethal-injection table was in working order before each execution.

"This is ludicrous," Stern, then medical director for the Department of Corrections (DOC), remembers telling his boss. "I can't do this. I won't do this. I'm not allowed to do this."

That was the beginning of Stern's unlikely evolution into a hero of the anti-death-penalty movement. He quit the DOC late last year on the eve of a scheduled execution, formally accused the DOC of illegally obtaining the lethal-injection drugs and, last month, was a star witness for death-row inmates challenging their executions in court. He is heralded on blogs and recently received a letter from Denmark's Amnesty International praising his "brave, difficult and recommendable act" of quitting.

Stern says he opposes the death penalty but insists he is no zealot for the condemned. Instead, he felt he had to quit when he found out some of his 700 health-care staffers had become involved in preparations for an execution.

To Stern, medical-ethics policies as far back as the 4th century B.C. — Hippocrates' admonition to do no harm — apply to his actions and to his supervision. If he couldn't play a role, neither could his staff. And he wasn't willing to suggest alternatives, because that would, indirectly, assist in the execution.

But little did Stern know at the time, his staff was far more involved than he imagined, according to depositions taken as part of a pending lawsuit filed by two condemned inmates challenging the constitutionality of the lethal-injection procedure.

And with three potential executions within the next year, the question of medical ethics and executions is likely to grow.

And:

The American Medical Association (AMA), like other medical groups, admonishes physicians from any direct role with lethal injections, including "an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned."

Richard Deiter, executive director of the Death Penalty Information Center, said he knows of a handful of physicians willing to act as roving consultants for lethal injections, but relatively little is known about the involvement of medical staff because of secrecy surrounding executions.

"States are in a bind because they are bound to avoid cruel or unnecessarily painful punishment, and this is a medical procedure, so doing all you can means usually having a doctor involved," Deiter said. "The best course of action is one that is ethically compromised or questionable [for physicians]."

And:

In the days before he resigned in November, Stern consulted with Dr. Robert Greifinger, former medical director of New York's prison system who quit in 1995 after being ordered to be involved in an execution. "It is a moral-code issue," Greifinger said. "It has nothing to do with execution as a means of punishment. It's the physician role."

Since he quit, Stern has taught at the University of Washington and worked as a consultant on a project to improve medical-records access in the state's jails.

Stenson's execution — and two others scheduled for last March — were all stayed, pending various further court actions. In March, the four-member execution team quit for fear their identities would be disclosed in a pending lawsuit.

Blonien, the DOC administrator, said it is possible medical staff from outside DOC would be hired for lethal injections, but, with no executions imminent, that decision has not been made.

But the issue that made Stern quit remains. A doctor who assumed some of his duties has lodged similar objections about involvement of DOC staff. No changes have been made to the state execution policy, but Vail, the DOC secretary, took the issue "under advisement," according to a spokeswoman.

Related articles are in the lethal injection category index.  Earlier coverage from Washington State begins here.  Notable posts include:

• More From Washington State
• Doctor Quits Prison Job Over Execution
• Lethal Injection and Medical Ethics

Failing the Test

That's the title of an editorial in today's Houston Chronicle regarding the Supreme Court's Osborne ruling.  The editorial is subtitled, "Court ruling denies inmates the right to DNA evidence."

Texas is not known as a liberal state when it comes to criminal justice. Yet back in 2001, Lone Star prosecutors and defense attorneys came together to back state legislation requiring the preservation of biological evidence in criminal cases and to allow convicted inmates the right to petition for DNA testing that could conclusively establish their guilt or innocence.

The result is that DNA testing has exonerated 38 wrongfully convicted Texans. Nationwide, the Innocence Project, a prisoner advocacy group, says the tests have established the innocence of 240 inmates serving time for crimes they did not commit, including at least 17 facing execution. Despite those convincing statistics, three states currently lack laws allowing convicts the right to petition for DNA testing and several others permit it only in death penalty cases.

Last week’s 5-4 decision by the U.S. Supreme Court denying a constitutional right to convicted prisoners to test DNA evidence creates an unfair legal disparity. The vast majority of states gives the wrongfully convicted an opportunity to rectify injustice. In the states that don’t, prisoners seeking to prove their innocence are just out of luck.

And:

In its ruling the court has turned its back on those imprisoned in the handful of states that refuse to accept the necessity of such tests. Justice shouldn’t depend on the location where one happens to be tried and convicted.

Coverage of the Osborne ruling begins with this post.

More Coverage of the Sotomayor Nomination

Pennsylvania's Harrisburg Patriot-News carries an OpEd, "Obama's Supreme Court nominee raises concerns."  It's written by Bruce Castor, a former district attorney.

Having served in law enforcement for 22 years, experience has afforded me the opportunity to observe (sometimes close-up and sometimes from afar) some of the worst killers in Pennsylvania. Nearly all of my career was spent investigating and prosecuting homicides.

This fall, the United States Supreme Court will be reviewing a case of one of the commonwealth's worst.

In 1983, Joseph Kindler was convicted and sentenced to death for murdering a witness against him in a burglary. Since his conviction, Kindler escaped from jail. Not just once, but twice.

The reason Kindler's case reached the U.S. Supreme Court is a little complicated. Basically, the Pennsylvania Supreme Court took the position that since Kindler was on the lam during the time within which he could have appealed his conviction, he waived his right to ask for a higher court to review his case since the time period for filing the appeal had expired.

Nevertheless, the Pennsylvania Supreme Court ruled that there was sufficient evidence upon which to base Kindler's conviction and further that the death penalty was appropriately imposed under the law.

The U.S. Supreme Court declined to review the Pennsylvania Supreme Court's decision. However, another federal court later ruled that it was not bound by the Pennsylvania finding that the killer had waived his appeal rights by escaping. That court went on to decide in Kindler's favor and ordered him off of death row.

The U. S. Supreme Court will shortly be called upon to make a decision on whether the Pennsylvania Supreme Court is the final arbiter of Pennsylvania's laws or does a federal court have the final say on the interpretation of a Pennsylvania statute.

Ultimately, whatever its decision, the U.S. Supreme Court will set a strong precedent for how our states are permitted to deter and punish violent criminals in our society.

Alliance for Justice has issued several factsheets, "The Sotomayor Record."

Sonia Sotomayor will be a strong voice to uphold the Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, regardless of wealth, status, or popularity.

President Obama has nominated a highly qualified candidate with a compelling personal story and outstanding educational credentials.  Furthermore, the president is making history by nominating the first Latina to the Supreme Court.  Judge Sotomayor has more federal judicial experience than any justice nominated to the Supreme Court in the past 100 years.

And:

» READ AFJ'S CRIMINAL JUSTICE REPORT ON SOTOMAYOR

Finally for today, Tony Mauro writes, "Sotomayor, word by word: Nominee's dense writing style works through every detail," for National Law Journal.  Here's his beginning:

Judge Sonia Sotomayor regularly sends her law clerks to the records office at the U.S. Court of Appeals for the 2d Circuit. There, they gather up the entire history of cases on which Sotomayor is writing an opinion or dissent — all the motions in limine, the briefs on summary judgment, everything that came up from the district court.

