The StandDown Texas Project

The Price of Justice

That's the title of an in-depth, three-day examination of Texas' indigent defense system, particularly in Hidalgo County in South Texas.  The Monitor of McAllen series is a must-read.  It's written by Jeremy Roebuck and Jared Janes.  The series front is here.

Hidalgo County is set to pay $8.6 million this year for providing attorneys to criminal defendants who couldn’t afford to hire their own. It’s a cost both state law and the U.S. Constitution obligate local governments to pay – but one that is becoming harder to afford. Hidalgo County’s indigent defense spending has increased from $2 million in 2001 to a projected $9.9 million in 2010 – a 375 percent growth over a decade. Some say that’s just the price of justice in a region with one of the poorest, yet fastest growing populations in the nation. Others insist the county’s model of offering low-income legal services is inefficient, open to abuse and largely unmanageable.

And here, from the series front, are the individual article summaries and links:

Day 1 -Sunday, December 20, 2009
VIDEO: The rising cost of indigent defense
Watch a video overview of the indigent defense system

Expense of Defense: Costly indigent defense program burdened by inefficiencies
This year, Hidalgo County is on track to spend $8.6 million on indigent defense — more than that allotted for parks, sanitation or public health clinics. Next year, that expense is predicted to rise 15 percent, to almost five times the $2.1 million local taxpayers spent just a decade ago.

For court-appointed attorneys, work keeps coming
Those payments are just one piece of Hidalgo County's $8.6 million indigent defense costs this year. But his efforts - and those of some 200 other lawyers who took on court appointments this year - are essential to providing justice in one of the poorest counties in the nation.

Budgeting for indigent defense a tricky process
County commissioners already were forced to tap into an emergency fund once this year to replenish the coffer. But a second request for an extra $1 million faced a challenge from some: How could funding indigent defense in one of the poorest counties in the nation be considered an unforeseen expense?

On the indigent defense team, he's the point guard
During the past six years, his office has helped create a county public defender system, drawn up a more detailed method of income screening, and set up a computer networking system that allows attorneys to talk to their clients without driving to the county jail. Each small step has chipped away at the overall indigent defense costs in ways that haven't always been reflected in the current funding debate.

Day 2 - Monday, December 21, 2009
VIDEO: Another interview with an indigent defendant
Juan Tello Hinojosa explains how court-appointed attorneys helped him when he was accused of a crime

No price too high: Low-income suspects face steep odds without county-funded legal help
Mitchell Valentine insisted on his innocence from the beginning, but it took two dedicated attorneys and a team of scientific experts to finally clear him of his capital murder charge - all of which lay well beyond the unemployed 26-year-old's meager financial means. As Hidalgo County continues to grapple with the rising costs of indigent defense, Valentine's case offers one example of why footing that bill is so important.

Income verification a tricky task in Hidalgo County
They screen thousands of inmates to determine indigence, distribute cases among the county's public defenders and private attorneys and verify that the lawyers meet with their clients within two days of their assignment to a case. As counties across the state re-examine their indigent defense systems, this small office offers insight into a critical question: What's the most cost-effective way to determine indigence?

Day 3 - Tuesday, December 22, 2009
A Public Option: Little-used county office one choice in curbing indigent defense costs
Studies have consistently shown a public defender’s office can do the same work cheaper than court-appointed, private attorneys. But Hidalgo County may have the only public defenders in the country who routinely complain they don’t have enough to do. As the county considers ways to control an indigent defense expense projected to hit $9.9 million next year, experts and state administrators say it is underutilizing one solution to its cost conundrum.

Texas counties take different approach to common indigent defense problem
Bad economic times often lead to more crimes and to more people needing court-appointed attorneys. But property tax revenue — the primary funding source for the state’s local governments — has been on the decline, and cash-strapped counties are increasingly looking at ways to save on indigent defense. Here are innovative options other counties are using.

ONLINE EXCLUSIVE: Other counties push public defender's offices
If Hidalgo County wants to better utilize its own county-employed attorneys for the indigent, it could learn a lot by examining other such programs at both the federal and state level. In Texas, public defender’s offices range in size from the five Bexar County attorneys who only handle cases on appeals to the 90-plus attorneys in Dallas County who took on more than 45,000 cases in adult and juvenile criminal courts last year.

And:

Indigent Defense Database
Searchable database of all attorney payments and cases from 2005 to 2009

The 200-plus private attorneys who receive court-appointed cases took home nearly $30 million in taxpayer dollars since 2005 to defend accused murderers, robbers and thieves. On a given year, the average attorney will clear more than $40,000. The lion’s share goes to a dozen or so attorneys who handle a large number of cases or represent clients in more serious matters. Many attorneys will represent more than 100 low-income residents each year.

Related articles are in the indigent defense category index.

How I Convinced a Death-Row Murderer Not to Die

That's the title of Michael Finkel's article in the current issue of Esquire magazine.  LINK

Eight years ago, Christian Longo murdered his wife and three children. On the lam, he assumed the identity of the author, a man he'd never met. Now their long, twisted relationship culminates in a final, chilling bargain.

And:

When Christian Longo asked if I wanted to watch him die, I told him I did.

He asked me this over the phone, calling collect from inside his prison cell — the yellow cordless passed down the line, cell to cell, hands reaching through bars — on death row at the Oregon State Penitentiary. The reason he wanted to die, he said, was fairly simple. After half a decade spent sealed inside a white concrete box for more than twenty-one hours a day, with only other murderers as neighbors and with no hope of ever again seeing the outside world, he'd had enough. He was sick of prison and sick of himself, and he thought there might be a way to make his death meaningful. So he was dropping his appeals, he told me, and would likely be executed, by lethal injection, in a matter of months.

Why he was calling me — and why I wanted to watch him die — was not so simple. By the time I received this call, last February, as I was watching a Dora the Explorer video with my children early on a Saturday evening, I'd known Christian Longo for seven years. In all this time I'd never been able to make sense of him, to reconcile the bright and dryly funny person I knew (he calls the yellow cordless his "cell" phone), the guy I sometimes referred to as my friend, with the man who'd been convicted of the most unimaginable of crimes. In 2001 he had strangled his wife and two-year-old daughter inside their condominium on the Oregon coast, stuffed them in suitcases, and sunk them in a bay. Then he drove his four-year-old son and three-year-old daughter to a nearby bridge, tied rocks to their legs, and tossed them into frigid water, alive.

I was drawn into Longo's life through the most improbable of circumstances — after the murders, while on the lam in Mexico, he took on my identity, even though we'd never met. Starting from this bizarre connection, using charm and guile and a steady stoking of my journalist's natural curiosity (he was innocent, he was framed, he had proof, he would show me), he soon became deeply enmeshed in my own life. In the first year, we exchanged more than a thousand pages of handwritten letters. I wrote a book about him.

The Death Penalty Debate in New Hampshire - Editorials

"Does the death penalty deter?" is the Keene Sentinel editorial.  It appeared in Monday's edition.

A recent legislative effort in Concord indirectly raises the following question: Would Kimberly Cates of Mont Vernon be alive today if, following the murders of Dartmouth professors Half and Susanne Zantop in Hanover in 2001, the state’s death penalty law had been expanded to include killings committed during home invasions?

In fact, no such provision exists; New Hampshire’s relatively narrow capital punishment law doesn’t cover murders during a home raid. But what if it did? Would the assailants in Mont Vernon have behaved differently, knowing that they themselves might die for what they were about to do?

The question gets to deterrence, presumably the principal purpose of the death penalty. And the occasion for asking it now is an attempt, thwarted on House procedural rules last week, to enter a bill that would have added execution for future killings carried out during home invasions.

Delay in debating that proposed bill makes sense. A commission recently started work on a review of capital punishment in the state; it’s wise to see what that study turns up before changing the law in any way. The study group, which is to issue a report 12 months from now, was assembled after the Senate refused to back a death penalty repeal that passed the House under the threat of a gubernatorial veto.

And:

These are all good reasons to pull back on capital punishment — and ultimately to end it. We expect the death penalty study commission will pay those reasons close attention.

Today's Nashua Telegraph carries the editorial, "Political rhetoric reaches a new low."

Just when you thought partisan back-biting could not be more bitter, irrational or offensive, our politicians manage to take it to the next level. The most recent example comes from the The House Republican Alliance, which has politicized the horrific violence in Mont Vernon that left a mother dead and her daughter seriously injured.

The House Rules Committee on Dec. 17 voted to reject the late filing of the Kimberly Cates Capital Murder Law for the 2010 session, with the Democratic majority outvoting the four Republicans on the committee.

And:

As stated in a previous editorial, we share the outrage of the community and understand the motives behind the legislation proposed by Republican state Rep. Bill O’Brien.

But there is no urgency surrounding the bill, since any change in the death penalty could not be applied retroactively in the Mont Vernon case.

Meanwhile a special commission has been appointed to conduct a yearlong analysis of how the death penalty should be applied in New Hampshire, versus life without the possibility of parole. The panel, under the direction of retired Superior Court Chief Justice Walter Murphy, has until Dec. 1, 2010, to issue its report.

Democrats have taken the reasonable position that action on the death penalty should be put on hold until the commission completes its work, which could inform any legislative decision.

When state Rep. Jim Splaine, D-Portsmouth, told The Telegraph that any attempt to alter the death penalty law while the commission is doing its work is pure politics, we characterized that assessment as a bit harsh for lawmakers who were only trying to reflect the outrage of their community.

Apparently, Splaine knows his peers better than we do. The HRA statement is clearly designed to cast Democrats as disinterested in the Cates murder, with statements like, “House Democrats took a walk today on the Kimberly Cates law” and “Let the voters decide whether the House Democrat leaders who make up their party’s delegation on the Rules Committee should be congratulated for dodging this issue.”

The bill can still be considered in the next legislative session, when it will most likely be introduced in both the House and Senate. In the meantime, this attempt to influence voters by exploiting such tragedy is not likely to have the desired effect.

Earlier coverage from New Hampshire begins with this post.

Editorial Roundup

In addition to Florida, newspapers in Connecticut and Utah also have capital punishment editorials.

Today's Connecticut Law Tribune carries, "A Death Penalty Proposal."

Earlier this year, the state legislature voted to prospectively eliminate the death penalty. Republican Gov. M. Jodi Rell’s veto, however, coupled with a less-than-veto-proof majority in the Democratic-controlled legislature, killed the bill for at least until the upcoming session, which begins in February.

In this 2009 iteration, the legislative and executive branches squared off on a do-or-not-do debate. A better approach might have been to retain the penalty, but only under very restricted conditions and with some restraint on the appellate process.

And:

One proposal would be to change the conviction standard in capital cases so that the prosecution would bear a heavy burden of showing how combinations of eyewitness accounts, confessions, and forensic evidence could leave no doubt that a given individual had committed a crime for which execution was an allowable punishment. (Various defenses, such as “not guilty by reason of insanity” could still be asserted even in these situations.) Failing absolute certainty, sentencing would be limited to a maximum of life without the possibility of release.

Another condition: Any person currently or hereafter accused would have a right, unlimited by the passage of time, to introduce DNA or other forensic evidence purporting to exonerate him or her from guilt if such evidence was either not available at the time of trial or, if available, was not offered.

I've written before about former Oklahoma Governor Frank Keating's recommendation for a "moral certainty standard" in death penalty cases.  Keating articulated this standard at the Pew Forum's 2002 conference "Religion and the Death Penalty: A Call for Reckoning."  His remarks are here.

Today's Salt Lake Tribune has the editorial, "Denial of death: Time to end capital punishment."

In the 33 years since the U.S. Supreme Court reinstated the death penalty, and convicted Utah killer Gary Gilmore's execution became the first of 1,188 to follow, the legal, moral and practical arguments against capital punishment have evolved from sound to unassailable.

And one by one, the states are having second thoughts. So far, 15 have dropped the death penalty and 10 others have looked at doing so. The realization that our system of capital punishment is cripplingly fallible and inherently unfair has been spurred by a growing number of cases in which new evidence based on DNA testing or other advances in forensic science has proven that police, prosecutors and the jury got it wrong.

Indeed, the Death Penalty Information Center puts at 129 the number of inmates since Gilmore who have been released from death row based on new evidence, including nine this year who were freed after serving a combined 121 years before they were exonerated.

The release from prison last week of Donald E. Gates, who served 27 years of a life sentence for a murder that DNA evidence proved another man had commited, underscores the error or caprice that, in capital murder cases, can claim another innocent victim.

Before Gilmore was shot by a firing squad of anonymous riflemen on Jan. 17, 1977, ending a decade-long moratorium on the death penalty imposed by the Supreme Court, capital punishment had already been shown to be unevenly applied.

And:

The high-profile impact of exonerations is not the only factor in the current seven-year decline in cases in which convicted criminals are sent to death row. With state budgets crashing, the sheer cost of applying the death penalty compared to life in prison is another.

Our system of capital punishment, which 48 of 50 European nations have outlawed, is broken and cannot be fixed. Life in prison without parole, arguably worse than death, should be the limit.

Related posts are in the abolition and editorial indexes.

Commentary From Florida

"Wrongful ways: Innocence commissions safeguard society," is the title of a Sunday Tallahassee Democrat editorial.  

Last year, the Florida Legislature passed a law that automatically grants former inmates who have been found innocent $50,000 for each year they were wrongfully incarcerated, so long as they were never convicted of a prior felony offense. It's the state's automatic apology, of sorts, for when the judicial system has gravely erred.

In recent years, at least 11 innocent Florida citizens have been wrongfully convicted and imprisoned. Nationwide, some 248 inmates have been exonerated by DNA evidence that showed their innocence.

Last week in Bartow, James Bain joined the list of the newly liberated, wrongfully punished, and he appears to be entitled to $1.75 million from the state of Florida as a result.

So much? Yes. He was released after 35 years for a crime it's now proven through DNA testing that he didn't commit. Such testing didn't exist in 1974, but his conviction was based primarily on the eyewitness identification of a 9-year-old Polk County boy. Today, it's known that witness misidentification is the leading cause of wrongful convictions. According to the Innocence Project of Florida Inc., it has contributed to almost 80 percent of those 248 overturned by DNA testing.

Florida Supreme Court Chief Justice Peggy Quince was formally asked this month to set into motion a system that would identify and understand in an orderly and ongoing way what goes wrong with the criminal justice process in such cases, what patterns keep repeating, what flaws in the system could and must be remedied.

Former American Bar Association president and Florida State University president emeritus Sandy D'Alemberte is leading the way. This month, he petitioned the state's high court to adopt a rule establishing the Florida Actual Innocence Commission. Such a panel would be consistent with the top recommendation in the ABA Florida Death Penalty Assessment Team Report of 2006, but it would apply to all wrongful-conviction cases, not simply to death penalty cases.

And:

Such a commission would give greater integrity to a system that may not err often, but when it does, does so in a stunning and shameful way.Creation of this proposed Florida Actual Innocence Commission is one way to modernize and enhance the integrity of our system of justice. We urge Justice Quince to grant this petition.

Earlier coverage of the D'Alemberte petition is here.

Also from Florida, the Palm Beach Post carries Randy Schultz' column, "Kill the death penalty."  He's the Post's editorial page editor.

Even if Florida gets smarter on crime, will Florida get smart enough to abolish the death penalty?

Business groups have joined the departments of Corrections, Juvenile Justice and Children and Families in calling for major changes in how Florida administers criminal justice. They want more rehabilitation behind bars and more support for newly released inmates. They want diversion programs for addicts who commit crimes because of their dependency. They want prison reserved for the dangerous, not the annoying.

All of it makes sense, so it may be lost on a Legislature that slurps up federal stimulus money while denouncing the federal stimulus program. Landmark reform, too, would mean touching the untouchable issue of capital punishment.

And:

Every objective study shows that life imprisonment costs much less than sentencing someone to death, because of the costs for lawyers who handle specialized, complex death penalty appeals. To Jeb Bush, the answer was to limit the number of years during which an inmate could appeal. The Florida Supreme Court shot him down. Good thing. Under Mr. Bush's 10-year limit, Florida would have killed people before they could be exonerated.

It's one thing to say that Danny Rolling, sadistic slayer of five college students in the Gainesville area 19 years ago, should be executed. There was no question of guilt, and no messy questions of racial fairness. As the Death Penalty Information Center notes, though, 80 percent of victims in cases where the killer was executed were white. Nationally, only 50 percent of murder victims are white.

Deterrence? Police chiefs don't consider the death penalty a deterrent. And the South, which has the highest rate of execution, also has the highest murder rate.

Politically, though, capital punishment retains its visceral, eye-for-an-eye appeal. Thirty-five states still have it on the books, down from 38 at the start of this decade. It's hard to be smart about something that many people can't think clearly about.

Additional Coverge of DPIC Report

The Death Penalty Information Center report, “The Death Penalty in 2009: Year End Report," is in Adobe .pdf format.

The Los Angeles Times reports"California's death row grows as death sentences decline nationwide," written by Carol Williams and Jack Leonard.

Los Angeles County sent more people to death row this year than Texas, Florida or any other state in the nation, condemning 13 convicted murderers -- the highest number in a decade, according to a Times review of justice statistics.

The increase comes as a national report projects that the number of death sentences issued across the country this year will reach its lowest level since capital punishment was reinstated in 1976.

Los Angeles County helped California buck that trend, boosting the state's death sentences from 20 last year to 29 so far this year, more than a quarter of the nationwide total of 106, according to a report released Friday by the nonprofit Death Penalty Information Center. The center attributed the national decline to deepening concerns about the costs of capital punishment and the possibility of wrongful convictions.