Not many of Sotomayor's fellow judges do the same thing, said Melissa Murray, who clerked for her in 2003 and 2004. "There were very few cases where we had to fight with other chambers to get the record," recalled Murray, who now teaches law at the University of California, Berkeley School of Law.

Sotomayor's preoccupation with the record usually finds its way into her writing and offers partial explanation for what some see as a weak spot in her résumé: those long, plodding opinions that review every moment in the case history and cite, explore and dispose of every point made in the briefs and arguments. Her thoroughness makes for a sometimes leaden writing style that has emerged as a point of criticism now that she has been nominated to the U.S. Supreme Court — even though the writing of some current justices also fails to soar. David Souter, the man she would replace, is a master of the triple negative and has a quaint, almost 19th century prose style that pleases some and bores others.

Supporters have rallied to Sotomayor's defense. "She's very thorough in addressing all the issues, rather than sweeping the chess pieces off the table," said fellow 2d Circuit Judge Robert Katzmann. He called that a good thing: "There is a transparency, and no mystery, to her thought process."

But what Katzmann sees as transparency looks like smoked glass to critics.

Earlier coverage of the nomination begins here.

Mississippi Death Penalty Under Scrutiny

That's the title of an AP report written by Jack Elliott, via today's Memphis Commercial Appeal.  The subtitle is, "Case before Court of Appeals challenges law's constitutionality."

Gerald James Holland's attack on the constitutionality of Mississippi's death penalty law appears to be flying under the radar.

The attorney general's office is confident that the 5th U.S. Circuit Court of Appeals will find Holland was legally re-sentenced to death under Mississippi law.

But Holland's lawyers believe the New Orleans appeals court will find fault with a decades-old law that allows a jury unfamiliar with the details of a crime -- as they claim occurred during Holland's re-sentencing -- to decide a death sentence.

In Mississippi, capital murder cases require two jury trials -- one to decide guilt or innocence, and another to determine a life sentence or death.

Several states, including Louisiana and Texas, which are part of the 5th Circuit, have similar systems.

The 5th Circuit heard arguments in Holland's case in May.

And:

The Mississippi Supreme Court in 1991 upheld Holland's conviction but threw out the death sentence on a technicality. Holland was re-sentenced to death in 1993 by a Harrison County jury. The Mississippi high court upheld the second death sentence in 1997.

Jim Craig, a Jackson attorney and blogger who has handled dozens of death penalty appeals, said Mississippi jurors in death penalty cases weigh aggravating factors against mitigating factors to choose between life without parole and the death penalty.

"When the state reintroduced details about the crime as aggravating facts in Gerald Holland's sentencing case, simple fairness demanded that Mr. Holland have the opportunity to rebut those facts," Craig said.

He said while a sentencing jury can't undo a conviction, "they could decide that the state's narrative of the crime wasn't totally true, and that would have affected their sentencing decision."

In court briefs, Hood argued the Mississippi Supreme Court has held that you could not attack the finding of guilt in the sentencing phase. Hood also noted in briefs that the federal courts have deferred to the states in setting death penalty policy.

Holland's lawyers say Holland was faced with a new jury unfamiliar with the case and unfamiliar with his defense. The lawyers said while prosecutors were allowed to bring the crime of rape to the jury's attention Holland was not allowed to rebut it.

"The constitutional issue in this case is whether petitioner (Holland) can be executed on a sentence of a jury before which he was not permitted to defend himself ... the petitioner's hands were tied as he attempted to defend his life," Holland's attorneys wrote in his appeal.

In a 2007 order that led to the May hearing, the 5th Circuit said it was that dual function that raises a constitutional question in Holland's case.

"The lack of rebuttal evidence makes it much more likely that a jury would find that the state met its burden with respect to that aggravating circumstance. We believe reasonable jurists would find the resolution of this argument debatable," the 5th Circuit said.

Lethal Injection Challenge in Nebraska Dismissed

"Nebraska Supreme Court dismisses lethal-injection appeal," is the title of the article from the Saturday Lincoln Journal Star, written by JoAnne Young.

The Nebraska Supreme Court has dismissed a challenge to Nebraska’s new lethal injection law filed earlier this month by death row inmate Raymond Mata Jr.

In filing a motion on Mata’s behalf, attorney Jerry Soucie, with the Nebraska Commission on Public Advocacy, said the lethal injection bill, passed by the Legislature in late May and going into effect Aug. 30, was flawed.

He also filed a motion to replace Mata’s death sentence with a sentence of life imprisonment. That motion was overruled as moot.

Soucie said he wasn’t surprised by the court’s ruling Friday. It will pave the way for issues to be raised in future appeals, he said. It also clarified the issue of the Supreme Court’s jurisdiction.

The Omaha World-Herald has the AP report, "Ruling clears way for Mata appeal."

Other inmates on Nebraska’s death row also are expected to challenge the lethal-injection law, which was adopted last month.

Earlier coverage of the challenge and the legislature's passage of the lethal injection measure begins here.

A Life & Death Matter

That's the title of an article from the Saturday edition of the Odessa American.  It's written by Matthew McGowan.  LINK  Here's an extended exceprt:

Two days after Christmas about 13 years ago in a house on Drury Lane, Emma Fabela's son, Cesar, was shot in the head with a .22-caliber rifle. 

He died the next morning in an Odessa hospital, leaving his mother, father and sister to pick up the shattered remains of the family and try to put it all back together.

Compounding Fabela's grief was the identity of the shooter, 16-year-old Albert Lopez - her son's best friend.
"I was trying to figure out why, of course," she said. "This was a boy that we had taken into our home. He had accompanied us on several family vacations."

Now Lopez is out after about 10 years in prison, and Fabela said there are no hard feelings.
"When I heard that he was out of prison, I was afraid at that moment," said Fabela, who now owns Fabela's restaurant on West County Road 127 in Midland County just off FM 1788 near Interstate 20. "It's one thing for us to say that we have forgiven, and it's another thing to actually practice it."

Now that the scars of her son's death have faded with time, Fabela said she's thankful his killer is still alive, unlike the 439 other men and women whom the state has put to death by lethal injection since 1982.

In fact, she said she has come face to face with her son's killer since his release from prison. 

"Did I stop and embrace him? No, I didn't," Fabela said. "I just saw him and felt sorry for him. I felt pity because I'm sure it's hard to live dealing with the fact that you are the person who took somebody else's life."

In 2008, the state of Texas executed 18 people.

Today, you may see Fabela, herself a sort of murder victim, out near the county courthouse every time a Texas inmate is put to death by the state. Fabela and dozens of others show up to protest there because they are staunch opponents of the death penalty. 

"With me personally, I feel that a lot of the times we focus more on what the person has done," she said. "It's very hard for the families that have had a loved one killed, but it's not just what the person has done, but more what caused the person to act in doing that."

Standing next to her during the vigils, you're likely to see the Rev. Mark Miller of the Catholic churches of south Odessa.

Miller, along with seven other local clergymen, solidified their effort to end the death penalty in Texas last month by creating an official local chapter of the Texas Coalition Against the Death Penalty, just in time for the 200th execution since the election of Gov. Rick Perry in 2000.

And:

The way Miller sees it, God has no tolerance for death, even if it is socially accepted like the death penalty - he added that prison death certificates after an execution list the cause of death as "legal homicide."

"We think it should be considered in the sense that it is a life issue," Miller said. "We can't even give (life) away. That's why we don't accept suicide. We don't even have the right to take our own lives, much less somebody else's."

With people like the Fabelas, people armed with firsthand experiences, Miller and his colleagues hope to become a source of strength when local families are attacked.

They hope to be a source of strength for people like Lopez's family, who have their own crosses to bear.

"We have been able to overcome the anger," Fabela said. "We have been able to deal with it, and we know that we haven't had to deal with it alone."

Linda White Responds to Lubbock Editorial

Linda White, a member of Murder Victims' Families for Reconciliation, writes the OpEd, "Be careful when you're 'assuming'," for the Amarillo Globe-News.  It appeared in the Sunday edition.

Your recent editorial regarding the death penalty mentioned that one particular number was left out of the equation because it's too difficult to calculate - that of the number of victims of these 200 executed along with other victims of horrendous crimes. Left out also was the incalculable suffering of these victims.

I am one of those victims.

My 26-year-old daughter, Cathy, was murdered 22 years ago.

I assure you that I know and sympathize with their anguish over the loss of their loved ones. Rather than offer more statistics, though, I do believe in their merit when viewing the death penalty in our state, I will offer one simple story - mine.

It is the only subject that I am an expert in.

My daughter was killed by two 15-year-olds, so there was no death penalty, though they stood trial certified as adults and were given long sentences. I had no real position on the death penalty at that time - just the same visceral response that anyone has to hearing of truly heinous crimes. I often wanted to administer the punishment myself - I sometimes still do when I hear about crimes against children for I have five grandchildren of my own.

Three years after Cathy's murder, however, I decided to quit thinking on a purely emotional level and initiate a research project of my own about the death penalty. Following that exhaustive research, I became an opponent of capital punishment, and the last two decades have only strengthened my resolve. I believe it does nothing good for us as a society and only enlarges the circle of pain since it creates another grieving family, that of the offender who is executed by us.

Neither do I believe it is victim-friendly, since it consumes huge sums of money that could be used for direct victims' services, such as counseling, funeral expenses, and educational help for the children left behind.

And:

I know I will never "get over" my daughter's death, any more than I expect others to.

But I also know that I have not gotten one single moment of comfort by the state of Texas' putting people to death on my behalf. What's more, I would hate it if that's what it took for me to move forward in my life.

Please don't assume that all victims are alike and that we all want killing done - or justified - in our names.

The original Globe-News editorial is noted here; another OpEd in response, here.

Death Penalty Decisions Loom

That's the title of a lengthy Politico report by Josh Gerstein.  LINK  Here's an extended excerpt from the beginning of the article:

For the first time in his career, President Barack Obama may soon confront one of the most weighty and unsavory decisions that a chief executive must make, whether to put a murder convict to death.

The decision could land on Obama’s desk within a matter of months, due to cases winding their way through the federal courts. And while Obama is on record supporting the death penalty for particularly heinous crimes, that’s a far cry from deciding whether a specific man’s life should be taken or spared.

“The death penalty in the abstract is one thing. The reality of the death penalty and all of its nasty details is a very different thing,” said Dianne Rust-Tierney of the National Coalition Against the Death Penalty. “This is something that this president is not the only one to face…..Having seen this thing in practice, you see it as a very different animal.”

Already, with little press attention or protest from the anti-death penalty camp, Attorney General Eric Holder has authorized federal prosecutors to seek the death penalty for at least four defendants since Obama took office. In all, 55 men and two women are on federal death row, death-penalty opponents say.

But the timing of Obama’s first death-penalty decision is likely to be dictated by a case pending in Washington, involving six federal death-row inmates at most imminent risk of execution. Their sentences were stayed by a federal judge, who is deciding whether to let their executions proceed, despite their challenge to federal execution protocols.

The cases involve three members of a Richmond, Va., gang sentenced to death in 1993 for drug-related murders; two men sentenced to death for abduction, sexual assault and murder of a 16-year-girl; and another man convicted of killing a prison guard. All six defendants are black.

If the stay is lifted and execution dates are set, any of the men could ask the president to step in. And clearly, death-penalty opponents hope they have a sympathetic ear in Obama, despite his support for the limited use of executions. They hope he will try to impose more safeguards in federal capital cases, and even spare some prisoners. And they note that Holder once authored a ground-breaking federal study that found racial disparities in death penalty cases.

As a state senator in Illinois, Obama pressed for death penalty reforms, including a requirement that interrogations in capital cases be audio- or videotaped. He also opposed adding gang-related crimes to those which could prompt the death penalty.

And in his book, “The Audacity of Hope,” Obama said he saw little evidence that the death penalty is a deterrent.

Kent Impeached

"U.S. House impeaches Kent," is Stewart Powell's report for the Houston Chronicle.

The House today impeached imprisoned U.S. District Court Judge Samuel B. Kent and sent his case to the Senate for trial.

The Senate is expected to quickly convene a trial – possibly within a matter of weeks – to cut off the judge’s $174,000 annual federal salary.

The House overwhelmingly adopted four articles of impeachment against the 59-year-old jurist on rapid-fire roll call votes over the course of 30 minutes.

The vote on the first article of impeachment was 389-0. Not a single member of the House spoke on Kent’s behalf.

The charges accused Kent of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department.

Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee that urged impeachment, called Kent’s conduct “shocking and shameful.”

Rep. Sheila Jackson Lee, D-Houston, a member of the task force that investigated the case, said women across America deserve a “safe and secure workplace.”

Jackson Lee added: “We must act. We have no ability to ignore it.”

Rep. Louis Gohmert, R-Tyler, decried “the games that were played” by Kent as he tried to retain his post and the salary that goes with it even though he is in prison.

The House acted barely two weeks after a House Judiciary Committee task force heard graphic testimony about sexual attacks from case manager Cathy McBroom, 50, and legal secretary Donna Wilkerson, 45.

Kent’s refusal to immediately resign his post and relinquish his salary forced the House to take action.

The House has last impeached a federal judge in 1989. A total of 13 judges have faced impeachment proceedings in the House since 1803, seven of whom were subsequently convicted by the Senate and removed from the bench.

Kent entered a federal prison medical facility in Ayer, Mass., on Monday to begin a 33-month felony sentence on one count of obstruction of justice following a plea bargain that dropped five other charges.

Earlier coverage begins with this post.

More News Coverage of the Osborne Ruling

"Justices Reject Inmate Right to DNA Tests," is Adam Liptak's report in today's New York Times.