California's increase occurred despite legal challenges that have left the state's lethal injection chamber idle for the last four years. Any resumption of executions is still at least a year off, experts said. The 2009 capital sentences have helped push the state's condemned population to 697, the nation's largest by far.

"It really goes against all of the trends we've seen across the country, where death sentences are becoming less and less common and are imposed more selectively," said Natasha Minsker, death penalty policy director for the American Civil Liberties Union of Northern California, which opposes capital punishment.

California's capital punishment system has drawn widespread criticism as the most cost-inefficient in the country, having executed only 13 people in more than 30 years.

David Von Drehle writes, "Dwindling Death Penalty: Victim of the Recession?" for Time.

The death penalty used to be a big deal, important enough to figure prominently in the 1988 presidential debates. Four years later, in 1992, White House aspirant Bill Clinton, then governor of Arkansas, rushed home from the campaign trail to preside over an execution — because that's how politicians proved their mettle in those days.

This year's annual report of the Death Penalty Information Center (DPIC) shows how dramatically the issue has faded in recent years. Fewer death sentences were imposed in 2009 in the U.S. than in any year since capital punishment was reinstated in 1976. In the 1980s and '90s, states consistently sent more than 300 prisoners per year to death row. The total this year, according to DPIC, will be 106. This continues a steady trend going back most of the decade, and it extends even to Texas, the leading death-penalty state, where juries reliably sent 30 or more convicted killers per year to death row. That number fell to single digits this year: nine. (See why Texas may be changing its mind about the death penalty.)

Many factors play a part in the fading importance of capital punishment. The drop in the number of death sentences reflects a drop in the murder rate. Many states have adopted life-without-parole terms as alternative sentencing, and both prosecutors and juries have embraced the option. Also, DPIC executive director Richard Dieter theorizes that in tough economic times, states are reluctant to take on the high costs of capital cases — the special sentencing hearings, the mandatory reviews and the nearly inevitable years of appeals. The DPIC report cites the example of California, where death sentences were up this year but none of the state's 690 death-row inmates were executed. The cash-strapped state is spending $137 million per year, according to one estimate, on its stymied death-penalty system and is making plans to build a special facility to house its enormous death-row population, at a cost of some $400 million.

And:

And so it goes with the once volatile issue: urgently important to fewer and fewer people, yet less and less compelling to the country at large, the death penalty keeps sputtering along, dwindling as the years go by.

"Why is use of the death penalty going down?" is the title of the Christian Science Monitor report by Mark Guarino.

But if use of the death penalty is declining overall, why is that?

One reason: Some state prosecutors are growing more hesitant to seek a death sentence in cases that might later be upended because of DNA evidence. Since DNA entered the courtroom in 1989, 248 criminal convictions have been overturned, 17 of which involved inmates on death row, according to the Innocence Project of Florida.

“What DNA has provided [to the debate] is a recognition that the public is very concerned that the system is accurate,” says Lance Lindsey, executive director of Death Penalty Focus, an anti-death penalty advocacy group in San Francisco. “DNA symbolizes that there’s a desire by the public that we get these sentences right.”

The latest DNA-related case to make national headlines came Thursday, when DNA evidence cleared James Bain, a Florida man, of rape charges. He had been sent to prison for life in 1974. His 35 years behind bars was the most time served by anyone who has been exonerated by DNA in the US.

Some states have struggled with unwanted media attention because of DNA findings. But beyond that, the states have found cases involving DNA to be costly.

And:

Here is one DNA-related cost that some states handle: Some states have passed laws that grant money to former inmates who were found innocent. In Florida, the payment is $50,000 for each year served. That means Bain is set to receive $1.75 million.

Seth Miller, executive director of the Innocence Project of Florida, which worked to secure Bain’s release, says these cases need to be viewed “as educational experiences for folks who are prosecuting crimes.” It might change how they consider, for example, jailhouse informants and eyewitness testimony. He adds, “We have to use these opportunities to learn why wrongful convictions happen and how to prevent them in the future.”

The Sunday New York Times Week in Review section carried, "Prime Number."

106: The number of death sentences projected to be handed down by judges and juries in 2009, according to the Death Penalty Information Center. That number is the lowest since capital punishment was reinstated in 1976. Death sentences reached a high of 328 in 1994. Over the last decade, the number has fallen by 63 percent. The drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year.

Earlier coverage links to national, international, Texas and Ohio coverage.

Proportionality Questions in Tennessee

"The uneven hand of justice in TN murders," is the title of John Seigenthaler's report in the Tennessean.  Here's the beginning of this must-read:

There was no obvious link between the two recent national headlines.

One said: "Woman who killed preacher husband gets custody of their three children."

The other read: "Woman on death row loses her last appeal."

There are many striking factual similarities — and one stark difference — in the tragic stories of Mary Winkler and Gaile Owens, two Tennessee women who killed their abusive husbands 20 years apart.

Court documents in the separate cases recite the similarities:

• Both women, raised as fundamentalist Christians, suffered severe physical, sexual and emotional abuse from the spouses they killed.

• Both had small children — Winkler three daughters and Owens two sons — all younger than 12 at the time of the murders.

• Both of them were examined — some 20 years apart — by the same psychologist, Dr. Lynne Zager of Memphis, who said that both suffered from battered woman's syndrome — a condition that courts have recognized as "a female who is the victim of consistent, severe domestic violence."

• Both had concealed from relatives and close friends the suffering they endured at the hands of their husbands; both minimized the abuse when first questioned by police.

• Both were in financially troubled marriages and constantly were blamed by their husbands for being "spendthrift wives." Winkler had kited checks and argued with her husband about money the night before she killed him. Owens had stolen money from her employer, a doctor.

• Both women confessed when questioned by police, and both told the officers they blamed themselves for problems in their marriages.

• In both cases, the spousal abuse included lurid sexual details. In Owens' case, the sexual encounters were more violent and also involved her husband's extramarital affairs.

The court documents also recite the stark difference in the two killings:

Mary Freeman Winkler, 36, indicted on charges of first-degree murder and convicted of voluntary manslaughter, served 67 days in a mental health facility after conviction and is now free. She has custody of her children and lives in McMinnville.

Gaile Kirksey Owens, 57, is due to be executed by lethal injection on death row at Tennessee State Prison. The state Supreme Court will soon set the date. Owens, who works as a clerk in the prison, would be the first woman executed by the state since Eve Martin, found guilty of murder, was hanged in 1820.

The dramatic difference in the sentences received by Winkler and Owens relates directly to the manner in which the two cases were tried, how their separate teams of lawyers handled their cases and how two different judges dealt with their "battered woman" defenses.

Kansas Legislature to Consider Repeal in 2010

"Legislature to consider end to death penalty," is the title of Ron Sylvester's report for the Wichita Eagle, via the Kansas City Star.

Kansas will consider abolishing the death penalty next year as death sentences are declining across the United States.

Fewer people were sentenced to death this year than any other year since 1976, according to a report released Friday by the Death Penalty Information Center.

The report cites 106 new death sentences handed down in 2009, compared to 111 in 2008. Both are down significantly from a decade ago, when 284 death sentences were given out.

Sen. Tim Owens, R-Overland Park, has scheduled four days of hearings beginning Jan. 19 on a new bill that would eliminate the death penalty in Kansas.

A Kansas Judicial Council advisory committee of lawmakers, judges, prosecutors and defense lawyers helped rewrite a bill sponsored last year by Sen. Carolyn McGinn, R-Sedgwick.

And:

In Kansas, seeking the death penalty costs four times more in legal fees than not pursuing it, according to a report released earlier this month. Figures were compiled by the state's indigent defense fund.

Imprisoning an inmate facing a death sentence also costs more, according to the Kansas Department of Corrections. It takes an additional $1,000 a year to keep an inmate in the isolation cell blocks required for death penalty inmates rather than in the general prison population.

Those figKansas Department of Correctionsures were part of a report from the Judicial Council's Death Penalty Advisory Committee, which rewrote the bill to abolish the state's death penalty. The Judicial Council analyzes legal issues for the state Legislature and Supreme Court.

Two Wichita-area cases demonstrate the discrepancy.

Romaine Douglas was convicted of killing two people in 1999. He received a life prison sentence with no chance of parole for 100 years.

Gavin Scott was convicted of killing two people in 1996. He received a death sentence, which was overturned on appeal. He is set to face another capital punishment sentencing before a jury in April.

Neither one was the most expensive — or least expensive — case of its kind, according to the Judicial Council report.

If Douglas lives to be 79 — the average life expectancy for an American male — the state will have spent about $243,884 to convict him, deal with appeals and keep him in prison.

So far, the state has spent $750,074 to pursue the death penalty against Scott.

An AP version of the story, "Continuation of death penalty scheduled for debate in Kansas Legislature," is also via the Kansas City Star website.

Kansas Attorney General Steve Six has called the death sentence “just punishment” in some cases and expressed opposition to abolishing it.

However, budget problems have more states talking about whether the death penalty is worth the expense.

Seeking the death penalty in Kansas costs four times more in legal fees than not pursuing it, according to a recent report that used figures from the state’s indigent defense fund.

The state Judicial Council’s Death Penalty Advisory Committee said in a report issued earlier this month that it takes an additional $1,000 a year to house a death-row inmate in required isolation compared with keeping him in the general prison population.

The council, which analyzes legal issues for the state Legislature and Supreme Court, rewrote the bill to abolish the death penalty in Kansas.

Sylvester also wrote a companion article for the Eagle, "Death penalty cases take time and scrutiny."

Larry Williams expected to wait 10 years to see the death sentence carried out for his daughter's killer. Now, 13 years later, Williams said he may have to wait another decade before Gary Kleypas exhausts his appeals.

Lawyers understand the need for such scrutiny in death penalty cases, but others like Williams wonder whether the execution chamber in Lansing will ever be used.

"Oh, it's been frustrating for me in more ways than one, obviously losing your daughter but then the long court case," Williams said.

The length of time it takes to resolve a capital case is one reason the death penalty costs about 16 times more than life in prison, according to a 2003 Kansas study. States in which executions have been carried out estimate even higher costs for death sentences.

Kleypas, found guilty of raping and killing 20-year-old Carrie Williams in 1996, was the first person condemned to die in Kansas in more than 30 years. Since the state reinstated the death penalty in 1994, no one has been executed.

New Mexico brought back capital punishment in 1979. By the time New Mexico repealed the death penalty in March, it had carried out one execution.

"And he voluntarily gave up his appeal or he would still be on death row," said Viki Elkey, director of the New Mexico Coalition to Repeal the Death Penalty.

As Kansas' first capital punishment case since the death penalty was reinstated, Kleypas' case has taken more than a decade because of legal errors and questions about how people here should be put to death.

Earlier last week, Sylvester wrote the article, "Furloughs may delay Mireles trial," about cost factors in a death penalty case waiting to go to trial.

The judge presiding over the capital murder case of Israel Mireles wondered whether the state's money issues could force postponement of the trial. Butler County District Judge David Ricke said during a hearing Tuesday that Mireles' trial in the killing of Emily Sander is scheduled to start Feb. 8 - a week before state-mandated furloughs of courthouse employees.

Furloughs are currently scheduled for nonjudicial employees around the state unless legislators restore $3 million in money cut from the judicial branch. That would mean no bailiffs to aid jurors and no court reporter to make a record of testimony and evidence.

And:

Kansas Attorney General Steve Six told the judge that trial preparations with state law enforcement officers as witnesses would have to be repeated if the trial was continued to another date.

"It could end up costing the state more," said Six, who is helping prosecute the case.

Ricke's best estimate about moving the trial would be before the second round of furloughs in March.

"We could try to do it between furloughs," the judge said. But trying to move the trial by weeks could turn into months, depending on the already busy schedules of the attorneys.

Melanie Freeman-Johnson, Mireles' attorney, and Six's office have other death penalty cases waiting around the state. Six's office has at least six other death penalty cases on its docket, with proceedings already scheduled from January through June.

Earlier coverage from Kansas begins with this post.

The Latest on the Troy Davis Case

"Troy Davis case raising novel legal issues," is the title of Bill Rankin's Atlanta Journal-Constitution report.

Condemned inmate Troy Anthony Davis filed the legal equivalent of a Hail Mary when he petitioned the U.S. Supreme Court for a hearing on his innocence claims.

But in August, for the first time in nearly half a century, the nation’s highest court took a case filed directly to its docket that had not come up from a lower court on appeal. Once again, Davis, who sits on death row for killing an off-duty Savannah police officer in 1989, was spared execution. And since the reprieve, Davis’ lawyers say a new witness has come forward on his behalf.

“It was just stunning,” said U.S. Supreme Court historian Lucas A. “Scot” Powe, a professor of law and government at the University of Texas at Austin. “But I understand why the court did it. It was Davis’ last chance. He had exhausted all other possible appeals.”

The high court ordered a judge in Savannah to hold a hearing, receive testimony and make findings as to whether new evidence clearly establishes Davis’ innocence.

This assignment was given to U.S. District Judge William T. Moore Jr., who was appointed by President Bill Clinton in 1994. Davis’ legal team recently provided Moore with a new affidavit from a Savannah woman who said a key prosecution witness, Sylvester “Redd” Coles, told her he was the one who actually shot and killed Officer Mark Allen MacPhail.

Davis’ supporters, led by Amnesty International, have mounted a global campaign on his behalf. Former President Jimmy Carter and Pope Benedict XVI have said Davis should not be executed. Before the Supreme Court made its extraordinary decision, 27 former judges and prosecutors filed a motion on Davis’ behalf and asked the high court to intervene.

In court filings, state Attorney General’s Office lawyers reminded Moore that five separate courts and Georgia’s parole board have rejected Davis’ claims. They predicted that Davis will not be able to prove his innocence at the as-yet unscheduled hearing.

In an order he issued soon after getting the case, Moore noted that the U.S. Supreme Court has never found that the Constitution recognizes a “free-standing innocence claim” such as the one raised by Davis. For this reason, the judge requested the parties to suggest what burden of proof should guide his decision.

Jason Ewart, a member of Davis’ legal team, said Davis is eager to finally present his recantation testimony in court for the first time. But the lawyer acknowledged they “are working on a blank slate. We’re really now talking about what the law should be here.”

And:

The most recent person to come forward is Quiana Glover, a Savannah woman who said she was at a friend’s house in June when Coles told her he killed MacPhail, according to her affidavit. Glover said she had known Coles since she was a young girl.

Earlier coverage begins with this post; the Davis case is noted, here.

Exonerations in 2009

The Innocence Network, the national group of Innocence Projects working cooperatively, has issued, "Innocence Network Exonerations 2009."

The work of Innocence Network member organizations led to the exoneration of 27 people 2009. Together, they served 421 years in prison for crimes they didn't commit. The report below provides details on each of their cases — flip through the pages below or download the full report here (PDF).

Related posts are in the exoneration category index.

Juvenile Justice Roundup

First, there is word that the U.S. Senate Judiciary Committee completed markup of S. 678 yesterday, legislation to renew of the Juvenile Justice Delinquency and Prevention Act of 1974.  Main Justice posts, "Senate Panel Approves Juvenile Justice Bill Renewal.

The Senate Judiciary Committee endorsed legislation today that would reauthorize certain juvenile delinquency program funds.

The Juvenile Justice and Delinquency Prevention Reauthorization Act of 2009 would renew the program funding provisions in the Juvenile Justice and Delinquency Prevention Act of 1974 until fiscal year 2014. The 1974 legislation was due for reauthorization three years ago. The program authorizes funding to states with special practices for handling youth in their justice systems.

The panel voted 12-7 on the 2009 bill this morning at its markup. Sen. Dianne Feinstein (Calif.) was the only Democrat to vote against the bill, agreeing with Republican concerns over the projected $4 billion price tag for the legislation.

Feinstein, who also sits on the Senate Appropriations Committee, said the bill calls for a “huge authorization” that would be hard to justify with the $1.7 trillion federal deficit.

“I would be very hard pressed to appropriate these sums of money for this purpose at this particular point in time,” Feinstein said at the panel markup.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who is a sponsor of the bill, cited a New York Times editorial from yesterday that called on the Senate to move on the bill. He first introduced the reauthorization legislation in 2008.

“The Senate Judiciary Committee reported this important bipartisan legislation last year,” Leahy said in a statement. “We should ensure that it passes into law in this Congress.”

More information on the bill is here, via THOMAS; the text, here.  Earlier coverage of the legislation is here.  A hat tip to the Crime Report.  The ACLU issued a news release, "Senate Judiciary Committee Passes Landmark Juvenile Justice Legislation," following the Judiciary Committee's action.

Also, the Florida Times-Union reports, "Florida Supreme Court justices unshackle juvenile defendants."  It's written by Dana Treen.

The Florida Supreme Court has approved a dramatic change in the use of shackles, handcuffs and other restraints on juveniles in the state’s courtrooms.

The justices Thursday approved a new court rule that prohibits restraints unless a judge determines they are necessary for one of three reasons: preventing physical harm to the child or other people, a defendant’s history of disruptive courtroom behavior or a strong belief there’s a substantial risk of flight.

Since the early 1980s the shackling of juveniles has evolved as a security measure in Florida courtrooms, said Rob Mason  of the Public Defender’s Office in Jacksonville. Mason said juveniles brought from detention centers to appear before a judge are shackled and remain so in the courtroom.

“It’s really a pathetic sight when they bring them in,” said Mason, former chairman of The Florida Bar’s Juvenile Court Rules Committee that recommended the change.

Mason said the restraints make it difficult for the young prisoners to raise their hands when they swear to tell the truth. He also said the state’s juvenile justice system is supposed to be set up differently than adult court. He advocated for the change before the justices in June.

“It’s a monumental victory for Florida’s children,” Mason said. “A juvenile is supposed to be different.”

The aim of juvenile courts is to provide a safe environment and focus on rehabilitation, he said.
He said experts on juvenile development suggest shackling can cause emotional harm, may cause the juvenile to feel as if they are somehow dangerous and increase resentment of authority.

For the past couple of years, courts in Miami-Dade County have taken the shackles off juveniles with little negative effect, Mason said.

The new rule takes effect statewide in January.

Related posts are in the juvenile index.

EU President Speaks Out on America's Capital Punishment

The Presidency rotates among European Union member countries.  It's currently held by Veronika Bard-Bringéus of Sweden.  The official statement,published today, is, "EU statement in the OSCE on the Death Penalty in the USA."

It is with deep regret that the EU has learned that an execution is scheduled to be carried out in the State of Louisiana on 7 January 2010. The execution of Mr. Gerald Bordelon would break a de facto moratorium in the State of Louisiana, where the last execution took place in May 2002.

The European Union reiterates its longstanding position on the use of death penalty. We oppose the use of capital punishment in all cases and under all circumstances and have consistently called for its universal abolition. The EU recalls the resolution adopted by the United Nations General Assembly on 18 December 2008 that reaffirms its resolution adopted in December 2007, which expressly calls upon all states that still maintain the death penalty to establish a moratorium as a first step towards abolishing the death penalty.

The EU believes that the abolition of the death penalty is essential to protect human dignity, and to the progressive development of human rights. The EU considers this punishment cruel and inhuman. It has not been found to act as a deterrent, and while we are aware of the suffering of the victims of violent crime and their families, we recall that any miscarriage of justice - which is inevitable in any legal system - is irreversible. Consequently, the death penalty is abolished throughout the European Union.

Taking account of these factors, the EU calls upon the appropriate authorities in the State of Louisiana to continue the moratorium on executions and urges them to grant Mr. Gerald Bordelon relief from the death penalty.

The EU trusts that the government of the United States of America will ensure that the appropriate authorities in the State of Louisiana will be informed of this statement.

Related posts are in the international and international law indexes.

Abolishing the Death Penalty

That's the title of a post at the Washington Post's On Faith blog written by Rev. Geoffrey Black, Rev. Linda Jaramillo, and Rabbi David Saperstein.  LINK

Many December holidays - Christmas, Hanukkah, and Kwanzaa alike - involve the lighting of candles. This symbolizes the spirit of peace, hope, and new beginnings, illuminating the winter days and warming the soul.

The festive lights also recall for us the time, 20 years ago, when the National Coalition to Abolish the Death Penalty (NCADP) and the National Interreligious Task Force on Criminal Justice (NITFCJ) launched a year-long campaign called "Lighting the Torch of Conscience." The purpose of the campaign, later joined by Amnesty International USA, was to mobilize faith communities and encourage local involvement in the collective effort to end capital punishment.

"Lighting the Torch of Conscience" began with a meeting at the Martin Luther King, Jr. Center for Nonviolent Social Change in Atlanta. Broad and diverse participants, including Presbyterians, Jews, Muslims, Catholics, Southern Baptists, Quakers, Mennonites, Unitarians, and Methodists, signed a statement following the meeting, which read in part, "As we light this torch of conscience, we commit ourselves and our faith communities to do everything within our power to abolish the death penalty. We will use our moral leadership to change attitudes through education and engagement in faithful witness, service, and advocacy toward that end."

Throughout 1989, participants carried the abolition message to churches, universities, schools, and other venues in 36 states. The campaign closed on May 18, 1990 with a march from the state prison in Starke, Fla., back to Atlanta's King Center. Since then, step by step, progress has been made toward ending the death penalty. In 2002, the U.S. Supreme Court outlawed executions for people with mental retardation, and in 2005 it ruled death sentences for juveniles unconstitutional.

And:

Even the American Law Institute (ALI), a leading independent organization of attorneys, judges and law professors instrumental in shaping existing and emerging U.S. law for more than 50 years, has now formally acknowledged that there is no model death penalty system, indicating that capital punishment is broken beyond repair.

Current faith-based efforts to end capital punishment launched this year, such as the Catholic Mobilizing Network to End the Death Penalty which collaborates with existing death penalty abolition groups and the U.S. Conference of Catholic Bishops to educate and activate their congregants. People of faith can do no less than to reassert the principle that capital punishment is morally wrong, perpetuating the cycle of violence when it kills people who kill. As noted in the Lighting the Torch of Conscience statement 20 years ago:

". . . Each human is created in the image of God, and thus we believe in the inherent worth of human life and the inalienable dignity of the human estate. The value of human life is not contingent on the moral rectitude of human beings or human institutions."

During this holiday season and in the months ahead, we encourage people of faith nationwide to put belief into action by embracing the commitment and determination of the "Lighting the Torch of Conscience" campaigners. By joining forces with abolitionists working to rid our country of the barbaric practice of capital punishment, we can together seek out humane, alternative punishments and more effective crime prevention programs that will keep our neighborhoods safe. As the "Lighting the Torch of Conscience" statement concludes, "The religious community's opposition to capital punishment has been on record for years. Now is the time for it to be on fire."

Related posts are in the religion category index.

In New Hampshire

Tom Fahey writes, "House blocks introduction of home invasion bill," for the Union Leader.

Leaders of the New Hampshire House yesterday blocked the late introduction of a bill that would punish home invasion murders with the death penalty.

In rejecting the bill's late arrival, Democratic lawmakers said an identical proposal is moving ahead in the Senate, at the same time a special commission studies all aspects of the death penalty.

Rep. William O'Brien, R-Mont Vernon, urged the House Rules Committee to allow his bill to move forward even though he missed a deadline for new bills. He said he was prompted by the October home invasion in which four teens allegedly hacked Kimberly Cates to death in her bed with a machete, and left her daughter for dead. The murder occurred in Mont Vernon eight days after the House deadline.

O'Brien is a co-sponsor of a nearly identical bill in the Senate, which is sponsored by Sen. Sheila Roberge, R-Bedford. If the bill becomes law, it will not affect the four teenagers arrested in the Cates murder, or their accused accomplice.

While O'Brien said his voters are calling for action, Democratic deputy speaker Linda Foster, also from Mont Vernon, said constituents are telling her they don't want the Legislature to "jump the gun" on the issue. She said the Senate bill assures the issue will be debated.

"There will be a forum for this in the Senate that will get lots of press, lots of play... The people will have their opportunity to speak," she said.

The vote on the committee was 6-4, along party lines, with Democrats denying O'Brien's request. House rules restrict late bills to those that address "urgent or compelling needs or events unforeseen prior to the filing deadline." O'Brien said after the vote, "we'll still get this through the Senate. But the House Democrats took a walk on this today."

The AP report is, "N.H. House committee blocks death penalty bill," by Debra Love, via SeaCoastOnline.

House rules allow members to ask for bills to be introduced late based on an urgent or compelling need or due to unforeseen events.

Five young men have been charged in the attack. Indictments in the case are pending.

Cates, 42, was killed Oct. 4. Her 11-year-old daughter was attacked but survived.

O'Brien argues people have a right to go to their homes and be safe. He said his bill was needed to send a message that society will protect the sanctity of the home and that home invaders will be punished harshly.

Even if the measure passed, the stiffer penalty could not be applied in the Cates' case.

Under the measure, prosecutors would have to prove home invaders entered with the specific intent to kill the occupants of the house for the crime to be punishable by death.

New Hampshire's death penalty law has more restrictions than any state that allows capital punishment. New Hampshire allows capital punishment for six types of crimes, including killing a police officer.

Last year, a man was sentenced to die for killing a Manchester police officer — the state's first death sentence in 50 years. The state's last execution took place in 1939.

Earlier coverage from New Hampshire is here.

Ohio News Coverage of the DPIC Report

Capital punishment issues were a major news topic in Ohio this year with the botched execution attempt of Romell Brown and the first use of a single-drug lethal injection.  Ohio newspapers, as with Texas papers, have given the DPIC report serious attention.  Both the Columbus Dispatch and Middletown Journal have major articles with charts and graphs.

Alan Johnson writes, "U.S. death sentences fall again; Ohio has 1," for the Columbus Dispatch.

For the seventh straight year, the number of new death sentences in the U.S. dropped in 2009, reaching the lowest point since capital punishment was reinstated in 1976, according to a national report.

Just one Ohioan, Hersie Wesson, 52, of Summit County, was sentenced to death this year. Wesson killed an 81-year-old man and injured his wife during a robbery.

It was Ohio's lowest number since a revised death-penalty law took effect in 1981; the three death sentences in 1982 and 2008 marked the previous low.

Although death sentences overall were down, Ohio's five executions in 2009 still ranked third in the nation behind Texas (24) and Alabama (6), according to the year-end report by the Death Penalty Information Center in Washington, D.C., a nonpartisan clearinghouse.

Overall, the number of executions this year nationally, 52, was up compared with 2008, when there was an unofficial moratorium because of a prolonged court battle over lethal injection. However, there were about half as many executions this year as there were in 1999.

Richard Dieter, executive director of the center, said Ohio is an anomaly because death sentences are down but executions remain high. However, he said that may be because Ohio is working on a backlog of Death Row cases that built up over two decades.

Ohio's Death Row population stands at 167, compared with 205 as recently as 2004.

"It stands out because 90 percent of the executions in the nation are in the South, except Ohio.With the new one-drug method, Ohio may have more executions next year," Dieter said.

Ohio's last execution was Kenneth Biros of Trumbull County on Dec. 8. Biros was the first person in the U.S. to be put to death with a single, powerful dose of an anesthetic, as opposed to the three-drug combination used previously in Ohio and still used by 35 other states.

The next execution is scheduled for Jan. 7 when Vernon Smith of Toledo is to die for shooting a store owner during a 1993 robbery.

The Middletown Journal has, "Fewest death penalty sentences issued in decades," written by Tom Beyerlein.

The one new death sentence in Ohio this year compares with 25 in 1977, 21 in 1985 and 17 each in 1983, 1995 and 1996, according to statistics compiled by the center. Nationwide, there were 106 new death sentences in 2009 as of Wednesday, down from 284 in 1999.

Ohio carried out five executions this year, more than any state except Texas, with 24, and Alabama, with six. Ohio would have trailed only Texas had not the executions of Cleveland murderer Romell Broom and two others been postponed after the aborted attempt to give Broom a lethal injection on Sept. 14.

The Ohio Supreme Court has set six execution dates so far for 2010, one per month from January to June. “(Ohio) won’t surpass Texas, but (it) will be one of the more prominent states for executions” in the coming year, said the center’s executive director, Richard Dieter.

Eleven of the 35 states that have a death penalty carried out 52 executions this year. That’s up from 2008, partly due to a moratorium from September 2007 to May 2008 while the Supreme Court considered the constitutionality of the lethal injection method.

“With the declining number of death sentences, the number of executions will eventually come down, but there’s still a backlog” of cases running out of appeals, Dieter said.

New sentences have declined, he said, because of DNA exonerations of capital murder convicts and the option in some states, including Ohio, of sentencing murderers to life in prison without parole.

“I think (the life without parole option) is a very significant factor in what’s changed the landscape in states like Ohio,” said Ohio Attorney General Richard Cordray. Since 2005, prosecutors have been able to seek life without parole without also seeking the death penalty, he noted.

Earlier coverage of the DPIC report, "The Death Penalty in 2009: Year End Report," begins with the preceding post.

International News Coverage of the DPIC Report

The Guardian reports, "US imposes fewer death penalties as DNA evidence see more people cleared," is by Chris McGreal in Washington.

The number of death sentences imposed by US courts has fallen because of a growing number of exonerations through DNA testing, according to a report by a prominent anti-death penalty group.

The Death Penalty Information Centre in Washington says judges and juries imposed fewer death sentences over the past 12 months than at any time since the restoration of execution in 1976.

This year 106 death sentences have been passed, the seventh straight year the number has fallen and sharply down on the high of 328 in 1994. Richard Dieter, DPIC's director and author of the report, said the fall reflected growing concern over the reliability of convictions. "The principal reason is the innocence cases, the exonerations, people getting out because of DNA testing.

"People read about these exonerations, people walking out of prison 20 years after the crime. Jurors are convicting but giving life sentences not the death penalty."

DPIC said nine condemned men were exonerated in 2009, the second highest number of exonerations since the death penalty was reinstated.

The Innocence Project says that overall 245 convicts have subsequently been cleared by DNA evidence across the US. Yesterday a man was released after 35 years in prison for raping a child. James Bain was sentenced to life for kidnapping and raping a nine-year-old boy who identified him from a photograph. A judge ordered the 54-year-old to be freed after DNA testing cleared him of the crime.

Dieter said the decline in death sentences was particularly pronounced in the two states that carry out the most executions, Texas and Virginia. A decade ago Texas was imposing 34 death sentences a year. This year it imposed nine. In Virginia the number fell to one this year from an average of six a year in the 1990s.

AFP files, "US executions down by half over past decade: report," by Virginie Montet, also from Washington.

"This entire decade has been marked by a declining use of the death penalty," said Richard Dieter, author of the report and DPIC's executive director.

"In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping," Dieter said.

That question has gained increasing significance during the economic downturn in the United States, with many states weighing growing budget deficits against the cost of executing convicts.

This year New Mexico became the 15th state to abolish the death penalty and legislatures in Connecticut, Maryland, Colorado and Montana have all considered doing the same.

New Mexico Governor Bill Richardson cited the cost of execution, but also the chance of error in supporting the death penalty ban in his state.

"I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime," he said in a March statement.

"If the state is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.

"But the reality is the system is not perfect -- far from it. The system is inherently defective. DNA testing has proven that. Innocent people have been put on death row all across the country."

And:

California spends an estimated 137 million dollars a year on its death penalty system, while the death penalty costs Florida approximately 51 million dollars a year, around 24 million dollars per execution.

There are currently 3,279 people on death row in the United States, including 690 in California and 403 in Florida.

Worldwide, some 2,390 people were executed in 2008, with nearly three-quarters of the executions in China.

Earlier coverage of the DPIC report, "The Death Penalty in 2009: Year End Report," begins with the preceding post.

Texas News Coverage of the DPIC Report

"Death sentences in Texas declining along with nationwide trend, anti-capital punishment group says," is the title of the Dallas Morning News report by Tom Benning.

Death sentences issued in Texas remained at historically low levels this year, part of a nationwide trend, an anti-capital punishment group reports today.

Texas juries issued nine death sentences in 2009, the same as in 2008, the Death Penalty Information Center said in a new report, maintaining a decline seen over several years.

One of the chief reasons is thought to be the 2005 state law that created a sentence of life without parole.

During the 1990s, Texas averaged 34 death sentences a year, and the decline – now evident over several years – is particularly noteworthy because of the state's stiff support of the death penalty and past proficiency in handing out death sentences.

"The death penalty has been a hallmark of Texas criminal law," said Richard Deiter, the center's executive director. "But like the rest of the country, Texas is changing."

The center also said concerns about flaws in the death penalty, as well as its cost, are contributing to the decline in sentences nationwide.

More executions were conducted in Texas this year than last, in part because of a backlog after a four-month moratorium while the Supreme Court considered the constitutionality of lethal injection. But executions were low compared to historic levels.

Defense attorneys and prosecutors agree that the life without parole option has drastically altered Texas' capital punishment system. But there are differing opinions on where and why that impact is being seen.

The Texas Defender Service and the Texas District and County Attorneys Association said there is anecdotal evidence that some prosecutors are seeking the death penalty less frequently, particularly because of the high cost of pursuing a death sentence.

National news coverage of the DPIC report, “The Death Penalty in 2009: Year End Report," is in the preceding post.

And:

Others believe the decline shows a growing concern among jurors about executing an innocent person. Questions and controversy over the arson case of Cameron Todd Willingham caused political turmoil and made headlines across the country. Several recent exonerations in Texas by DNA evidence also reinforced people's reservations, experts said.

"A lot of people are saying, 'Unless I'm 100 percent sure, I'm not going to vote to kill,' " said Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas. "That little bit of doubt can be significant."

In response to those concerns, Dallas County District Attorney Craig Watkins has taken several steps to re-establish credibility for the system, including the creation of a death penalty review team. But Watkins acknowledged that some jurors still might be leery about voting for a death sentence.

"Steep decline in death sentences," is the title of Peggy O'Hare's Houston Chronicle report.

During the 1990s, Texas averaged 34 death sentences per year, the national report says. But beginning in the 1999-2000 fiscal year, the number of death sentences handed down each year in Texas dropped into the 20s, and starting in the 2004-2005 fiscal year, dropped into the teens, according to Texas Judicial System data.

The Death Penalty Information Report says nine death sentences have been imposed in Texas so far in the 2009 calendar year, while the Texas Judicial System's most recent annual report says 15 death sentences were handed down statewide during the 2008-2009 fiscal year ending Aug. 31.

Death sentences in Harris County have also dropped to unprecedented lows, beginning around the time Gov. Rick Perry signed a law allowing juries to consider the life-without-parole option.

Harris County district attorney's officials said two people were sentenced to death here during the calendar year 2009, both on retrials — Robert Fratta, for hiring two men to fatally shoot his wife in 1994, and Raymond DeLeon Martinez, for robbing and killing a Houston tavern owner in 1983.

No one in Harris County was sentenced to death during the 2008 calendar year, while five people were sentenced to death here in calendar year 2007, district attorney's officials said.

The Texas Judicial System annual reports — which tracks death sentences by fiscal years instead — showed two people were sentenced to death in Harris County for each of the last three fiscal years. In each of the two fiscal years before that, three people were sentenced to death in Harris County — a sharp decline from years previously, when the county frequently recorded double-digit numbers of death sentences annually.