Prisoners have no constitutional right to DNA testing that might prove their innocence, the Supreme Courtruled on Thursday in a 5-to-4 decision. The court divided along familiar ideological lines, with the majority emphasizing that 46 states already have laws that allow at least some prisoners to gain access to DNA evidence.

And:

Chief Justice Roberts acknowledged the “unparalleled ability” of DNA testing “both to exonerate the wrongly convicted and to identify the guilty.” Such testing has played a role in 240 exonerations, according to the Innocence Project at Cardozo Law School, which represents Mr. Osborne. In 103 of those cases, the testing also identified the actual perpetrator.

Peter Neufeld, a director of the project, said Thursday’s decision would have pernicious consequences.

“It’s unquestionable that some people in some states who are factually innocent will not get DNA testing and will languish in prison,” Mr. Neufeld said. “Some of them will die in prison.”

Only four states — Alabama, Alaska, Massachusetts and Oklahoma — do not have laws in place specifically dealing with postconviction DNA testing, and Alabama recently enacted one limited to death row inmates that will become effective soon.

Many states that do allow postconviction testing impose conditions on who may seek it. Prosecutors often fight hard to deny access to DNA evidence even in states that nominally allow it, saying the prisoner in question had not met the statutory conditions.

Some laws, for instance, do not allow prisoners who have confessed to seek DNA evidence, though false confessions have been common among exonerated inmates. Other states allow testing only if it was unavailable at the time of trial.

Mr. Neufeld said the logic of Thursday’s decision might allow constitutional challenges to some of those laws.

Tony Mauro writes, "High court rejects post-conviction DNA access,"for National Law Journal and for Legal Times.

Nina Morrison of the New York-based Innocence Project, which represents defendant William Osborne, said, "It is very disappointing that the Court apparently views finality as more important than accuracy. It's very hard for laypeople to understand that." Morrison said "other avenues" are being explored to pursue Osborne's appeal further.

Osborne was convicted of sexual assault in a 1993 attack on a female prostitute near Anchorage, Alaska. For strategic reasons, his lawyer on appeal did not seek the DNA evidence, and in parole proceedings Osborne confessed to some of the actions involved in the crime. He requested the DNA testing in post-conviction proceedings. Ultimately, the U.S. Court of Appeals for the 9th Circuit ruled that the state was obliged to perform the testing and give him the results because he had a "potentially viable" claim of innocence.

The ruling in District Attorney’s Office v. Osborne (08-6) is here, in Adobe .pdf format.  The Scotus Wiki page is here, with complete briefing.  Earlier coverage of the ruling begins here.

Continued Coverage of Radelet & Lacock Study

Opposing Views carries, "States Without Death Penalty Have Lower Murder Rates," by Amnesty International.

Scientists agree, by an overwhelming majority, that the death penalty has no deterrent effect. They felt the same way over ten years ago, and nothing has changed since then. States without the death penalty continue to have significantly lower murder rates than those that retain capital punishment. And the few recent studies purporting to prove a deterrent effect, though getting heavy play in the media, have failed to impress the larger scientific community, which has exposed them as flawed and inconsistent.

The latest issue of the Journal of Criminal Law and Criminology contains a study by a Sociology professor and a graduate student at the University of Colorado-Boulder (Michael Radelet and Traci Lacock), examining the opinions of leading criminology experts on the deterrence effects of the death penalty.

The results reveal that most experts do not believe that the death penalty or the carrying out of executions serve as deterrents to murder, nor do they believe that existing empirical research supports the deterrence theory. In fact, the authors report that 88.2% of respondents do not think that the death penalty deters murder—a level of consensus comparable to the agreement among scientists regarding global climate change. At the same time, only 9.2% of surveyed experts indicated that they believed the death penalty results in a significant drop in murder cases (56.6% completely disagreed with that statement, while 32.9% thought the correlation between capital punishment and lower homicide numbers to be “largely inaccurate”; 1.3% were uncertain).

The study builds upon previous research, published in 1996, in which the opinions of 67 leading experts in the field of criminology were surveyed. The most recent study sent the same questions to a new group of experts (a total of 73), among whom were fellows from the American Society of Criminology, as well as award-winning criminology scholars.

Earlier coverage begins with this post.

Ellis Close on the Troy Davis Case

The Newsweek contributing editor writes, "Actual Innocence: A death-row case tests whether swift justice can also be certain," for the June 29 issue.  Here's the beginning:

For nearly two decades, Troy Davis has sat on death row, during which time he has accumulated a noisy band of supporters. They include former president Jimmy Carter, Nobel laureate Desmond Tutu and former Georgia congressman (and current death-penalty advocate) Bob Barr. All are convinced Davis may be innocent and deserves another chance to confront his accusers—especially since most have now recanted the testimony that convicted him. The story begins in a parking lot in Savannah, Ga. Police believe Davis pumped two bullets into off-duty cop Mark MacPhail after he tried to intervene as Davis assaulted another man around 1 a.m. on Aug. 19, 1989. Davis claims he was trying to stop the assault and had nothing to do with MacPhail's murder. But a witness fingered Davis, and the police launched a highly publicized manhunt. He surrendered on Aug. 23, and was indicted and found guilty.

The case rested on the shoulders of nine eyewitnesses—including the man who named Davis as the shooter but who others say is the real culprit. Seven of those witnesses have recanted. Most say they lied under pressure from police or prosecutors. A succession of courts has rejected their affidavits. Davis now has a long-shot petition pending before the Supreme Court requesting a hearing so those witnesses—who have never explained their reversals in court—can be heard.

In his opposing brief, Georgia's attorney general pointed out that six court proceedings and the state parole board have already rejected the recantations. This latest gambit, he argued, was simply an attempt to "circumvent" the law. "We, as attorneys, are bound.—We know what the ground rules are," says Russ Willard, spokesman for the attorney general. What Willard will not say is that Davis is actually guilty. "The trier of fact is the jury," he tells me.

And:

What happens if the Hail Mary pass to the Supreme Court fails? Larry Chisholm, the new district attorney in Chatham County, will certainly feel pressure to get involved. But the issues go beyond Davis. If courts are truly misreading the law, perhaps the law needs to be changed. The more profound question is this: must we accept that some plausibly innocent people will die as the cost of streamlining the process of justice? And is it fair to require that the sacrifice be borne almost exclusively by those too poor to mount an adequate defense at trial? Davis deserves a straight answer. So do we all.

Earlier coverage of the controversial case begins here.

Keller Trial Moved to San Antonio

"Keller trial moved from Austin to San Antonio," is Chuck Lindell's post at the Austin American-Statesman Focal Point blog. 

The special trial into misconduct charges against Sharon Keller, presiding judge of the state’s top criminal court, will be in San Antonio, not Austin as originally announced.

State District Judge David Berchelmann Jr., who was chosen by the Texas Supreme Court to preside over Keller’s trial, will use his downtown San Antonio courtroom for the proceedings — set to begin Aug. 17 and expected to last a week or longer.

The special trial was moved from Austin by agreement between Chip Babcock, Keller’s lawyer, and Mike McKetta, the lawyer representing the State Commission on Judicial Conduct.

The commission has charged Keller with improperly closing the Texas Court of Criminal Appeals to death row inmate Michael Richard on the evening of his execution in 2007.

Also this week, the commission filed amended charges against Keller. The new document beefs up the charges by claiming Keller violated two additional canons of the Texas Code of Judicial Conduct:

1. Canon 3C(1): Requiring judges to diligently and promptly discharge administrative responsibilities without bias or prejudice and to cooperate with other judges and court officials in the administration of court business.

2. Canon 3C(2): Requiring judges to ensure that court staff and officials observe the standards of diligence that apply to judges.

"Keller case going to San Antonio," is R.G. Ratcliffe's post at the Houston Chronicle's Texas Politics blog.

Keller is accused of closing the court clerk's office so Richards' appeal could not be properly filed. Keller has said the fault lay with Richards' lawyers because there were ways of filing the appeal directly with judges on the court.

The hearing is to determine whether any official action is necessary against Keller, ranging from a reprimand to removal from office.

Today's San Antonio Express-News has, "Hearing on judge in death row case to be held in S.A.," by Craig Kapitan.

A hearing to decide the fate of one of Texas' highest judges accused of judicial misconduct is now scheduled to be in a San Antonio courtroom in August.

The State Commission on Judicial Conduct is accusing Court of Criminal Appeals Presiding Judge Sharon Keller of discrediting the judiciary after she refused to accept a last-minute appeal from death row inmate Michael Wayne Richard on the day of his execution Sept. 25, 2007.

Keller's hearing was expected to be in Austin, but the judge whom the Texas Supreme Court appointed as special master in the case ordered it be held in his newly renovated courtroom in San Antonio.

State District Judge David Berchelmann Jr. is tasked with determining if any disciplinary action is necessary against Keller. He'll submit a report of his findings to the Judicial Conduct Commission, which will then have the option of dismissing the case, issuing a public censure or recommending that Keller be removed from office.

The Judicial Conduct Commission says Keller's actions cut off Richard's appeals and led to his execution when a stay was possible.

Earlier coverage begins here.

More on the Radelet & Lacock Deterrence Study

Virginia Blogger Tamar Abrams has, "Experts Agree: Death Penalty Not a Deterrent," fresh at Huffington Post.

Like many Americans, I have long had an uneasy sense of the death penalty in this country. In order to fully support it, you have to have complete faith in our justice system and in the value of deterrence. Recently the latter has been strongly challenged: A new study shows that 88% of the country's top criminologists do not believe the death penalty acts as a deterrent to homicide. The study was published earlier this week in Northwestern University School of Law's Journal of Criminal Law and Criminology authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder, and Traci Lacock, an attorney and Sociology grad student in Boulder.

"Do Executions Lower Homicide Rates? The Views of Leading Criminologists," relied on questionnaires completed by the most pre-eminent criminologists in the country. Fully 75% of them agree that "debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems." Respondents were not asked for their personal opinions about the wisdom of the death penalty, but instead to answer the questions only on the basis of their understanding of the empirical research.

And, one of Tamar's links brings you back to StandDown:

A number of states are currently considering repealing the death penalty. Just this week, former CA Attorney General John Van de Kamp called for an end to California's death penalty because it would save $1 billion over five years at a time when the state is near bankruptcy. Only three countries in the world -- China, Iran and Saudi Arabia -- execute more prisoners than the U.S. and more than 128 nations have abolished the death penalty.

This latest study validates the need for the U.S. to end a practice that harkens back to the days of the Wild West. If executions hold no value to deter other crimes and if we can't avoid the risk of executing the innocent and if they are overwhelmingly burdening state budgets, why not relegate them to history? To paraphrase an old tune, "Executions? What are they any good for? Absolutely nothing."

Earlier coverage begins here.

Loyal readers know that I do not believe data have shown any deterrent effect attributable to capital punishment.  I've also been troubled by the anecdotal evidence.  There is a timely story from Nevada's Reno Review-Journal, "Former officer's death sentence upheld."

A former police officer's death sentence for murdering an elementary school teacher in Reno and a casino worker in Sparks was upheld Wednesday by the Nevada Supreme Court.

As I've noted previously , if there is any deterrent effect, it seems that it would apply to law enforcement personnel and attorneys.  After all, they are the people most informed as to what constitutes a capital crime in their state.  And yet, there is considerable anecdotal evidence that the death penalty has not deterred crooked cops and bad barristers.  I'll gladly extend the presumption of innocence in the recent case of the "LAPD detective charged with capital murder."

Los Angeles County prosecutors Monday [June 8] charged a Los Angeles Police Department detective with premeditated murder in case that dates back to 1986.

Prosecutors said they had not decided whether to seek the death penalty for Stephanie Ilene Lazarus, 49, but execution is a possibility if Lazarus is convicted of killing her former boyfriend's wife, Sherri Rae Rasmussen. Prosecutors allege a special circumstance -- that Lazarus killed Rasmussen during a burglary -- the Los Angeles Times reported Monday.

It stands, however, as one more argument against the myth of deterrence.  Related articles are in the deterrence category index.

An Update on Oliver Diaz - UPDATED

The former Mississippi State Supreme Court justice is still making news.  KAPT-TV reports, "Diaz Changes Stance On Death Penalty."  You can watch streaming video at the link.

Former State Supreme Court Justice Oliver Diaz said his first vote on the state’s high court was to “kill an innocent man.”

Diaz said he voted to keep Kennedy Brewer on Mississippi’s death row.

Brewer was convicted of the 1992 murder and rape of his ex-girlfriend's daughter. He spent 10 years on death row before DNA evidence set him free.

“Reflecting on my votes at the Supreme Court, I realized that there is just so much error involved in these cases that it's not worth carrying out the death penalty,” Diaz said. “We have innocent people in Mississippi who have been sitting on death row for years.”

Now Diaz works with the Innocence Project to free those who are wrongfully convicted.

The Jackson Free Press has added content, "Former Justice Fights Death Penalty."

Oliver Diaz says his first vote on the Mississippi Supreme Court was to "kill an innocent man." The man he's talking about is Kennedy Brewer, wrongfully convicted of the rape and murder of a toddler in 1995.

Brewer spent six years on death row, and, although DNA evidence proved him innocent of the rape in 2001, he remained in prison until February 2008, when Mississippi finally exonerated him after Justin Albert Johnson confessed. Johnson's confession—backed up by DNA testing—also exonerated Levon Brooks, wrongfully imprisoned for a similar crime in 1990.

And:

Today, the former justice is in private practice and also works with the Innocence Project, an organization that works to free wrongfully convicted men and women from coast to coast. Innocence Project attorneys were responsible for securing Brewer and Brooks' freedom, the first DNA exonerations in Mississippi, and also worked to free Cedric Willis, who spent 12 years in prison after a wrongful conviction in 1994.