Harris County District Attorney Pat Lykos, who has been in office for only a year, said it's too early to say whether her prosecutors are seeking the death penalty less frequently, as Dieter suggests is happening nationwide. But she anticipates her office will be trying more capital murder cases next year than it did in 2009.

She said the final decision of whether to seek a death sentence rests with her.

“This is something that's a very solemn duty,” Lykos said, “and it shouldn't be undertaken lightly. I think unfortunately, in other states, some have been rather cavalier. But the decision should not be made on cost — the decision should rise and fall on the case itself and how heinous the offense is.”

The Fort Worth Star-Telegram has filed, "Death sentences are down, but Texas still leads in executions," with McClatchy News Service.  It's written by Aman Batheja.

Texas juries are following a nationwide trend of sending fewer convicted criminals to death, but the state still leads the country in executions by a wide margin, according to a new study released today.

Both in Texas and across the country, death sentences declined for the seventh straight year, according to a report from the Death Penalty Information Center, an anti-capital-punishment group.

Both in Texas and nationwide, the number of executions carried out rose this year. Out of 53 people executed by states in 2009, 24 occurred in Texas. Last year, there were 37 executions nationwide, with 18 in Texas. There was a four-month death penalty moratorium last year while the Supreme Court addressed the constitutionality of lethal injections.

Earlier coverage of the DPIC report,"The Death Penalty in 2009: Year End Report," begins with the preceding post.

National News Coverage of the DPIC Report - UPDATED

The DPIC report, “The Death Penalty in 2009: Year End Report," is in Adobe .pdf format.

"Death Sentences Dropped, but Executions Rose in '09," is John Schwartz' report for the New York Times.

More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report.

Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment.

“This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group.

The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Mr. Wisner said that while polls showed continued general support for capital punishment, “there is a real worry by jurors of, ‘I believe in it, but what if we later find out it was someone else and it’s too late to do anything about it?’ ”

In 2005, Texas juries were given the option of sentencing defendants to life without parole.

While death sentences are in decline, executions rose in the past year, according to the new report. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

The report also noted that in 2009 New Mexico became the 15th state to repeal the death penalty, in part because of budget considerations and the high cost of death penalty appeals, which Gov. Bill Richardson called “a valid reason” for eliminating the ultimate sanction “in this era of austerity and tight budgets.”

Mark Sherman writes the AP filing, "Report: Death sentences decline; death rows shrink," via Google News.

Texas and other states that lead the nation in executions are sentencing many fewer inmates to death, a trend that slowly is reducing the death row population in the United States, a report from an anti-capital punishment group says.

There were 106 death sentences imposed in 2009, the Death Penalty Information Center estimated in its annual report released Friday. That number is the smallest since capital punishment was reinstated in 1976 and compares with an annual average of 295 death sentences during the 1990s.

Fifty-two people were put to death in 11 states this year, nearly half as many executions as 10 years ago.

The center, which opposes capital punishment, attributes the drop in both executions and new death sentences to fears of executing the innocent, concerns about the high cost of the death penalty and laws that allow inmates to be sentenced to life in prison without parole.

Nine men who had been sentenced to death were exonerated and freed in 2009, the second highest-number of exonerations since the death penalty was reinstated, the report said.

Texas, which continues to far outpace other states in executions, has seen its death row population decline by more than a quarter in 10 years, mainly because of the decrease in death sentences. Harris County, Texas, which includes Houston and all by itself has put more people to death than any state other than Texas, has had no new death sentences for the past two years.

Statewide, nine people were sentenced to death in Texas in 2009, compared with 48 in 1999 and an annual average of 34 in the 1990s.

Ohio and Virginia — other states among the annual leaders in executions each year — recorded just one new death sentence each, although another Ohio inmate was resentenced to death by a three-judge panel after his sentence was twice overturned.

And:

The nationwide death row population has shrunk by nearly 10 percent in the past 10 years, but still tops 3,000.

Even in Texas, around 330 people remain on death row and the state already has scheduled six executions for 2010. Ohio, with roughly 175 inmates on death row, has six executions scheduled.

Two other states with large death row populations — California and Pennsylvania — have abandoned executions, at least temporarily.

California has roughly 690 inmates and Pennsylvania, 225.

CNN posts, "Death penalty use declining nationwide," by Supreme Court producer Bill Mears.

Fifty-two inmates were executed this year in 11 states. The last was Matthew Wrinkles on December 11 in Indiana. He was convicted of murdering his wife and two family members 15 years ago.

Late Wednesday, Georgia issued a stay of execution for Carlton Gary. Known as the "Columbus Strangler," he was convicted of murdering three women with their own stockings and was suspected of four other similar killings. He has been given more time to file further appeals.

As in previous years, Texas in 2009 led the states in executions, with 24 -- four times as many as the next-highest, Alabama. Among high-profile cases:

-- John Allen Muhammad, convicted as the so-called "Beltway Sniper," responsible for at least 10 killings in the sniper-style killings around the Washington, D.C. area and three other states in 2002. He was executed in Virginia in November.

-- Kenneth Biros, who became the first person executed in the U.S. using a single-drug lethal injection. A three-drug cocktail has been used nationwide for years by corrections officials, but no complications were reported with the new method. He was executed in Ohio on December 8.

"Number of death sentences falls to a historic low," is the title of the Washington Post article written by Robert Barnes and Maria Glod.

The trend of decreased death sentences was especially noticeable in Virginia, which is second only to Texas in the number of inmates executed. Even as the commonwealth put to death its most infamous death row inmate, Beltway sniper John Allen Muhammad, its courts were sentencing fewer murderers to death.

Virginia averaged six death sentences a year during the 1990s, according to the report by the center, which favors the abolition of capital punishment. But only one person has been sentenced to death in the commonwealth this year, according to the report, and only six others have been sent to death row in the five preceding years.

Legal experts and prosecutors in Virginia cite several factors for the decline, including Supreme Court rulings that barred the execution of juvenile offenders and the mentally retarded. They also point to a drop in violent crime, growing jury concerns about executing an innocent man, and prosecutors' concerns about the expense of pursuing a death penalty at a time of budget cuts.

"General public support for severe punishment increases when people feel less secure, and it declines when people feel more secure," said Richard J. Bonnie, a University of Virginia professor of law and psychiatry. "I have felt that people's worries about their security have been focused on terrorism rather than domestic crime."

Prince William County Commonwealth's Attorney Paul B. Ebert, who is known for his support of capital punishment, said he is seeing fewer heinous crimes. His office prosecuted four men who are currently on death row as well as two executed this year.

"The overall crime rate is dropping, and to some degree I think that's due to availability of the death penalty," Ebert said. He said most of the murders he has prosecuted recently are drug crimes or domestic killings, cases he said are less likely to result in a death sentence.

Ebert said there is also a practical reason for the decline. During a recent meeting with other prosecutors from across the state, he said several mentioned that tight budgets have discouraged them from pursuing protracted capital cases.

"They feel like they just don't have the manpower in their office to go through the long, long hearings," Ebert said.

The process ends at the Supreme Court, where the justices continue to spend a large portion of their time on death penalty appeals.

"All of these cases are going to be litigated to the hilt, and they have such a long life span that they create so many opportunities" for courts to make an error, said Douglas A. Berman, a law professor and sentencing expert at Ohio State University. "And not just error, but the kind of error that the Supreme Court has to pay attention to."

Of the nine opinions the court has handed down in the term that began in October, five concerned death penalty appeals.

In four of the cases, the court dispensed with its usual call for detailed briefings and oral arguments and summarily reversed the decisions of the lower courts. In most cases, the justices favored the prosecution.

But in one significant case, the court opened the door for military veterans to blame their crimes on post-traumatic stress disorder. Without dissent, the justices in Porter v. McCollum said a lawyer was negligent for not presenting to the jury evidence of his client's bravery during the war, even though it was 30 years after returning from Korea that he killed his former girlfriend and her new boyfriend.

This year, the court issued a rare order that a federal judge must consider the innocence claims of condemned Georgia prisoner Troy Anthony Davis, who has mounted a global campaign to declare that he was wrongfully convicted of murder and barred by federal law from presenting the evidence that would prove it.

To Berman and Elisabeth Semel, director of the death penalty clinic at the University of California at Berkeley's law school, it makes sense that the court, divided on many aspects of capital punishment, takes the chance to present a united front when it sees examples of mistakes in death penalty cases that all justices agree on.

Ashley Jones posts, "The Year in Capital Punishment: Sentences Down, Executions Up," at the Wall Street Journal Law blog.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment, argued that the decline in death sentences also corresponded to a decline in the murder rate.

At the same time, according to the report, executions rose in the past year. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

How to explain the rise? Ohio State law professor Douglas Berman, who authors the popular Sentencing Law and Policy blog, suggested that the rise in executions was due to last year’s relatively low number, as states grappled with the implications of a major 2008 Supreme Court decision on lethal injection.

In that case, Baze v. Rees, the court ended what amounted to a moratorium of several months, beginning in 2007, on lethal injection executions by proclaiming that the procedure used in Kentucky and other states was constitutional.

Death Penalty Information Center Releases 2009 Report

The DPIC report, "The Death Penalty in 2009: Year End Report," is in Adobe .pdf format. 

The next posts will link to news coverage of the report.

Coverage of Third Circuit Oral Arguments - Delaware Lethal Injection Procedure

Delaware Online reports, "Delaware courts: State's execution protocols dissected," by Adam Taylor. 

A three-judge panel heard arguments Wednesday in a class-action lawsuit that has held up executions in Delaware for more than three years.

U.S. 3rd Circuit Court of Appeals Judges D. Michael Fisher, Thomas M. Hardiman and Franklin S. Van Antwerpen spent about an hour questioning an attorney from both sides: One from the Federal Community Defender's Office in Philadelphia, which filed the suit on behalf of Delaware's 20 death-row inmates; and an attorney from the state.

The judges did not make a ruling Wednesday, nor did they offer any indication when they would.

"We will take the matter under advisement," Fisher said at the end of the session.

Delaware District Judge Sue L. Robinson ruled in favor of the state by granting a summary judgment in April, which meant the case never went to a formal trial. Robinson also maintained the freeze on all executions in Delaware until the appeals process is completed.

If the appeals court panel upholds Robinson's ruling and the case is not appealed to the U.S. Supreme Court, executions could resume in Delaware. The possibility also exists that Delaware's death penalty could remain in limbo if the appeals panel sends the matter back to district court.

The bulk of the session focused on the state's old and new methods for executions.

The state's old and new "protocols" involve the same three-drug mix -- an anesthetic, a paralytic agent and a drug to stop the heart. Among the changes are a longer period of time between the administration of the first and second drugs to evaluate the patient. Other enhancements include a consciousness check on the inmate during the process, plans for better record-keeping and the addition of a camera in the execution room.

Either way, it was clear that at least one of the appeals judges didn't like Delaware's history of handling past executions.

"It causes me some concern, the problems you've encountered," Van Antwerpen told Delaware Deputy Attorney General Mark Niedzielski. "If we do let you proceed, it's time to get your act together, OK?"

One of the most notorious problems involved the 2005 execution of Brian Steckel -- the last carried out in Delaware before the court-ordered freeze. Steckel's execution -- for the 1994 murder of Sandra Lee Long -- took far longer than expected with Steckel looking around, while strapped to the table after giving his final statement, and telling a prison official, "I didn't think it would take this long." Steckel snorted and convulsed once the drugs finally took hold after several minutes, rather than quietly falling asleep, as usually happens.

"There was an actual botch of an execution," attorney Michael Wiseman of the Philadelphia Federal Community Defender's office told the judges Wednesday.

Robinson's ruling in April said that a new set of standards by the state on how to carry out executions met constitutional standards. She also indicated she was not inclined to consider previous problems with Delaware executions.

Earlier coverage begins with this post.

The U.N. High Commissioner for Human Rights on Capital Punishment

Navi Pillay, posts, "Abolition of the Death Penalty," at Huffington Post.

This month we mark the 20th anniversary of the adoption of a key treaty that aims to bring about the abolition of the death penalty. The treaty - known as the Second Optional Protocol to the International Covenant on Civil and Political Rights - provides States with the means of signaling their commitment to the abolition of the death penalty.

The 72 states which have ratified the Optional Protocol since 15 December 1989 are under an obligation not to execute anybody who has been sentenced to death, to take all necessary steps to definitively abolish the death penalty, and to report on what they have done to this effect. In addition, they must not extradite individuals to a country where they would face the death penalty, nor can they reintroduce it in their own. Ratification of the optional protocol, as well as similar regional instruments in Europe and in the Americas, thus draws a firm line under the use of the death penalty.

I would like to take this opportunity to congratulate all those States that have abolished the death penalty.

I am opposed to the death penalty in all cases. I hold this position for a number of reasons: these include the fundamental nature of the right to life; the unacceptable risk of executing innocent people by mistake; the absence of proof that the death penalty serves as a deterrent; and what is, to my mind, the inappropriately vengeful character of the sentence.

While the death penalty remains legal under international law in limited circumstances, there is, as the Optional Protocol notes, a strong suggestion in international law that the total abolition of the death penalty is desirable.

And:

Abolishing the death penalty is a difficult process for many societies, and ratification of the Optional Protocol can often only come about after a period of national debate. Until they reach that point, I urge those States still employing the death penalty to place a formal moratorium on its use, with the aim of ultimately ratifying the Optional Protocol and abolishing the punishment altogether everywhere.

Pillay is the United Nations High Commissioner for Human Rights.

The World Coalition Against the Death Penalty has issued a news release, "UN Protocol on the Death Penalty Turns 20."

Ten countries are expected to ratify the Protocol as soon as possible. Their ratification will strengthen their position within the abolitionist family of nations: Armenia, Burundi, Côte d'Ivoire, El Salvador, Kazakhstan, Kyrgyzstan, Latvia, Mauritius, Poland and the Dominican Republic. 

These countries are already abolitionist in law and voted in favor of the UN resolution for a moratorium on the application of the death penalty in 2007 and 2008.

Among the countries that have ratified the Protocol, 8 are African states, including South Africa and Rwanda; 14 are on the American continent, including Brazil, Canada and Mexico; 8 are in Asia and Oceania, including Australia and the Philippines; and 42 are in Europe.
The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty was adopted by the UN General Assembly on December 15, 1989.

Related posts are in the international and international law indexes.

Juvenile Justice

Today's New York Times carries the editorial, "De-Criminalizing Children."  It addresses renewal of the Juvenile Justice Delinquency and Prevention Act of 1974, which the U.S. Senate Judiciary Committee is expected to take up today.

As many as 150,000 children are sent to adult jails in this country every year — often in connection with nonviolent offenses or arrests that do not lead to conviction. That places them at risk of being raped or battered and increases the chance they will end up as career criminals.

To fix this problem, Congress needs to properly reauthorize the Juvenile Justice Delinquency and Prevention Act of 1974, under which states agreed to humanize juvenile justice policies in exchange for more federal aid. This act was largely bypassed in the 1990s when unfounded fears of an adolescent crime wave reached hysterical levels.

When it reauthorizes the law — it is already three years late — Congress should make it illegal for states to place children in adult prisons, perhaps with the exception of truly heinous criminals.

The House has yet to introduce a new bill; in the Senate, an updated version has yet to be voted out of the Judiciary Committee. The Senate bill is less than ideal, but it does encourage the states to de-emphasize the practice of detaining children in adult jails before trial and requires them to better protect young people who end up there. Several states have begun to reform their systems: housing young people in juvenile facilities — where they are better protected and can get mental health treatment — even if they have been convicted in adult courts. The current version of the law threatens states with loss of federal aid if they make that decision. The Senate bill would do away with that language.

Our friends at Change.org are urging those concerned with juvenile justice to reach out to their home state senators via this link.

Related posts are in the juvenile and federal legislation category indexes.

Indigent Defense Roundup

There is troubling news from Georgia and Oklahoma.  From Georgia Public Radio, Emily Green reports, "State Slapped With Lawsuit Over Indigent Defense."

Budget problems across the country mean many states are struggling to find a way to pay for indigent defense.

In Georgia, another lawsuit has been filed against the state for failing to provide lawyers for poor defendants. Filed Tuesday morning, the lawsuit claims 200 poor inmates are without lawyers to help them appeal their convictions.

It's one of several suits alleging Georgia has violated the U.S. Constitution because it fails to adequately fund the public defender system, leaving hundreds of poor defendants without lawyers to assist with their cases.

In November 2009, the Georgia Supreme Court heard the case of death row inmate Jamie Weiss, who went more than three years without legal representation. His lawyers are asking the state to, at the least, dismiss the death penalty portion of the case.

However, state officials say lawsuits are counterproductive.

“If these lawyers were truly interested in helping the defendants, they would focus on getting them the services they need instead of chewing up state dollars on a lawsuit. Unfortunately, the state will be forced to spend already limited dollars on unnecessary litigation instead of serving these defendants,” says Chris Schrimpf, a spokesman for Governor Perdue.

At the Southern Center for Human Rights, attorneys for the poor hope the various lawsuits will force the state to take a hard look at how it funds the public defenders system.

We want the state to "revisit the question of how we structure things, how we fund things," says Lauren Sudeall, a lawyer with the Southern Center.

Jon Rapping, head of the Southern Public Defender Training Center, says Georgia’s indigent defense system is in bad shape.

“It is rapidly deteriorating. I think things may get worse before they get better,” says Rapping.

In 2005, Georgia lawmakers overhauled the state’s public defender system.

Experts hoped the state’s system would serve as a model for the rest of the country, according to Rapping. Instead, Georgia's public defender system has consistently seen its budget cut.

Earlier coverage for Georgia begins with this post.