Some earlier posts featuring then-Judge Diaz include:

• Justice Seeks Executions' End
• Diaz Makes Compelling Plea on Death Penalty
• An Oregon Justice Suggests Revisiting the Death Penalty

Supreme Court Rules No Right to Post-Conviction DNA Testing

The ruling in District Attorney’s Office v. Osborne (08-6) is here, in Adobe .pdf format.  The Scotus Wiki page is here, with complete briefing.

At SCOTUS Blog, Lyle Denniston files, "Court rejects DNA access claim."

Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence.  This was one of four final rulings the Court issued Thursday, leaving ten remaining.  The next release of opinions is expected on Monday.

Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote.  Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence.  “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

While the decision appeared to be focused on whether such a right of access exists after a criminal conviction has become final, when states presumably have more authority to shape their responses to new challenges to earlier convictions, the language used by the Court majority made it appear that the sweep of the decision may turn out to be considerably broader.

At the Washington Post website, Robert Barnes writes, "Supreme Court: Prisoners Have No Right to DNA Evidence."

The Supreme Court ruled today that prisoners have no constitutional right to DNA testing that might prove their innocence long after their convictions.

In the court's first examination of how to deal with the rapidly evolving field of DNA evidence, the court's conservative majority prevailed in ruling against establishing a post-conviction constitutional right to DNA evidence.

Chief Justice John G. Roberts Jr. wrote for the majority and said that almost every state and Congress had provided ways for prisoners to get testing that might prove their innocence. This is not the time for federal courts to get involved in the process, he said.

"The elected governments of the states are actively confronting the challenges DNA technology poses to our criminal justice systems and our traditional notions of finality, as well as the opportunities it affords," Roberts wrote. "To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response."

Roberts acknowledged that Alaska is one of a handful of cases that has not passed such a law, but he said the state's courts provide a way for prisoners to get access to DNA evidence.

But that has not helped William G. Osborne, who was convicted of the rape and assault of a prostitute in a secluded area near the Anchorage International Airport in 1993. Osborne wanted to pay for a more advanced test of semen found in a condom at the crime scene, one that prosecutors agree would almost definitively prove his guilt or innocence.

Justice John Paul Stevens said Alaska's refusal to allow the testing is the reason the court should have found there is a constitutional right.

"On the record before us, there is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done in this case," he wrote. He was joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer.

Justice David H. Souter said Alaska should allow Osborne access to the DNA evidence, but did not join the others in saying there should be a constitutional right to such testing.

Reuters has, "Supreme Court rejects right for criminals to DNA tests," by James Vicini.

By a 5-4 vote, the nation's highest court refused to create a new legal right for post-conviction DNA testing, which has exonerated at least 232 people nationwide years after they had been found guilty.

Forty-six states and the federal government have laws that give convicts some access to DNA testing, according to the decision. The ruling was a victory for Alaska, one state that does not explicitly allow such testing, along with Alabama, Massachusetts, and Oklahoma.

States opposed to the testing have said it would be costly and would result in unnecessary litigation in cases in which a defendant received a fair trial and there was overwhelming evidence supporting a guilty verdict.

The justices overturned a U.S. appeals court ruling for William Osborne, who was convicted for the 1993 rape, kidnapping and assault of a prostitute near the Anchorage airport.

The appeals court had ruled that Osborne has a right to subject certain biological evidence to advanced DNA testing as part of his later claims of innocence.

Osborne had waived his chance for the advanced DNA test at trial and later admitted his guilt under oath to a parole board in 2004. Another man also convicted in the attack has repeatedly said Osborne took part in the crimes.

Osborne's lawyers had decided not to pursue the more advanced DNA testing before his trial, fearing the results might incriminate him. A less refined test by the state showed the biological evidence could be from Osborne as well as about 15 percent of all black men.

Osborne had sought access to the biological evidence for the advanced DNA testing in an effort to prove his innocence.

"Court Finds Convicts Have No Right to Test DNA," is the AP report via the New York Times.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing has led to the exoneration of at least 232 people who had been found guilty of murder, rape and other violent crimes.

Earlier coverage of the case is here.

A Response to 'Justice Served'

E.A Stine, producer of KPFT's Execution Watch, has an OpEd letter in today's Amarillo Globe News. "Capital punishment is wrong."  It's a response to the newspaper's editorial earlier this month, "Justice Served," and noted here.

The June 9 editorial, "Justice served," criticizes protesters of Gov. Perry's 200th execution for focusing too much on Texas' high rate of executions, overlooking the horrors of the crimes punished and portraying capital punishment as a "haphazard rush to judgment."

The execution rate is important because it's striking.

Whether you live in Amarillo or Houston, you're a Texan and have a right to know that Texas is viewed internationally as the death penalty capital of the western world and why.

As for overlooking the horror of murder, everyone knows prisons hold many who've committed terrible killings. Take the man who shot my unarmed cousin, Gary Stein, a scholarship undergrad at Yale, and left him to bleed to death when he wouldn't surrender his watch in a robbery. The waste of Gary's death was profound. But increasing his killer's punishment from imprisonment to execution would only provide a grotesque re-enactment of the crime that ended Gary's life.

As for the death penalty being haphazard, even people who support capital punishment cannot support a system that executes convicts with credible innocence claims, the mentally deficient, foreign nationals protected by international agreements, and prisoners convicted in trials tainted by racism.

Brewer Sentencing Trial

The Amarillo Globe-News reports, "A matter of life or death - Man awaits second sentencing for murder committed in 1990," by Chris Ramirez.

No one disputes that Brent Ray Brewer killed Robert Laminack almost 20 years ago.

At issue for jurors - for a second time - will be whether he pays for the crime with his life.

Defense attorney Anthony Odiorn of Lubbock plans to argue his 39-year-old client should be spared a lethal injection, as jury selection in Brewer's long-awaited sentencing is scheduled to start Monday. In court filings, Randall County Criminal District Attorney James Farren says he will pursue the death penalty once again.

"We're confident sufficient evidence exists to seek it in this case," Farren said. "But whether he gets it or not is up to the jury."

The drama will unfold in District Court in Canyon. Visiting District Judge Quay Parker will preside over jury selection, which is expected to last about three weeks. Hal Miner, 47th district judge, will preside during sentencing.

Prosecutors hope to begin taking testimony from witnesses around Aug. 10.

The new sentencing trial is the result of the 2007 Supreme Court ruling in Brewer's case, which was consolidated with another Texas death penalty case, Abdul-Kabir v. Quarterman.  At issue was the language of the state's jury instruction and the ability of the jury to properly consider mitigating factors.  More on Abdul-Kabir v. Quarterman, via Oyez; StandDown's coverage of the ruling, here.

More on the North Carolina Racial Justice Act Legislation

Today's Duke Chronicle carries the report, "McKissick, state legislators debate racial justice act," written by Julius Jones.

The North Carolina Racial Justice Act may soon allow death row inmates who believe their sentences were motivated by race to challenge their fate in court.

The N.C. House Ways and Means Committee voted to approve the legislation June 9, bringing the bill one step closer to a vote on the House floor. The N.C. Senate passed the act May 14.