"Oklahoma indigent defense struggles amid cuts," is the title of Julie Bisbee's report for the Sunday edition of the Oklahoman.

Next month, Joe Robertson will be in a courtroom in McAlester representing a client in a mental competency hearing.

It will be the first time in recent memory that the executive director of the Oklahoma Indigent Defense System has represented a client in court. But as the agency tries to do more with less, it’s a necessity.

Like other state agencies, the system has seen its budget cut as the state weathers an economic downturn. For the system, it means less money to hire private attorneys and a burgeoning caseload for staff attorneys.

The agency, which provides legal defense for people facing criminal charges, says it needs more than $1 million to keep providing services for people a judge has determined can’t afford an attorney.

Beefing up the funding could mean a decrease in state funds to Legal Aid of Oklahoma, said members of a House and Senate subcommittee on public safety and the judiciary.

"Legal Aid is totally optional. It’s a charity,” said Sen. Anthony Sykes, R-Moore, co-chairman of the committee. "We are not constitutionally obligated to do that. In a perfect budget situation both Legal Aid and indigent defense would have equal funding. But if we don’t provide legal aid there’s no federal penalty. If we don’t provide indigent defense a federal judge can issue an order and tell us what we have to do. Right now we’re triaging and prioritizing.”

Sykes said lawmakers attempted to use money from a fund that goes to Legal Aid of Oklahoma to help pay for the state’s indigent defense system.

"We were blocked at the executive level from doing that,” Sykes said.

Paul Sund, spokesman for Gov. Brad Henry, said the funding levels for the indigent defense system and Legal Aid were part of the budget agreement between Republican legislative leaders and the governor earlier this year.

"I don’t think the parties involved wanted to take money already earmarked for legal aid for seniors and working families and give it to the state agency charged with representing criminal defendants,” Sund said.

Related articles are in the indigent defense index.

Waco Tribune-Herald Series Examines District Attorney's Office

This lengthy, must-read series is titled, "Measuring Justice," is written by Cindy Culp.  Part 1 is titled, "Data offer clues on McLennan County district attorney's performance."  It appeared in the Sunday edition

The McLennan County District Attorney’s Office does not pursue half of all felony cases recommended by law enforcement officials, with prosecutors dropping most of those cases before formal charges are filed.

At first glance, that statistic might appear to bolster the complaints of some local police, who frequently grouse in private about the prosecutors’ handling of cases. The perception that McLennan County District Attorney John Segrest and his staff dismiss too many cases is one reason the Sheriff’s Law Enforcement Association of McLennan County has decided not to support Segrest in next year’s election. The group, along with the Waco Police Association, has endorsed local defense attorney Abel Reyna, who is a candidate for the post.

But criminal justice experts say a 50 percent nonprosecute rate could be a sign of an exceedingly well-run office just as easily as it could be a cause for concern. What is truly troubling is that in most jurisdictions, voters don’t have the information they need to judge that, even at election time, they said.

“Prosecutors are way off the charts in terms of public officials who exert substantial discretion in ways we don’t know about or understand,” said Marc Miller, a law professor at the University of Arizona and co-author of a study about why prosecutors decline cases. “. . . The election of a prosecutor is potentially the greatest moment for us to focus on a discussion of what we expect our prosecutors to do. But the dialogue we carry on about prosecutors is trivial.”

The percentage of cases Segrest’s office accepts from area police departments and the sheriff’s office has never before been quantified. To get that number, the Tribune-Herald examined raw data from Segrest’s office from a three-year period that ended in 2008.

The Tribune-Herald also requested data from six other Texas counties of similar size for comparison purposes. Two counties produced extensive information, and a third provided limited data. The other three counties did not provide figures needed to make reliable comparisons with local numbers.

Overall, the data show that the percentage of cases pursued by McLennan County prosecutors is within average range.

Local prosecutors either refused or dismissed 50.3 percent of felony charges during 2006-08. For misdemeanor cases, there was a 39.7 dismissal/refusal rate, and for all cases combined, it was 43 percent.

By comparison, during the same three years:

* Prosecutors in Jefferson County, home to Beaumont and Port Arthur, refused or dismissed 45.7 percent of felonies, 40.4 percent of misdemeanors and 42.2 percent of all cases combined.

* Prosecutors in Wichita County, where Wichita Falls is the county seat, refused or dismissed 46.3 percent of cases with felonies and misdemeanors combined. Data were not available broken down by felony versus misdemeanor.

Nationwide, a handful of studies on particular jurisdictions have shown that nonfederal prosecutors discard roughly 25 percent to 50 percent of cases without filing formal charges. The total number of cases not pursued in those jurisdictions would be even higher once dismissals were added in.

Part 2 is, "Voters often underinformed in DA contests."  It appeared in the Monday edition.

Marc Miller likes to joke that district attorneys lose elections only slightly less often than leaders did in the old Soviet Union.

The quip isn’t too far from the truth, though, the University of Arizona law professor said. A recent study of chief prosecutor elections across the nation found that when incumbents run, they win 95 percent of the time.

The primary reason for that success is that incumbent prosecutors aren’t even challenged in 85 percent of elections. In jurisdiction after jurisdiction, prosecutors are allowed to coast into another term without having to explain how their offices have performed, Miller said.

McLennan County District Attorney John Segrest has held his post longer than any other district attorney in local history. The last time he was challenged on the ballot was more than a decade ago. But that will change next year, when Segrest will face an opponent in the November general election.

Still, the odds are not in favor of voters getting the information they need to determine whether Segrest or a challenger is better for the job, said Ron Wright, a Wake Forest University law professor who wrote the election study and has partnered with Miller on research projects. Even when prosecutor elections are contested, the campaigns tend to focus on trivial matters, he said.

“What they often talk about is single cases,” Wright said. “They talk about their lawyering skills and background. What you are far less likely to see is a discussion about the overall output of their office, their priorities.”

That is worrisome, Wright and Miller said, because chief prosecutors occupy one of the most powerful positions in the criminal justice system. The discretion they have to prosecute cases or reject them gives them more control over the fate of those accused of a crime than a judge or jury.

Elections offer one of the only checks on that power, Miller and Wright said. They noted that when prosecutors have an opponent, they win only 69 percent of the time.

The upcoming election will be Segrest’s sixth time to run for the office. But some observers say it will be the only time he has faced a real opponent since his initial campaign.

In Oklahoma

The Oklahoman reports, "Oklahoma lawmaker Connie Johnson seeks support to abolish death penalty," by Julie Bisbee.

Sen. Connie Johnson said she will spend the next four years working to get support for abolishing the death penalty before eventually filing legislation.

Johnson, D-Oklahoma City, and members of the Oklahoma Coalition to Abolish the Death Penalty said they will organize grassroots support.

Death penalty cases cost the state more money more than non-death penalty cases, Johnson said.

"It’s time to start looking at the cost of incarceration and the death penalty,” Johnson said during a news conference Monday at the state Capitol. "We need to take a dollars-and-cents point of view.”

Johnson said she would wait to file legislation to abolish the death penalty to allow the coalition to organize support for the measure statewide

Republican legislative leaders said they would not support such a measure.

"State Senator Looks To Abolish Oklahoma's Death Penalty," is the AP report via KDTV-TV.

A state senator from Oklahoma City says she's renewing her efforts to abolish the death penalty in Oklahoma.

At a news conference Monday at the state Capitol, Democratic state Sen. Connie Johnson said she's hoping the state's current economic slump could provide momentum for public interest in abolishing capital punishment.

She says the high cost of prosecuting death penalty cases presents an unnecessary financial burden on the state.

Johnson says she doesn't intend to introduce a bill this year, but will work with the Oklahoma Coalition to Abolish the Death Penalty to launch a statewide educational campaign.

D’Alemberte Petitions for Innocence Commission in Florida

That's the title of a Florida News Service report from the Monday edition of the Jacksonville Observer.  LINK

Former American Bar Association President and prominent Tallahassee lawyer Sandy D’Alemberte filed a petition with the Florida Supreme Court Friday asking it to establish a commission to investigate how wrongful convictions occur.

D’Alemberte, a former Florida State University President who still teaches at the law school, wants the high court to establish have the panel examine cases where people were wrongfully accused and convicted to see what goes wrong in those cases and how the state can improve.

The system, he said, unfortunately fails and sometimes the wrong people get sent to prison.

“They also leave guilty people out on the streets and we destroy families,” he said.

His ideal commission is modeled after one that was established in North Carolina in 2002. The North Carolina commission includes judges, representatives of the Governor’s office, defense attorneys, law enforcement representatives, prosecutors, law professors and victim advocates. It also included a journalism professor and two general interest representatives.

In addition to North Carolina, California, Connecticut, Illinois, New York, Pennsylvania, Texas and Wisconsin also have similar commissions.

But even if the court does like the idea, he could run into a money issue. Funding for the court system, provided mostly by the state Legislature, has been low in recent years, meaning layoffs and cuts throughout the system as a whole. Finding money to establish a commission could be tricky.

“I guess my answer is a question,” D’Alemberte said. “Can we afford to neglect the idea that we’re convicting innocent people? Because, it’s a pretty expensive process to go through these wrongful convictions.”

Florida, like other states, has had high profile cases where people were wrongfully convicted of serious crimes.

Juan Melendez, a Puerto Rican immigrant, has been crisscrossing the country since 2002 after he was freed from a Florida prison where he spent 17 years, serving a sentence for a murder he didn’t commit. He was in Tallahassee in September for a forum at Florida State Law School talking up an ABA report suggesting ways to address wrongful convictions – particularly in death penalty cases –- in Florida. One of the suggestions was the establishment of a commission to investigate wrongful convictions.

"Petition calls for creation of Florida innocence review board," is the title of John Frank's report for the Miami Herald.

Former Florida State University president Talbot ``Sandy'' D'Alemberte filed a petition with the state Supreme Court on Friday asking for a commission to investigate wrongful convictions.

``I think it's just strange to see all the recent exonerations and not try to learn something about the mistakes we've been making,'' said D'Alemberte, who also is a former state lawmaker and former president of the American Bar Association.

The 18-page petition, signed by nearly 70 lawyers including some former state Supreme Court justices, calls for creating the Florida Actual Innocence Commission modeled off a system in North Carolina by the same name.

Such an idea is not new, but D'Alemberte cites the recent cases of Alan Crotzer, Wilton Dedge and nine others who were exonerated after being imprisoned. It also came a day after the Florida Innocence Project announced it has new evidence to clear a Polk County man, James Bain.

D'Alemberte, a prominent Tallahassee attorney, had harsh words for the Florida Bar Association, who he feels needs to do more to police the lawyers involved in these cases.

``I am shocked the Bar hasn't opened ethical inquiries into these recent cases,'' he said. ``I'm surprised they haven't shown more interest in the way the criminal justice system works.''

Rules allow a group of 50 or more attorneys to petition the court for a rule-making procedure and D'Alemberte said this commission would mirror similar ones that looked at the issues of racial and gender bias in the court system.

The AP report, "Fla. panel sought to study wrongful convictions," by Bill Kaczor is via the Miami Herald.

Sixty-eight lawyers on Friday asked the state Supreme Court to set up a panel to determine why at least 11 innocent people have been wrongfully convicted of crimes including rape and murder in recent years and recommend ways to avoid that happening in the future.

Former Florida State University President Talbot "Sandy" D'Alemberte filed the petition that includes three former state Supreme Court justices a day after an advocacy group announced DNA testing had cleared James Bain for the rape of a 9-year-old boy near Lake Wales.

Bain spent 35 years in prison - the longest stretch behind bars of 245 people who've been exonerated by DNA nationally.

"Wrongful conviction harms society in a number of ways," D'Alemberte wrote. "The innocent citizen suffers loss of income, damage to reputation, stress on family members, and exposure to brutal prison conditions."

It also means innocent people are imprisoned at taxpayer expense while "the actual criminal goes free and remains a danger to society," D'Alemberte wrote.

The creation of such a panel was one of several recommendations in an 2006 American Bar Association study of capital punishment in Florida. The Supreme Court in October clarified standard jury instructions for death penalty cases in response to another recommendation in that study, which found widespread confusion among jurors.

Lawyers signing the petition included former Justices Harry Lee Anstead, Arthur England and Gerald Kogan and former American Bar Association President Martha Barnett.

D'Alemberte, also a former American Bar Association president, served on the National Advisory Board of the ABA project. It also examined the death penalty in Alabama, Arizona, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.

The proposal for a Florida Actual Innocence Commission is patterned after a similar panel in North Carolina, one of several states that have taken similar steps including California, Connecticut, Illinois, Pennsylvania, Texas and Wisconsin.

The North Carolina commission has made recommendations dealing with mistaken witness identification, improper collection, labeling and preservation of evidence, false confessions, inadequate defense and errors by police and prosecutors.

Earlier coverage from Florida begins with this post.

3rd Circuit Hearing on Delaware's Lethal Injection Procedure

"Delaware courts: Appeals Court to hear suit on execution procedures," is the title of Sean O'Sullivan's report at Delaware Online.

The class-action lawsuit that has been holding up executions in Delaware for more than three years will be headed to the U.S. 3rd Circuit Court of Appeals today.

If the court upholds the April ruling by Delaware District Judge Sue L. Robinson and there is no appeal to the U.S. Supreme Court, executions could soon resume in the state.

However, attorneys from the Federal Community Defender's office in Philadelphia who are representing Delaware's 20 death row inmates and legal observers believe recent developments in Ohio could prompt the court to send the matter back to district court, keeping Delaware's death penalty in limbo.

At issue in the appeal are Delaware's method of execution -- a three-drug mix that has been associated with problems in the past -- the state's history of mistakes in past executions and a lack of a back-up plan if executioners can't find a vein in the condemned to deliver the lethal drugs.

Because Ohio this month successfully executed an inmate using a one-drug method, courts may decide this presents a "feasible and workable" alternative, said Richard Dieter, executive director of the Death Penalty Information Center.

But, he said, just because there is an alternative which supporters claim is more humane and causes fewer problems, does not mean the appeals court will order it to be used. There also has to be evidence that the existing execution system in Delaware has significant flaws.

"Given the precedent of the district court, it is going to be an uphill battle [for the plaintiffs]," Dieter said.

In April, Robinson granted summary judgment in favor of Delaware -- ruling that a new set of rules adopted by the state on how to carry out executions met constitutional standards. But Robinson also maintained the freeze on all executions in Delaware until the appeals process was completed.

In the Delaware case, attorneys for the death row inmates detailed a long list of problems in past Delaware executions including improperly mixed drugs and sloppy record keeping.

And then there was the 2005 execution of Brian Steckel -- the last carried out in Delaware before the court-ordered freeze.

Steckel's execution -- for the 1994 murder of Sandra Lee Long -- took far longer than expected with Steckel looking around, while strapped to the table after giving his final statement, and telling a prison official, "I didn't think it would take this long."

Once the drugs finally took hold, after several minutes, rather than quietly falling asleep as usually happens, Steckel snorted and convulsed.

Delaware Department of Correction officials initially denied that anything went wrong, but in court papers state attorneys acknowledged there had been problems in properly administering the three drug cocktail -- an anesthetic, a paralytic agent and a drug to stop the heart.

And:

In general, at the appeals court, a three-judge panel will hear an hour of arguments, take the case under advisement, and then issue a written opinion in several months.

While the U.S. Supreme Court found in 2008 that lethal injection does not violate the constitutional ban on cruel and unusual punishment, at least four states including Delaware, out of the 35 states that allow capital punishment, are under court-ordered delays in all executions because of ongoing litigation.

Dieter said a fifth state -- Nebraska -- also has a hold on all executions because the state is in the process of converting from using the electric chair to lethal injection.

Earlier this year, both houses of the Connecticut Legislature voted to repeal capital punishment, however, the governor vetoed the legislation.

Kentucky Puts Forth Execution Protocol

"State releases plan for execution procedure," is the title of Brett Barrouquere's AP report via the Louisville Courier-Journal.

Kentucky released its execution protocols for the first time Wednesday, and the public and legislators will get a chance to comment on the rules next year.

It's ultimately up to Gov. Steve Beshear to readopt the procedure or any changes.

The protocol covers a variety of areas, ranging from how quickly an inmate must become unconscious to when a coroner and physician are called in to certify death.

After fighting for several years to keep the protocol secret, the state released it just weeks after the Kentucky Supreme Court ruled 4-3 that it hadn’t been properly adopted. The court barred any executions until the method was redone.

And:

The protocol will be opened to public comment in January. Various legislative committees then review it before it goes to the governor for approval. It couldn’t take effect before next May.

The release of the protocol comes less than a week after Ohio used an overdose of one drug on convicted killer Kenneth Biros — the first one-drug execution in the United States.

Parts of Kentucky’s 74-page protocol have previously been made public, including the three drugs used to execute an inmate — sodium thiopental, a fast-acting sedative; pancuronium bromide, which causes paralysis; and potassium chloride, which causes cardiac arrest.

Details made public for the first time include:

*A coroner and physician are nearby to certify death. The coroner checks the inmate's pupils and pulse and the physician certifies the cause of death. Neither is in the execution chamber.

*If an inmate is conscious after 60 seconds during a lethal injection, the warden must stop the procedure and order that a backup IV be used in another site on the inmate's body.

*If an inmate has not died after 10 minutes during a lethal injection or two minutes during an electrocution, a second dose of drugs or jolt of electricity is administered.

*Members of the execution team must be a phlebotomist — a person trained to draw blood — emergency medical technician, paramedic or military corpsman or combat medic and have at least one year of professional experience.

*Each execution costs the Department of Corrections $17,000.

Courts around the country have split over whether states should have to follow administrative regulation procedures in adopting a lethal injection protocol. Maryland, Nebraska and California have found that the requirement applies to lethal injection, while courts in Missouri and Tennessee ruled that it doesn't.