If the bill becomes law, it will allow inmates-who can prove that race was a factor in the jury's sentencing or the prosecutor's decision to seek the death penalty-to have their sentence commuted to life in prison without the possibility of parole.

In an unexpected turn of events, the N.C. Senate's Minority Leader, Republican state Sen. Phil Berger of Eden-one of the bill's opponents-added an amendment in the Senate aimed at ending the state's de facto moratorium on the death penalty. If the full legislature approves the Senate version of the bill, then North Carolina could resume executions.

Supporters of the bill said the legislation is essential to addressing the impact of racial disparities in the criminal justice system.

"Race continues to play an important factor in the decision to seek and to implement the death penalty," said Jeremy Collins, campaign coordinator of the N.C. Coalition for a Moratorium. "Not only does race continue to be a factor, but it also continues to be the most difficult to prove in court."

Berger, however, said the bill was unnecessary because he did not believe race was a determinate factor in the decision to seek and impose the death penalty. He added that constitutional protections already exist under the equal protection clause of the 14th amendment if race was a factor in specific cases.

"The Racial Justice Act does away with our historical reliance on jurisprudence and substitutes a statistical analysis that may or may not have any relevance to the particular case," he said.

Collins disagreed, noting that blacks disproportionately receive the death penalty and represent a large percentage of the prison population. Yet, there is no evidence to support the idea that they commit crimes at a rate that supports the disparity, he added.

"That shows us two very important facts," he said. "First, the race of the victim does matter in death penalty cases. Second, there is a certain value of human life and the message we send is that black life is not as valuable as white life."

Earlier coverage of the legislation begins here.

Experts Say Death Penalty Doesn't Deter Murder

There's more coverage today of the Radelet & Lacock deterrence study.  That is the headline of an AFP report via Google News.  LINK

The death penalty fails to deter crime or lower murder rates, according to an overwhelming majority of top criminologists questioned for a US university study published this week.

Just over 88 percent of 79 experts from the American Society of Criminology said they did not think the death penalty "acts as a deterrent," researchers at Chicago's Northwestern University said in a statement.

In the study based on a similar 1996 report, the criminologists were asked for responses based on "their understanding of the empirical research," and not their personal opinion of the effects of capital punishment.

The 88.2 percent negative result is only a slight rise on the 1996 study's finding of 83.6 percent.

"Our survey indicates that the vast majority of the world's top criminologists believe that the empirical research has revealed (the) deterrence hypothesis as a myth," the statement said.

Lead researchers Michael Radelet and Traci Lack said 64 percent of the general public in a 2006 survey also thought the death penalty did not reduce murder rates.

On whether abolishing the death penalty could significantly effect homicides, 87 percent replied in the negative -- little change to the 86.5 percent in the 1996 study.

And 90.5 percent said they did not think a possible sentence of life imprisonment affected murder rates.

Earlier coverage is here; the report itself, here.

Behind Bars ... Sort Of

That's the title of an article written by Jim Lewis in the June 14 issue of the New York Times Sunday Magazine.  LINK  Here's an excerpt from the beginning of this article:

Go ahead and say it; everyone does. Certainly I did. Here’s a striking building, perched on a slope outside the small Austrian town of Leoben — a sleek structure made of glass, wood and concrete, stately but agile, sure in its rhythms and proportions: each part bears an obvious relationship to the whole. In the daytime, the corridors and rooms are flooded with sunshine. At night, the whole structure glows from within. A markedly well-made building, and what is it? A prison.

Everybody says this, or something like it: I guess crime does pay, after all. Or, That’s bigger than my apartment. (New Yorkers, in particular, tend to take this route.) Or, Maybe I should move to Austria and rob a couple of banks. It’s a reflex, and perfectly understandable, though it’s also foolish and untrue — about as sensible as looking at a new hospital wing and saying, Gee, I wish I had cancer.

To be more accurate, free people say these things. Prisoners don’t. Nor, for the most part, do the guards, the wardens or the administrators; nor do legal scholars or experts on corrections; nor does Josef Hohensinn, who designed the Leoben prison. They all say something else: No one, however down-and-out or cynical, wants to go to prison, however comfortable it may be.

And:

An assistant warden accompanied us on our tour, one of three guards on duty tasked with watching more than 200 inmates. On one side of the prison there was a block of prisoners on remand; on the other side were the convicts, living in units called pods — groups of 15 one-person cells with floor-to-ceiling windows, private lavatories and a common space that includes a small kitchen. We came upon one prisoner cooking a late lunch for a few of his podmates; we stood there for a bit, chatting. They were wearing their own clothes. The utensils on the table were metal. “They are criminals,” Hohensinn said to me, “but they are also human beings. The more normal a life you give them here, the less necessary it is to resocialize them when they leave.” His principle, he said, was simple: “Maximum security outside; maximum freedom inside.” (The bars over the balconies are there to ensure the inmates’ safety, Hohensinn said; the surrounding wall outside is more than enough to make sure no one gets free.)

We walked around some more. There was a gymnasium, a prayer room, a room for conjugal visits. I asked Hohensinn what he would do if, contrary to fact, it were conclusively proved that prisons like his encouraged crime rather than diminished it. Would he renounce the design? He shook his head. “The prisoners’ dignity is all I really care about,” he told me.

Suppose we can’t bring ourselves to be quite so magnanimous. Suppose all we’re interested in is reducing crime. If you trust a criminal with a better environment, will he prove trustworthy? As far as Leoben is concerned, it’s too soon to tell. The place has been open for only four years. But I noticed something as we were leaving, and in the absence of any other data it seemed significant. In the three or four hours we spent roaming all through the place, I hadn’t seen a single example of vandalism.

It sounds odd to say, but it’s nonetheless true: we punish people with architecture. The building is the method. We put criminals in a locked room, inside a locked structure, and we leave them there for a specified period of time.

It wasn’t always so. Prison is an invention, and a fairly recent one at that: it wasn’t until the 18th century that incarceration became our primary form of punishment.

The NYT website also has this slide show of images from the Austrian facility.

A Rare Non-Capital Clemency in Pennsylvania

The Philadelphia Inquirer has an interesting article, "In a rarity, Rendell commutes a life sentence," because it examines the changed landscape of clemency.  Though the article focuses on Pennsylvania, clemency in most states is rarely used in ways that the process routinely was in the past.  The report is written by Larry King.

On June 2, Gov. Rendell performed what has become one of the rarest acts for a Pennsylvania governor.

He commuted the life sentence of a convicted murderer, paving the way for a 54-year-old Bucks County man to spend the rest of his life on parole.

Such acts of mercy, once granted by the dozens, have all but ended for Pennsylvania's more than 4,600 lifers, the result of a 1994 commutation gone lethally bad.

The springing of George Gregory Orlowski, sentenced for his part in a 1980 murder, is only the second life term commuted since Rendell took office - and only the third in Pennsylvania since 1994.

In contrast, 12 life sentences per year, on average, were commuted from 1971 through 1994.