California is undergoing a process similar to Kentucky’s and recently received public comment. Its execution method must still be approved by a federal judge, who stopped all executions there until officials eliminated deficiencies found in the original process.

Kentucky's three-drug protocol also is under attack in federal court by five inmates. They are challenging the protocol, the practice of giving Valium to inmates before an execution and how the state acquires the drugs used.

Kentucky has 35 death row inmates. The state has executed three men since the death penalty was reinstated in 1976, most recently in November 2008.

Earlier coverage from Kentucky begins with this post.  Related posts are in the lethal injection index.

Questions Surface After Texas Execution

That's the title of an OpEd written for Colorado's Durango Herald by Dr. Carol Huser, a forensic pathologist and the La Plata County corone.  It appeared in the Monday edition.  LINK

A few weeks before Willingham's scheduled execution in February 2004, Dr. Gerald Hurst, a highly regarded fire investigator in Austin, reviewed the case for Willingham's attorney.

Reading through the files, Hurst was amazed at the conclusions. His report described the crazed-glass concept as “an old wives' tale." The other findings on which the original investigators had based their conclusion that an accelerant was used were typical of a “flashover" - the explosive inferno that results when a structure fire reaches a critical temperature. The original conclusions were based on “junk science," Hurst said.

The positive test for mineral spirits on the porch? A charcoal grill and lighter fluid are visible in a prefire image of the house.

Unmoved by Hurst's report, the Board of Pardons and Paroles denied a petition to stay the execution. Cameron Todd Willingham died Feb. 17, 2004, by lethal injection, still maintaining his innocence.

More than two years later, a panel of top fire investigators reviewed Willingham's case for the Innocence Project. They stated that “each and every one" of the findings on which Willingham's conviction was based was “scientifically proven to be invalid."

In 2006, Supreme Court Justice Antonin Scalia said there has not been “a single case - not one - in which it is clear that a person was executed for a crime he did not commit."

It appears Scalia was wrong.

Earlier coverage of the Willingham case begins with the preceding post.

Tarrant County Medical Examiner Appointed to Forensic Science Commission

The Fort Worth Star-Telegram reports, "Tarrant medical examiner appointed to state forensic commission," by Alex Branch and Dave Montgomery.

Tarrant County Medical Examiner Nizam Peerwani was appointed Monday to the Texas Forensic Science Commission, the group that fell into controversy this fall when Gov. Rick Perry replaced several members.

Peerwani’s term on the commission is through Sept. 1, 2011. It oversees professional conduct in forensic laboratories.

Perry chose Peerwani to replace Randall E. Frost, the chief medical examiner for Bexar County, who resigned less than a month after accepting his appointment.

"I am very excited about it," Peerwani said Monday. "I think the commission is going to do a lot of good."

Peerwani becomes the third Fort Worth member on the commission, which has drawn national attention because of an inquiry into the case of Cameron Todd Willingham of Corsicana.

And:

Peerwani said that he is aware of the controversy but that it did not affect his enthusiasm to serve. He said he is joining the commission with an open mind.

"I think the commission did have some issues, and obviously those are not insurmountable," he said. "So I am certainly looking forward to working with the commission."

Peerwani said the governor’s office contacted him a couple of weeks ago about the possibility of an appointment.

"Tarrant medical examiner joins forensic panel," is the title of Allan Turner's Houston Chronicle report.

Gov. Rick Perry on Monday appointed Tarrant County Medical Examiner Dr. Nizam Peerwani to the Texas Forensic Science Commission, replacing a previous appointment who resigned rather than make public names of his family members.

And:

Frost later resigned, telling Perry that he could not meet Texas Ethics Commission requirements that he disclose personal financial data.

“While I have no objection to the disclosures of my personal financial interests, I am unwilling to disclose the names of my family members or the addresses of our residence, my spouse's business and our other properties, knowing that the information would then become public record,” he wrote in an Oct. 30 letter to Perry. “This would present an unacceptable risk to the peace of mind, privacy and safety of my family, particularly in light of the highly controversial material it appears the commission will be considering.”

Mike Ward posted, "Tarrant ME joins forensic commission," at the Austin American-Statesman Postcards from the Lege blog.

The commission oversees professional conduct in forensic laboratories.

It has drawn national attention because of an inquiry into the execution of Corsicana resident Cameron Todd Willingham. He was convicted and sentenced to death for setting a 2004 house fire that killed his three daughters.

Nine fire experts — one hired by the commission — have concluded that the arson investigation that led to his conviction was flawed, raising the possibility that the state executed an innocent man.

That has spurred the controversy in recent months, and Perry abruptly replaced four commissioners last fall. That sparked public complaints that he was trying to scuttle politically embarrassing findings in an election year, in which he faces a tough primary reelection challenge from GOP U.S. Sen. Kay Bailey Hutchison.

The Brief for today's Texas Tribune has "Culled," by Reeve Hamilton.

The commission has been the subject of great controversy due to the governor’s decision to replace key members immediately before a review of the controversial Cameron Todd Willingham case was set to occur.

Earlier coverage of the Willingham case begins with this post; All coverage is also available through the Todd Willingham category index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Diane Jennings Looks at the Commission on Judicial Conduct

Her report in today's Dallas Morning News is titled, "State Commission on Judicial Conduct has the job of judging Texas' judges."  It's a must-read:

A judge in Houston cleans his gun during a murder trial. A Dallas judge fails to file campaign finance forms. A Waco appeals court justice unlocks his colleague's office and reads papers without permission.

Who you gonna call?

The State Commission on Judicial Conduct.

Though many people, even lawyers, are unfamiliar with the small state agency, Texas has one of the oldest judicial oversight commissions in the country. In recent months, the commission has become better known because of its prosecution of the state's highest criminal appeals judge, Sharon Keller, for her actions in a death penalty case.

But as the legal community awaits a decision from a judge on what to do with Keller, the commission's 14 employees and 13 volunteer commissioners continue to oversee 3,750 judges across Texas.

"A lot of people find this case fascinating, and a lot of groups are looking at it for their own personal and political agendas," said Seana Willing, executive director of the commission. But, she added, "we do have other cases."

The goal of the commission (started in 1965), Willing said, is to safeguard public confidence.

"People put judges on a pedestal, and expect the people wearing those robes and sitting in those positions to adhere to just the highest standard of conduct," she said. But "not everybody is cut out for the position."

If someone complains, the commission investigates. The results are reported to commissioners who decide what, if any action, is warranted. In the early stages, staffers present both sides of an accusation against a jurist, and the accused may present his or her case to the commissioners.

If commissioners decide a case deserves formal proceedings, such as the hearing in the Keller case, the commission adopts a prosecutorial role.

In fiscal year 2009, 1,204 cases were filed. Most are dismissed, but 70 disciplinary actions were issued, with judges receiving punishments ranging from private sanctions to public reprimands.

A felony conviction or a misdemeanor conviction of official misconduct means automatic removal from office, but in most cases, only the state Supreme Court or the Legislature can remove a judge from the bench.

Sometimes the commission persuades judges to resign voluntarily in lieu of disciplinary action. That co-operative approach was preferred by the commission in its early years, said Lillian Hardwick, co-author of the Handbook of Texas Lawyer and Judicial Ethics. By the 1990s, however, the commission had a reputation as a "backwater agency that did nothing to anybody for a long time," as state Rep. Pete Gallego said in an American Bar Association report.

Coverage of the Commission's proceedings against Judge Keller begins with this post.

Fewer Texas Inmates Sentenced to Death

That's the title of a McClatchy News Service report in today's Los Angeles Times.  LINK

While the debate over capital punishment rages in Texas, the number of inmates sentenced to death row in 2009 is at a 35-year low.

Prosecutors have been pushing for fewer death sentences and, many observers believe, juries have become less willing to give them.

The biggest game-changer, several prosecutors and defense lawyers said, appears to be the introduction in 2005 of life without parole as an option. Jurors in capital cases previously were responsible for choosing either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years.

"With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society," Tarrant County Dist. Atty. Joe Shannon said. "We are probably waiving the death penalty more times than we used to because we're trying to forecast the outcome of the case."

But because of the state's growing list of exonerations via DNA evidence and other questionable convictions, some argue that juries are simply less willing to send someone to death row.

Democratic state Sen. Eddie Lucio Jr., author of the life-without-parole law, said prosecutors were trying to blame it for their troubles getting Texans to trust a scandal-ridden system.

"It isn't life without parole that has weakened the death penalty," Lucio said. "It is a growing lack of belief that our system is fair."

A poll from Rasmussen Reports released this month found that 73% of Americans are at least somewhat concerned that some people may be executed for crimes they did not commit. Numerous reports of death row inmates being exonerated have surfaced in the U.S. in recent years.

In the four years since the introduction of life without parole, Texas death sentences have dropped 40% compared with the four years earlier, state records show. The number of slayings each year in Texas stayed largely unchanged during that period, according to the Texas Department of Public Safety.

Texas juries sentenced 13 people to death in 2008. Nine have received death sentences this year. That's a far cry from 15 years earlier, when juries sent 49 people to death row.

Related coverage is here.

An Examination of Death Penalty Costs in Lubbock

Logan Carver writes, "Death penalty cases more expensive than lifetime imprisonment, but local CDA says cost never a consideration."  It appeared in the Sunday edition of the Lubbock Avalanche-Journal.  Here's an extended excerpt:

Legal experts and trial attorneys agree that most people outside the legal community don’t realize the high cost of the death penalty.

This fall, Gray County spent nearly $1 million seeking the death penalty against Levi King, who pleaded guilty to slaying a pregnant woman, her husband and her son.

Lubbock County spent more than $200,000 on its last death penalty case trying Rosendo Rodriguez III in 2008.

These costs do not include the cost of appeals, which can more than double the cost in capital cases, according to capital case experts.

A non-death penalty murder case typically costs Lubbock County about $3,000, court officials estimate.

“I’d say generally if you went down to the corner and asked 10 people at random, my guess is nine out of 10 of them would say 'No, life in prison is more expensive,’” said Steve Hall, director of the StandDown Texas Project, a criminal justice watchdog organization.

Polls show the majority of Americans support the death penalty for convicted murderers. And Lubbock County’s top prosecutor said he never considers cost when deciding whether to pursue the death penalty.

Hall said people who have not paid much attention to indigent criminal justice are often surprised to hear that capital litigation is typically more expensive than 40 years of lifetime incarceration.

The average cost to house an inmate in Texas prisons is $47.50 per day, said Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice.

That means it costs more than $17,000 to house an inmate for a year and $693,500 for 40 years.

From indictment to execution, the trial costs alone for a death penalty case are estimated at about $1.2 million, said Jack Stoffregen, who runs the West Texas Regional Public Defender’s Office for Capital Cases.

It is impossible to say death penalty cases across the board are more expensive than non-death penalty cases, but the capital punishment system as a whole is far more costly than its non-lethal counterpart, said Rob Owen, co-director of the University of Texas Law School’s Capital Punishment Center.

The cost of state-sanctioned killing includes the cost of the trial, the appeals, establishing, staffing and operating a separate housing facility in conjunction with the state’s maximum security level and, finally, the execution, Owen said.

“The system is the problem — that costs a bunch of money,” Owen said. “That as a whole is way more expensive than just deciding that life imprisonment will be your maximum punishment and sending everybody convicted of capital murder off to life in prison.”

Lubbock County prosecutors were scheduled to seek the death penalty against Alonzo Lewis this fall, but Lewis pleaded guilty in exchange for life in prison without possibility of parole.

Lubbock County has not sent a killer to Death Row since 2008, but has sentenced 18 people to death since capital punishment was reinstituted in 1976.

Related articles are in the cost index.

There Is No 'Humane' Execution

That's the title of an editorial in today's New York Times.  LINK

This is what passes for progress in the application of the death penalty: Kenneth Biros, a convicted murderer, was put to death in Ohio last week with one drug, instead of the more common three-drug cocktail. It took executioners 30 minutes to find a vein for the needle, compared with the two hours spent hunting for a vein on the last prisoner Ohio tried to kill, Romell Broom. Technicians tried about 18 times to get the needle into Mr. Broom’s arms and legs before they gave up trying to kill him. Mr. Biros was jabbed only a few times in each arm.

Ohio adopted the single-drug formula after the botched execution. It may well be an improvement over the three-drug cocktail, or may not. (Death penalty advocates who hailed it as less painful have no way, obviously, of knowing that.) But the execution only reinforced that any form of capital punishment is legally suspect and morally wrong.

Justice Ruth Bader Ginsburg noted, in a dissenting opinion in a death penalty case last year, that critics have charged that the three-drug cocktail poses a serious risk that the inmate will suffer severely. The one-drug method was not used before last week on human beings, and Ohio should not have used it without a more public airing of its strengths and weaknesses, with input from medical and legal authorities.

The larger problem, however, is that changing a lethal-injection method is simply an attempt, as Justice Harry Blackmun put it, to “tinker with the machinery of death.” No matter how it is done, for the state to put someone to death is inherently barbaric.

And:

Earlier this year, New Mexico repealed its death penalty, joining 14 other states — and the District of Columbia — that do not allow it. That is the way to eliminate the inevitable problems with executions.

The Virginia Pilot Examination of Capital Costs

"Virginia's budget woes slow down capital case," is the title of Shawn Day's report.  It appeared in the Monday edition.

In the 18 months since he took the helm of the Richmond area capital defender’s office, David Baugh said he has seen about 10 capital cases end in pleas after prosecutors pulled the death penalty off the table. 

The result? Life in prison for the defendants and likely a  savings to Virginia’s taxpayers, who won’t have to foot the bill for defense fees associated with lengthy trials and years of appeals, Baugh said.

With a $3.5 billion budget shortfall, the state has to make some tough decisions on using manpower and money to prosecute the capital cases, he said. Three out of four state capital defender offices are understaffed. State officials already have frozen vacant positions. Now, Baugh said, the state should consider freezing capital punishment as the next cost-saving measure. 

“The state ought to give serious thought to a moratorium on the death penalty until the budget gets straight,”  Baugh said. “You’d be amazed how much the state pays.”

The state paid more than $1 million to cover the defense of  John Allen Muhammad, who was executed last month for one in a series of sniper shootings that terrorized Northern Virginia in 2002.

Other capital cases carry significant costs, although not nearly as high as the bills for Muhammad’s defense. For example, the state paid $150,472 to cover defense expenses for Carl Lee Walton, said Katya Herndon, spokeswoman for the state Supreme Court.

Walton, of Virginia Beach, shot and killed two women at point-blank range in 2005. His first trial, in 2007, ended in mistrial. He was convicted at a second trial in October, but rather than sentence him to death, a judge ordered he spend life in prison without the possibility of parole.

And:

Taxpayers are covering costs of 13 other active capital cases across Virginia. In October, Douglas Ramseur took the helm of the capital defender’s office for the state’s southeastern region. Since then, one attorney has retired from the Norfolk-based office and another announced plans to leave for a position in a private firm.

The departures leave Ramseur and one other attorney to handle four capital cases, including one in Virginia Beach. Although he has received a waiver allowing him to quickly fill one of those vacancies, Ramseur said it likely will be February or March before a new attorney is hired.

“That’s the challenge, finding people who want to take on death penalty cases,” he said. The cases are stressful and the pay is low compared to a position in a private firm, he said.

The turnover in the office was among the reasons a judge agreed to postpone Ted Vincent Carter’s capital murder trial, originally set for Jan. 26. Carter is accused of robbing and shooting a police detective who was trying to buy drugs during an undercover operation last year.

The Pilot also carried the sidebar, "Imperfections abound with death penalty."

The legal decision facing Harvey Bryant - and every other chief prosecutor weighing whether to pursue the death penalty in a murder case - cannot be made in a vacuum when the choice is fraught with moral, political and practical ramifications.

In the 2006 murder at Hilltop Shopping Center, for example, Bryant, Virginia Beach's commonwealth's attorney, had to consider not just whether the crime met the 15 legal criteria for a death case. He also looked at the strength of the case (no eyewitness, but strong circumstantial evidence). He considered the heinousness (the killer had shot his victim in the back as she tried to escape) and the number of victims (one). He listened to the wishes of the victim's family (one wanted death).

Bryant's decision to forgo the death penalty against Christopher Hagans - guaranteeing with Hagans' guilty plea that he spends the rest of his life in prison without possibility of parole - was the right call. He told The Pilot's Duane Bourne that last month's plea agreement brought some finality to Elisabeth Kelly Reilly's family. And it greatly lessens the chance of extensive, costly, time-consuming appeals.

These are gut-wrenching decisions. Bryant acknowledges that. But they're also arbitrary. In another case recently in court - Marcus Garrett, convicted of killing three people at an Oceanfront condominium in 2005 - Bryant sought the death penalty.

And:

Is it fair to weigh how many people died? Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?

The shortcomings of this justice system are numerous and obvious. Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.

Southern Political Report noted the Pilot articles in the post, "The other 'death tax'," by John Tures.

Conservatives are very well versed in the original “death tax,” the term they use to describe the government’s estate tax.  But do they know about the other “death tax?”  It’s the one that costs states millions, leaving many with the unpopular choice of raising taxes or cutting services.  And that’s the policy of capital punishment.

Several years ago, I prepared to give a presentation on both sides of the death penalty at an Arkansas college.  I asked the audience what their opinion was on the subject.  “Fry ‘em,” one said without hesitation, and nobody said anything different.  Perhaps that sentiment translates well on a national level, where polls show 65% of Americans supports the death penalty.  That’s the findings from the latest Gallup Poll.  The number of supporters has remained relatively constant this decade.  In fact, only once (1965-1968) has the public had more death penalty opponents than proponents.  Additionally, 70 percent of states have the death penalty on the books.

One reason folks support the death penalty option is their belief that it is a cheaper alternative than taking care of someone’s basic needs in prison for the rest of their life.  Yet a new study has shown the opposite: the death penalty is a far more expensive option than trials without that capital punishment option, according to Lucile Malandain in the AFP publication, “Ending death penalty could save US millions."

In addition to documenting the high cost of executions, the report also notes the budgetary woes law enforcement officials face.  And the authors report that a survey of police chiefs find that the death penalty is the least effective tool for deterring crime.

The Pilot editorial on capital litigation cost is here.  Related posts are in the cost index.

Editorial Roundup

Shortly after midnight, Indiana executed Eric Wrinkles, who had waived his appeals.  Today's Fort Wayne News-Sentinel carries the editorial, 'If punishment doesn't deter, is it still morally acceptable to use it?"

Eric Wrinkles is dead, put to death by the state of Indiana earlier today. Neither Mary Winnecke nor Mae McIntire will be at peace with that death, but for vastly different reasons.

Winnecke’s daughter was one of three people Wrinkles murdered July 21, 1994. She happens to be a Catholic who says she has always opposed the death penalty for religious reasons but that her daughter’s death crystallized her opposition. She expressed the hope that Wrinkles would ask God for forgiveness before he died.

McIntire lost her adopted son and daughter to Wrinkles’ brutality. She hasn’t been able to find the forgiveness that Winnecke did.

“I don’t see why he should live,” she said before the execution. “He claimed he was on drugs and (that) caused it all, but he had been that way all his life.”

Winnecke won’t be happy with the execution because it violates a core principle so strongly held it withstood the worst kind of personal tragedy. McIntire will be disappointed, perhaps bitterly so, because she thinks the execution will bring closure, and it won’t.

If the two closest relatives of the murder victims can be so divided over how the murderer should be treated, how can the rest of us possibly agree on it? Indeed, the death penalty is one of those issues that trouble many Hoosiers greatly, even the ones who have made up their minds.

The best defense of the death penalty is to argue that it is a deterrent that can prevent other horrible murders on down the road. But the way it is administered, it is clearly not a deterrent (except that it does deter the one person it is carried out upon). Delays because of numerous appeals are so long that people who murder at a certain age will die in prison before they are executed. The expense involved is greater than that of life imprisonment.

And so few people who murder actually are sentenced to death. According to the Duneland Coalition to Abolish the Death Penalty, 4,616 Hoosiers were charged with murder from 1990 through 2,000, and only 14 people are on death row today – well, make that 13. Talk about a crap shoot.

So the question of the day is this: If capital punishment is not a deterrent, is it still morally acceptable to use it given that life in prison without parole is also an available option?

The Evansville Journal & Courier has, "Indiana inmate executed for 1994 triple murder."

The Virginian Pilot asks a similar question in its editorial, "Is an execution worth the price?"

A manager of a state agency has a common-sense solution for saving Virginia a few million dollars in this grim economy: Sentence killers - those found to have committed premeditated murder - to spend the rest of their lives in prison, with no chance ever of getting out.

Doing away with the option of a death sentence makes sense on several levels. It would save the state from having to pay fees associated with lengthy trials and years of appeals. It would end the agony of repeated court hearings for the families of victims. It would eliminate the four perpetually understaffed capital defender's offices, whose attorneys handle appeals automatically generated when people are sentenced to death row.

When prosecutors decide not to pursue a punishment of death, defendants are more likely to plead guilty, The Pilot's Shawn Day reported this week. Even if defendants go to trial, the court costs, borne by taxpayers, are much less expensive, the hearings less likely to be delayed.

At the moment, more than a dozen capital murder cases are under way across Virginia. The fees for the defendants' legal representation during a capital trial - $150 per hour out of court, $200 per hour in court - routinely reach six figures, and that doesn't include other court costs, including the prosecution's.

Given the $3.5 billion gap in the state's budget, David Baugh, who has managed the Richmond-area capital defender's office for 18 months, told Day that Virginia "ought to give serious thought to a moratorium on the death penalty until the budget gets straight."

A moratorium would be a good start. Eliminating the penalty altogether would be better. Besides other valid reasons for ending the practice, including the most compelling - that it would keep the state from killing someone later found to be innocent - getting rid of the penalty would free up money at a time the state is seeing so many needs.

If lawmakers won't listen to the moral arguments for abolishing the death penalty, they should consider the economic benefits.

Related posts are in the cost and deterrence indexes; more editorials, in the editorial category index.

Religion and the Supreme Court

Dahlia Lithwick's Slate column is titled, "Articles of Faith: Why Americans can't talk about religion and the Supreme Court."

When Justice John Paul Stevens, who is 89, retires—and he's expected to in the next year or so—there will be no Protestant left on the highest court in the land. Will President Obama be pressured to appoint one? Popular opinion once held that even one Catholic was too many on the court. Today there are six. But would anyone even notice if Obama appointed a seventh to replace Stevens? Once upon a time, there was an outright religious litmus test for Supreme Court appointees. Today religion is almost irrelevant in appointing new justices.

All of which raises a question: Are the days of caring about religious diversity on the high court behind us? Or is it merely that the days of talking about it openly are behind us?

We generally don't talk much about religion and the Supreme Court. We talk about the need for race and gender diversity on the court in brave, sweeping pronouncements: The court needs more women, we say, or more Asians, or more gay and disabled people. Because all those things will impact the law. But when it comes to talking about religious diversity, it happens in whispers, if at all. Because it might impact the law. For a small handful of Americans, the fact that six of the nine justices on the current court are Catholics is an underreported national scandal. But for most, it's just quirky news.

Former Justice Sandra Day O'Connor surprised folks in October when she was asked about the lack of geographic diversity on the court. Her candid response? "I don't think they should all be of one faith, and I don't think they should all be from one state." But O'Connor has long been one of the bravest women in America. Most of the time, the suggestion that there should be greater religious balance at the court is met with cries of religious intolerance and persecution.

A New Initiative From Sandra Day O'Connor

"O'Connor Helps Launch New Initiative Against Judicial Elections," ," is the title of Jordan Weissmann's National Law Journal report.

Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts.

On Thursday, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections.

The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute's 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O'Connor will chair.

O'Connor said the initiative would provide "information and useful support" to states considering a move away from judicial elections.

"No other nation in the world elects their judges in popular elections," O'Connor said. "We are alone in that regard."

Calling the initiative a "think-do tank," Kourlis said the initiative was about moving beyond public education efforts. "This is all about, OK, in this particular state, what do we need to do to build a majority," said Kourlis, who is executive director of the institute.

She said its first major test would be in Nevada, where a proposed constitutional amendment would replace judicial elections with merit-based selection.

And:

The advisory committee includes:

• Chairwoman: Justice Sandra Day O'Connor (retired)

• Justice Rebecca Love Kourlis of the Colorado Supreme Court (retired)

• Chief Justice Ruth McGregor of the Arizona Supreme Court (retired)

• Meryl Chertoff, director of the Sandra Day O'Connor Project on the State of the Judiciary at Georgetown Law

• Diane Gates Wallach of Cody Resources, liaison to the institute's board

• Mary Wilson, president of the League of Women Voters

• Chief Justice Wallace Jefferson of the Texas Supreme Court

• Chief Justice Thomas Moyer of the Ohio Supreme Court

• Ramona Romero, corporate counsel, logistics and energy, at DuPont

• Larry Thompson of PepsiCo

• H. Thomas Wells, past president of the American Bar Association

The Cruelty of Death Row

That's the title of commentary in the Guardian today, written by columnist Alexander Chancellor.  It has the subhead, "In the US, murderers are executed - so it's odd that Americans think their justice system is superior to all other."

As Amanda Knox starts her long wait in a Perugia prison for her appeal against her murder conviction to be heard, reports suggest that she is being well cared for. She shares a cell with a fellow American woman, is allowed to watch television, has won first prize in a creative writing competition, and is being regularly visited by nuns with whom (odd though it sounds) she spends time singing, reciting poetry and dancing. And according to an Italian MP who went to see her in jail, she believes that her "rights were respected" during her trial and still "has faith in Italian justice".

All this is in sharp contrast to the depiction of her by supporters in the United States as a simple girl-next-door demonised as a she-devil by anti- American bigots and wrongly convicted on the basis of flawed evidence, a botched investigation, and a forced confession. Americans automatically assume that their justice system is superior to that of any other country and that no American citizen can rely on a fair trial abroad. Maria Cantwell, a US senator from Knox's home state of Washington, has sought a meeting with secretary of state Hillary Clinton to air her concern that the trial was tainted by anti-American bias, apparently overlooking the fact that Knox's Italian co-defendant, Raffaele Sollecito, was treated exactly the same as she was.

No wonder that Italians are irked by these accusations from across the Atlantic, and that Italy's leading newspaper, Corriere della Sera, pointed out that it was odd for a country that keeps people cooped up for years in Guantánamo Bay without trial to make such a fuss about a murder conviction in Perugia. The fuss seems even more inappropriate when one contemplates the fate that Knox would have endured if she had been convicted of the same crime in the US. In all but the 15 of America's 50 states that do not have capital punishment, she would most probably have been condemned to death. She would then have languished for many years on death row – with no opportunity to dance with nuns – until all appeals were exhausted. And then she would have been put to death by one of those ghoulish methods for which the US is famous.

And:

It is extraordinary that a country as technologically advanced as the US finds it so difficult to put someone to death in a painless and efficient manner. The problem seems to be its love of innovation. In the late 19th century, in the search for a more humane way of killing people than hanging them, it came up with the electric chair. But as people's heads caught fire, their skin burned and oozed, and they lost control of their bodily functions, electrocution began to lose its appeal and was replaced by lethal injection. But the reality is that neither of these methods is as reliable as the traditional ones – hanging, beheading or shooting. The good news is that disillusion with all these methods, and growing evidence of their unjust application, continues to weaken America's faith in capital punishment and could lead one day to its abolition. In the meantime, if convicted of murder, justly or not, I would much rather be in Perugia than the US.

In Oklahoma

"Okla. Senator Wants to Abolish Death Penalty," is the KTUL-TV report.

An Oklahoma state senator will hold a press conference this afternoon to discuss a proposal to abolish the death penalty in Oklahoma.

Senator Constance Johnson of Oklahoma City will hold the press conference at 3 p.m. at the state Capitol.

Johnson has previously authored dealth penalty legislation. Senate Bill 2009, introduced in the 2006 regular session of the Oklahoma Legislature, would have established a commission to determine if the state's death penalty was administered in a discriminatory manner.

And:

The next scheduled execution in Oklahoma is set for January 14th. Julius Ricardo Young was convicted of beating a 20-year-old woman and her 6-year-old son to death in Tulsa in 1993.

Oklahoma has conducted 91 post-Furman executions.

Lethal Injection Roundup

"Court won't rehear challenge to lethal injection procedures," is the title of John Lyon's report today for the Arkansas News Bureau.

The state Supreme Court says it won’t reconsider its ruling ordering a lower court to dismiss a lawsuit that challenged the state’s lethal injection procedures.

The state’s highest court today denied a petition by death-row inmate Frank Williams Jr. for a rehearing in his case.

Williams, sentenced to die for the 1992 slaying of Lafayette County farmer Clyde Spence, alleged in a lawsuit that the state failed to comply with the Arkansas Administrative Procedures Act when it adopted rules regarding lethal injection without subjecting the rules to public review and accepting public comments.

The Legislature earlier this year approved Act 1296 of 2009, which wrote the state’s lethal injection procedures into law and declared the procedures exempt from the Administrative Procedures Act.

In October the state Supreme Court ruled that the new law made Williams’ lawsuit moot and ordered a Pulaski County circuit judge to dismiss the lawsuit and lift an injunction on Williams’ execution.

Today the Supreme Court denied Williams’ petition for rehearing without comment. The court also denied a petition by Williams for a new stay of his execution.

Williams had asked that his execution be stayed while he pursues an appeal to the U.S. Supreme Court.

Attorney General Dustin McDaniel this week asked Gov. Mike Beebe to set execution dates for three death-row inmates, now that Williams’ lawsuit has been dismissed. The lawsuit effectively had put executions on hold in the state.

Earlier coverage from Arkansas begins with this post.

Pat Gauen's column in today's St. Louis Post-Dispatch is titled, "Refined execution method may shift national debate."

Abby was as sweet as she was big, enthusiastically ignoring the fact that I am not a "dog person" to win me over by plopping her half-ton behind on my lap anytime I visited my sister Vicki's house.

So even as a non-dog-person, I felt Vicki's sadness when the only humane solution to the golden retriever-mix's failing heath was to assist her transition to wherever good dogs go after this life.

My sister, who loved Abby dearly, had every confidence that the veterinarian's needle would provide a peaceful, painless passing. I can't imagine that anyone reading this would doubt it.

So it seems confounding that society has not yet settled on how to humanely kill a human being.

Kenneth Biros made history in that direction this week. On Tuesday, he became the first condemned inmate in the U.S. to be executed with a single dose of barbiturate. It's the same drug, more or less, that dispatched Abby.

And the apparent success with it in Ohio should provide a strong alternative to the federal government, Missouri, Illinois and more than 30 other states beset by questions of whether their drug execution methods are unconstitutionally cruel.

Missouri's executions were interrupted for a while, based partly on those questions and partly out of concerns about the competence of the doctor in charge.

"Execution wrong no matter the method, says Ohio Catholic official," is by Catholic News Service, via the Catholic Spirit of Minneapolis/St. Paul.

When Ohio inmate Kenneth Biros was executed Dec. 8 with a one-drug lethal injection -- the first person in the U.S. to be executed in this manner -- the Ohio Catholic Conference did not specifically address the execution but instead reiterated the church's opposition to all means of capital punishment.

"The death penalty is wrong no matter what you use" to carry it out, Carolyn Jurkowitz, executive director of the Ohio Catholic Conference, told Catholic News Service Dec. 9.

And:

Archbishop Daniel E. Pilarczyk of Cincinnati sent a letter to the Ohio governor Nov. 18 asking him to "stop this lethal form of punishment," referring to the one-drug method.

"Ohio has spent the past several months figuring out how to kill another person more efficiently," he wrote, noting that the state "will lead the country in experimenting with the new one-drug method of lethal injection."

"What a shameful legacy for our state: pursuing the slippery slope of 'humane' death," he added.

Archbishop Pilarczyk noted that the state's bishops have consistently advocated for an end to the death penalty, saying they believe this form of punishment is unnecessary and systemically flawed.

Is Death Penalty Worth the Price?

That's the title of Jon Murray's report in today's Indianapolis Star.  LINK

Indiana is set to carry out its first execution in more than two years early Friday, when a convicted killer from Evansville will be put to death by injection.

But as Matthew Eric Wrinkles pays the ultimate price for his crime, his execution renews a debate over whether capital punishment is a cost taxpayers can afford.

Nowhere is the issue more pressing than in Marion County, where the costs this year alone to prepare for three potential death penalty trials has reached $659,000 and counting, according to the Public Defender Agency.

By the time appeals are exhausted -- and all the experts and legal costs are tallied -- the death penalty price tag for one case alone can reach $1 million.

For example, Desmond Turner's defense in the high-profile 2006 Hamilton Avenue slayings case has cost Marion County and the state nearly $850,000 -- among the state's most expensive -- and all the costs are not in.

"Every time a prosecutor elects to charge the death penalty," said Larry Landis, executive director of the Indiana Public Defender Council, "there's a giant sucking sound of $1 million going down the tube. . . . Some people just don't accept that it costs more to kill them than to keep them in prison for the rest of their lives."

Several studies have shown that the pursuit of a life sentence costs less than the death penalty, even considering the expense of a convict's longer incarceration. A state panel in 2002 estimated the cost difference for taxpayers at 30 percent to 38 percent.

In Turner's case, taxpayers will, in effect, pay both ways. After the county paid hundreds of thousands of dollars to fund what was expected to be a death penalty defense, Prosecutor Carl Brizzi decided to withdraw his death penalty request a few weeks before the trial.

Turner was convicted of seven counts of murder and was sentenced to life in prison without parole plus 88 years -- a tab that taxpayers will continue to pick up.

Another capital murder case, set for trial in Marion County next year, already has cost taxpayers almost as much as Turner's. Defense attorneys have submitted bills totaling $814,000 for Kenneth Lee Allen, who is accused of killing his mother and two grandparents in early 2005.

The cost of avoiding execution, however, can vary greatly, depending largely on the complexity of the case.

Wrinkles, who murdered his estranged wife and two in-laws in 1994 in Evansville, ran up a $62,000 defense tab for his trial, with tens of thousands more spent later on appeals, according to state data.

But that is on the low end, especially compared with more recent cases.

And:

In Indiana, counties receive reimbursements from the state for half of defense expenses in capital cases.

Even after the Marion County Public Defender Agency receives state reimbursements, the defense costs are enough to nearly break its budget. It has cut back in several other areas to compensate.

"Every dollar we spend attempting to do this, that's money we could have spent elsewhere," Chief Public Defender Robert Hill said. "(But) we have a constitutional mandate to defend our clients."

Then there is the price tag on the other side. Prosecutors, courts and the prison system also incur enormous costs in death penalty cases. But those expenses -- particularly for prosecutors, who rely on salaried lawyers and resources from other agencies -- are more difficult to track.

High defense costs are perhaps inevitable under the Indiana Supreme Court's Criminal Rule 24. Since the early 1990s, it has mandated two qualified attorneys for indigent defendants as soon as a prosecutor invokes the machinery of the death penalty.