The Orlowski decision could well be the last for a while. The Pennsylvania Board of Pardons, which must recommend clemency cases to the governor, has forwarded no other life sentences for Rendell to consider.

"Unfortunately, I think it is kind of an anomaly," said William DiMascio, executive director of the Pennsylvania Prison Society, which is suing the state over its tightened commutation standards. "We were all stunned by it."

For lifers, the clemency spigot all but closed in 1994, thanks to a pardoned killer named Reginald McFadden.

In 1994, Gov. Robert P. Casey paroled McFadden, who had served 24 years of a life sentence for murdering a 60-year-old Philadelphia woman. The state pardons board had recommended the action by a 4-1 vote.

Soon afterward, McFadden murdered two more people in New York and kidnapped and raped a third. The news broke a month before the 1994 gubernatorial election, and was credited in part for Tom Ridge's victory over then-Lt. Gov. Mark Singel, who had been among the pardons board members approving McFadden's release.

Ridge commuted no life sentences as governor. He instead backed a 1997 constitutional amendment that now requires a unanimous vote of the five-member pardons board to recommend clemency for anyone serving a life sentence. Before, a simple majority vote had sufficed.

The amendment also required a majority vote of the board to even hear an inmate's case. That change dramatically cut the number of pardons board hearings.

Since 2001, only 10 board hearings on inmates with life sentences have been held, resulting in three commutation recommendations for convicted murderers.

In January 2003, Gov. Mark Schweiker commuted the sentence of Ricki Pinkins. At 21, Pinkins had lent a handgun to a friend who used it in a fatal 1982 bar robbery in Mercer County.

In 2007, Rendell commuted the sentence of Michael H. Anderson. He was imprisoned in 1971, at 18, after a friend fatally stabbed a bus rider they were robbing in Philadelphia. The killer spent just seven years in prison.

Related articles are in the clemency category index.

The Racial Justice Act in North Carolina

"Group urges legislators to pass race bill," is the title of a news article in today's Winston-Salem Journal written by Michael Hewlett.

A group of pastors urged state legislators to pass a bill that would allow defendants to challenge the application of the death penalty by citing statistical racial disparities in the overall use of capital punishment.

The bill, which was introduced by state Reps. Larry Womble and Earline Parmon of Forsyth County, is needed to provide a check on a criminal-justice system in which racial bias plays a major role in determining who ends up on death row and who doesn't, said the Rev. Carlton Eversley, the president of the Ministers Conference of Winston-Salem and Vicinity.

And the proof of that racial bias, Eversley said, can be seen clearly in the case of Darryl Hunt, a black man who spent 19 years in prison for killing and raping Deborah Sykes, a white copy editor at the now-defunct Winston-Salem Sentinel. In 2003, Hunt was exonerated after another man, Willard Brown, confessed to the Sykes' killing.

"Anyone who believes that race plays no role in who gets the death penalty is sadly mistaken," he said yesterday during a news conference held at Dellabrook Presbyterian Church, where he is the pastor.

He was among 11 pastors, including the Rev. Nathan Parrish of Peace Haven Baptist Church, the Rev. Judith Dancy of Winston-Salem Friends Meeting and the Rev. Kelly Carpenter of Green Street United Methodist Church, who were at Dellabrook.

A similar news conference was held in Greensboro at New Light Baptist Church. Both conferences were organized by People of Faith Against the Death Penalty, a nonpartisan organization based in Carrboro.

The bill, known as the "N.C. Racial Justice Act," would allow judges to overturn a death sentence if a defendant proved through statistics that race played a significant factor in how the death penalty was applied in previous cases, either in that county, prosecutorial district of the state as a whole.

A defendant could use statistics to try to show that race was a factor either in a prosecutor's decision to pursue the death penalty or in a jury's decision to impose it.

Earlier coverage of the legislation begins with this post.

Initial News Coverage of Radelet & Lacock Deterrence Study

The Boulder Daily Camera reports, "Criminologists: Death penalty doesn't deter murder."  It's written by Elizabeth Miller.  Here's an extended excerpt:

Eighty-eight percent of criminologists do not believe the death penalty deters murder, according to a study by University of Colorado sociology professor Michael Radelet released Tuesday.

Radelet, who completed the study with attorney and CU sociology graduate student Traci Lacock, surveyed 77 leading criminologists on the death penalty’s effects on murder rates. The study was published in the Northwestern University School of Law’s Journal of Criminal Law and Criminology.

“The deterrent effect of a punishment is really an effect of two things — severity and certainty — and it turns out that certainty is a more effective deterrent than severity,” Radelet said. “In Colorado, if we wanted to reduce the homicide rate, we would spend our money solving some of the 14,000 homicides that we know of that haven’t been solved. Anything we can do to increase the certainty of apprehension is a much better deterrent than taking people we already know will die in prison and spending millions to determine the date and cause of death.”

According to Radelet, 40 percent of homicide cases in Colorado remain unsolved.

A bill sponsored earlier this spring by state House Majority Leader Paul Weissmann, D-Louisville, which was designed to abolish capital punishment, passed the House of Representatives with a 33-32 vote. The bill later failed in the state Senate.

Studies conducted over the last 75 years have supported both sides of the argument on the death penalty, some with similar findings to Radelet’s and some suggesting that the death penalty does deter homicides better than long-term imprisonment.

Other studies often compare frequency of execution with the murder rate in states that have abolished the death penalty and those that have not, Radelet said. He said those studies show Texas, for example, had a murder rate of 5.1 per 100,000 people in 2007 and has put 439 people to death since 1976, while Colorado had a 3.9 murder rate in the same year and has put just one person to death since 1976.

The Daily Camera report also has this table:

The study, by the numbers

88 percent: Criminologists who do not believe the death penalty deters murder

87 percent: Criminologists who do not believe abolishing the death penalty would have a significant effect on murder rates

9 percent: Criminologists who believe that death-penalty states have lower homicide rates than other states

75 percent: Respondents who agreed with the statement: “Debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems.”

77: Number of criminologists who responded to the survey

At the Dallas Morning News Texas Death Penalty blog, Diane Jennings posts, "Local criminologist disagrees on study showing little deterrent value of death penalty."

Professor James Marquart, head of the criminology and sociology program at the University of Texas at Dallas disagrees with a recent study of criminologists nationwide that concluded the death penalty has little deterrent effect. According to a study by Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder and Traci Lacock, an attorney and Sociology graduate student, 88 percent of the country's "top criminologists" don't believe the death penalty acts as a deterrent.

Dr. Marquart, author of The Rope, the Chair and the Needle, and a former correctional officer, didn't participate in the study. He says academic findings "do support that, but in my own view...one must examine the facts in each case. It comes down to 'Do you have the right person?' And if you've got the right perpetrator, factually, legally and everything else, I believe that there is an individual deterrent value to it. And that means that if you have the right person and that person is executed, they are deterred. End of story."

This post from yesterday notes the new scholarship from Radelet and Lacock.  You can read their article here.  Related articles are in the deterrence category index.