Numerous overturned death sentences during the 1980s spurred that and other changes, including the start of state reimbursements and the setting of experience standards and caseload limits for the defense lawyers.

In Turner's case, Brizzi's decision to withdraw the death penalty just weeks before Turner's trial couldn't erase three years of vigorous preparation by his defense team.

Brizzi worried that a jury would demand rock-solid forensic evidence that prosecutors lacked. He took the death penalty off the table in exchange for Turner's waiver of his right to a jury.

Pursuing a life sentence for Turner from the start likely would have cost taxpayers a fraction in defense-related expenses.

Even so, Brizzi said, nobody could have foreseen the turn in evidence. And prosecutors would have lost the leverage that Brizzi thinks was crucial to winning convictions: "If we would have started at life without parole, Turner would have had no incentive to waive the jury."

Their agreement did reduce the length and cost of Turner's trial. Marion Superior Court had set aside roughly $75,000 to cover the costs of sequestering a jury in a hotel for four weeks, meals and staff overtime, according to administrator Glenn Lawrence.

And:

Hill, the county's chief public defender who has spent years defending clients against the death penalty, says high costs result from more sophisticated lawyers exhausting all avenues. They investigate the accounts of sometimes more than 100 witnesses, seek out forensic and psychiatric experts, and aggressively pursue investigative leads that might not pan out.

All of it in the name of building a full-throated defense of a client's innocence -- and also of his or her life.

Since 2000, Hill's agency reports, defense bills in Marion County death penalty cases have totaled $3.9 million.

Statewide, defense costs for trials and appeals have cost taxpayers nearly $20 million since 1990, including state reimbursements, according to estimates by the Indiana Public Defender Commission. That includes $6.5 million spent on Marion County cases.

Related posts are in the cost index.

WIBC-FM has, "After Wrinkles, 12 Others Await Execution in Indiana," By Eric Berman.

The early-morning execution of Eric Wrinkles will be Indiana's first in more than two years...and could be the last for a while.

Besides Wrinkles, 12 killers are awaiting execution in Indiana. But Death Row appeals first go through the state courts, then climb the ladder from federal district court to the Chicago-based Seventh Circuit Court of Appeals to the U.S. Supreme Court.

Fort Wayne quadruple murderer Joseph Corcoran's case is pending before the Chicago court -- the Supreme Court ordered a review of whether he's mentally ill.

The other cases are pending at the district court level or lower. And the pipeline is slowing -- only two death sentences have been ordered in the last four years. One of those two, Roy Ward, had originally been sentenced to death in 2002 for the rape and murder of a 15-year-old girl in Spencer County. His original conviction was overturned, prompting a new trial and death sentence in 2007.

Indiana's longest-pending death sentence isn't an Indiana inmate. Debra Brown was sentenced to death in 1986 for the murder two years earlier of a seven-year-old Gary girl, part of a multistate killing spree. Brown is imprisoned not in Indiana, but in Ohio, where then-Gov. Richard Celeste commuted a second death sentence to life in prison in 1991.

In addition to the 12 inmates awaiting execution, three more have had their death sentences overturned, but are still considered Death Row inmates while the state pursues further appeals.

Today's South Bend Tribune carries the OpEd, "Execution of Eric Wrinkles is wrong and without purpose," by Roman Catholic Bishop Gerald A. Gettelfinger.

The state of Indiana has scheduled the execution of convicted murderer Eric Wrinkles by lethal injection before sunrise on Friday as he has exhausted all his avenues of appeal. He has not sought nor intends to seek clemency from Gov. Mitch Daniels from the sentence of death.

A similar OpEd by Gettlefinger is noted here.

A Conflicting Deterrence Study

The Science blog at USA Today has, "Study: Executions might slightly lower homicide rates," posted by Dan Vergano.

Executions in Texas slightly lower homicide rates there, about five to 10 killings in the year afterwards, suggest criminologists.The executions also may displace homicides to nearby states, however.

"Does the death penalty save lives?," a study led by sociologist Kenneth Land of Duke University in the current Criminology journal, looked at executions in Texas from 1994 to 2005 and subsequent crime.  Criminologists, and Supreme Court cases, have debated the death penalty for at least four decades, the study notes, adding, "estimates of the deterrent effects of executions are highly sensitive to the model," used in the analysis.

In the study, the team looked at Texas, where about one-third of all executions have occurred nationwide since 1973, and where past researchers have disagreed on deterrent effects. Because legal decision led to greatly-increased executions in 1994, the researchers looked at cases starting with that year.

"We conclude that evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions," the study concludes. Based on statistics, about 2.5 fewer murders than would have otherwise took place in Texas in the one to four months after an execution, where the state had 8,511 murders in 2005, according to the FBI. But the analysis statistics suggest the executions also displaced murders to later months and to other states, lowering the deterrent effect of each execution to 0.5 fewer murders in the next year.

Texas execution rates have raised controversy, heightened this year by reports of questionable arson evidence used in a prominent case detailed the year in the New Yorker magazine. Disagreement among criminologists will likely continue over the deterrent effect of executions...

Last week, a study conducted by UT Dallas researchers, noted here, showed no deterrent effect. 

I believe that the most accurate and succinct comment on the topic comes from Cass Sunstein and Justin Wolfers in their 2008 Washington Post OpEd, "A Death Penalty Puzzle," noted here:

In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.

Related posts are in the deterrence category index.

Romell Broom's Ohio Hearing

Andrew Welsh-Huggins covered yesterday's heaing and filed, "Judge: Ohio inmate's execution appeal has limits," for AP, via Google News.

An Ohio inmate fighting the state's second attempt to execute him will be limited to a simple argument, a federal judge said Wednesday: Does the state, having failed once, have the legal right to try again?

Beyond that, a recent court ruling likely limits how much condemned inmate Romell Broom could say about pain he might suffer, said U.S. District Court Judge Gregory Frost.

The 6th U.S. Circuit Court of Appeals ruled Monday that death row inmate Kenneth Biros hadn't presented evidence that the state's new backup execution method could cause severe pain in violation of the U.S. Constitution.

Biros, 51, was executed Tuesday for killing a woman he met at a bar in 1991. He was the first person put to death in the country with a single drug in a lethal injection.

"We all agree that Mr. Broom suffered some pain from that attempted execution process," Frost said. "We all agree that the state of Ohio intends to proceed again on a second attempt."

But Frost said he doesn't know what Broom's lawyers could present about Broom's experience that would overcome the 6th Circuit's ruling.

Frost said the appeals court ruling appears to limit Broom to his argument over whether the state has the right to carry out a second execution attempt.

Lawyers will submit written arguments and Frost will rule within several weeks.

Broom, 53, attended the hearing wearing an orange jumpsuit and shackled at the wrists and feet.

Following Broom's execution try on Sept. 15, which Frost has called a "debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.

Broom said he was stuck with needles at least 18 times, the pain so intense he cried and screamed out. His attorneys say it would constitute cruel and unusual punishment for the state to try again and would violate Broom's double jeopardy rights, punishing him twice for the same crime.

"What happened to Broom on Sept. 15, 2009, at defendants' hands and under their direction was inhuman and barbarous," Broom's attorneys, Timothy Sweeney and Adele Shank, argued after the execution attempt. "It should not be permitted to happen again."

And:

The state opposes canceling a second try, saying Broom's execution was carried out according to the protocols then in place.

"There is no evidence that Broom suffered pain of such severity as to rise to the level of severe pain prohibited by the Eighth Amendment," Assistant Attorney General Charles Wille argued last month.

Earlier coverage of the botched execution attempt is here.

New Commentary From Deborah Denno

"Ohio's Perverse First Place," is the title of her Huffington Post essay.

Ohio executed Ken Biros by lethal injection yesterday. Having garnered this country's worst record of execution botches, the state also acquired another first place by imposing a method of execution never before used on anyone, anywhere. Mr. Biros died from a lethal dose of a single-drug and he could have died from an even riskier back-up plan -- procedures prompted by Ohio's disastrous attempts to execute another inmate this past September.

Biros's execution was not problem-free. Executioners required a half-hour, and nine unsuccessful attempts, to finally find a vein in which to put an IV catheter. According to one AP reporter, Ohio officials warned him and other witness-journalists that Biros could end up vomiting and convulsing if in fact the backup plan went into effect.

But Biros' flawed execution is hardly the exception. Over the decades, lethal injection has never met its purported goal of humaneness. The three-drug "cocktail" as it is called (bizarrely intimating that inmates die from happily attained hangovers) has been problematic from the start. The first of the three drugs (thiopental), a barbiturate anesthetic, is intended to serve as an execution "aperitif" to induce deep unconsciousness. The second drug (pancuronium bromide) paralyzes all voluntary muscles and causes suffocation. The third drug, potassium chloride, induces irreversible cardiac arrest. Without adequate anesthesia, however, pancuronium can cause excruciating suffering as the inmate slowly suffocates from the drug's effects while paralyzed and unable to cry out. The inmate's agony increases dramatically when executioners inject the third drug (potassium), which creates an intense and unbearable burning. Recent lawsuits have questioned whether pancuronium, which so effectively masks emotions, prevents executioners from assessing whether an inmate might be aware and in torment.

And:

But Ohio is not a state willing to give up on executions, as its remarkable record of ineptitude demonstrates. On November 30, Ohio issued a unique, two-part lethal injection protocol for Mr. Biros' execution. In the first part ("Plan A"), executioners were to inject only thiopental, the first of the three drugs typically used in a lethal injection. This "anesthetic-only" protocol represents the first time a state has bowed to the persistent demands of attorneys and human rights activists to eliminate the second two drugs.

If the execution team were to fail at Plan A, Plan B directs the team to inject directly into the inmate's arm or leg muscles an overdose of two drugs never used in any execution in the world. The state's inability to find a suitable vein in Mr. Broom clearly prompted the state to resort to intramuscular injections.

Plan B's problems are vast. Evidence indicates the drugs, hydromorphone and midazolam, will produce a slow, lingering death with the inmate in a state confusion, disorientation, and intense psychological anguish and torment. The nausea-evoking effect of hydromorphone may cause the prisoner to vomit, before or after drifting into unconsciousness.

The lingering death of Plan B violates multiple statutes and guidelines. Ohio's own lethal injection statute requires that death be "quick and painless"; Plan B is probably the slowest execution method ever proposed in the United States. Likewise, Plan B directly contravenes Ohio's veterinary euthanasia laws because the particular drugs and intramuscular method are all prohibited for animals.

Plan B also conflicts with Baze. Ohio has proposed using the same anesthetic-only protocol the Baze Court deemed an inadequate alternative. The Baze Court emphasized that its holding of constitutionality pertained to state lethal injection protocols that are "substantially similar" to Kentucky's, which Ohio's new method is not.

While kudos go to Ohio for eliminating pancuronium and potassium, Ohio's protocol is scarcely an acceptable solution. Biros' execution date was set before his lawyers and experts ever had a chance to fully develop their case. Even the judge who ultimately upheld Ohio's plan made clear that he was not able to review much of the evidence he would liked to have considered. Yet, other inmates will not have the same kinds of constraints. With a fuller record before them, other judges may reach a different result. The nation continues to struggle with the best way to legally kill people - just as some members of the Court in Baze said it would.

Earlier commentary from Denno, the Arthur A. McGivney Professor of Law at Fordham University, is here.

News Coverage of TCADP Report

Jordan Smith writes, "Texas Death Penalty Sentencing Declines," for the current issue of the Austin Chronicle, distributed today, but dated December 11.

The number of new death sentences imposed in Texas this year was the lowest since the 1976 reinstatement of the death penalty, according to a report released Dec. 7 by the Texas Coalition to Abolish the Death Penalty. There has already been another death sentence issued since the report was released, bringing the total handed out this year to nine; still, that number falls well under the previous low of 11 death sentences imposed in 2006. The decrease has taken hold across the state. Harris County has not sent a single inmate to death row since 2007, a stunning reduction for a county that's responsible for one-third of all defendants waiting in Texas' death house.

Still, while the number of new inmates sentenced to death declines, the state still leads the nation in the number of executions. Texas carried out 24 executions in 2009, nearly half of the national total. (Alabama put to death six people, making it the second most active.) In total, Texas has executed 447 people since 1982, when it resumed executions; 208 executions have been carried out under the leadership of Gov. Rick Perry. And the execution chamber still favors minorities: Of the 24 people put to death this year, 14 were black and seven were Hispanic. Just three were white.

Not surprisingly, questions about Texas' death system continued to rage this year, notes the TCADP report, including in the case of Cameron Todd Willingham, whose 2004 execution sparked a political storm this year and left open the question of whether the state executed an innocent man based on junk science. Indeed, the Rev. Carroll Pickett, who was the death row chaplain for nearly 16 years and counseled a number of Texas' condemned (including Charlie Brooks Jr. – the first inmate put to death after reinstatement), says he believes the state has wrongly executed other inmates, such as Carlos De Luna, executed for the 1983 knife murder of Wanda Lopez at a Corpus Christi convenience store. In that case, the prosecutors and police allegedly ignored information that another man, Carlos Hernandez – who, notably, had a penchant for knife assaults – was actually responsible for Lopez's murder. Pickett says Hernandez actually bragged about his guilt while in prison on an unrelated charge. Yet De Luna was executed in 1989, even though none of the physical evidence linked him to the crime.

In all, TCADP Executive Director Kristin Houlé said at a Capitol press conference, the death penalty is far more risky than it is effective, and it's time to end its use in Texas. "Concerns about innocence, arbitrariness, cost, and fairness generated unprecedented scrutiny of the administration of justice" this year in Texas, she said. "It is time for more elected officials to catch up with increasing public recognition that the Texas death penalty system is fatally flawed." Indeed, that's exactly what Rep. Lon Burn­am, D-Fort Worth, told reporters at the Capitol on Monday.

The TCADP report, Texas Death Penalty Developments in 2009: The Year in Review, is available in Adobe .pdf format.  Earlier coverage of the release is here.

As noted by Smith, one Texas death sentence has been issued since the release of the TCADP report.  The Huntsville Item reports, "TDCJ offender gets death penalty."  It's written by Mary Rainwater.

A seven-woman, five-man jury deliberated for two hours Tuesday before giving Texas Department of Criminal Justice inmate Jerry Duane Martin the death penalty in the death of TDCJ officer Susan Canfield.

Martin was found guilty of capital murder early last week for his escape from the Wynne Unit in September of 2007, which resulted in the death of Canfield.

The punishment phase, which began Dec. 1, concluded with attorney closings on Monday, followed by over five hours of deliberations by the jury.

And:

According to State District Court Judge Kenneth H. Keeling, who presided over the trial, Martin’s case will automatically be received for review by the Texas Court of Criminal Appeals.

Martin asked that current attorney William Carter continue as his counsel during the appeals process. Writ counsel will be assigned at a later date.

Judgment for the case was set for 11 a.m. Thursday, Dec. 17, at the Walker County Courthouse in Huntsville.

America's Prison Population

The Department of Justice Bureau of Justice Statistics has released two annual reports detailing America's prison population and those on probation and parole.

A summary page has links to both Prisoners in 2008 by William J. Sabol, Heather C. West, and Matthew Cooper, and; Probation and Parole in the United States, 2008 by Lauren E. Glaze and Thomas P. Bonczar.

"Prison Population Up, Despite Drop in 20 States," is the AP report, via the New York Times.

The prison population in the United States edged up slightly last year, but the total number of inmates dropped in 20 states, including New York, Georgia and Michigan.

Justice Department figures released Tuesday showed the overall state and federal prison population is at an all-time high of 1.6 million and is still rising, but the rate of growth is slowing as states look for ways to cut the cost of justice.

Including people in jails, where some are held to await trial, the total number of people behind bars comes to 2.3 million. The government figures showed one out of every 133 residents in the United States was in prison or jail at the end of last year.

The prison population grew less than 1 percent last year. In the previous decade, the inmate population grew by an annual average of more than 6 percent. Ram Cnaan, a professor at the School of Social Policy and Practice at the University of Pennsylvania, said the slowing trend showed politicians were confronting a painful truth about prisons.

“They simply cost too much,” Professor Cnaan said. Both liberals and conservatives are increasingly searching for alternative sentencing programs, like treatment or monitoring, he said.

“It’s not ideological, it’s pragmatic,” Professor Cnaan said. “This is the first time that we have alliances on the right and left on this issue, and it’s the money that has forced the issue.”

The states with the largest increases in prison population were Pennsylvania, Florida and Arizona, whose one-year increases were all greater than the federal prison system, which grew by 1,662 inmates.

Today's Washington Post has, "Many states sending fewer people to prison, federal report shows," by Krissah Thompson.

The Bureau of Justice Statistics data also found that the incarceration rate for African Americans -- who are imprisoned at rates higher than other racial groups -- fell sharply, with 9 percent fewer black people behind bars. Studies this year by the Sentencing Project, a research group that advocates for lower rates of imprisonment, have attributed the decline to the lower number of blacks imprisoned for drug offenses.

A report released earlier this year by the project found a 21.6 percent decline in the number of African Americans incarcerated in state prisons for a drug offense from 1999 to 2005, along with a rise of 42.6 percent in the number of white drug offenders. Still, black males are incarcerated at more than six times the rate of white males, and black females at three times the rate of white females, Marc Mauer, the project's executive director, said in a statement.

"While the declining number of African Americans in prison is encouraging, the scale of racial disparity in imprisonment is still dramatic," Mauer said.

Human Rights Watch has issued a news release, "Cause for Hope as Prison Growth Slows," via Reuters.

"These numbers suggest that the United States may be turning away from the policies that have given it the world's highest incarceration rate," said David Fathi, director of the US Program at Human Rights Watch. "But as the world's leading jailer, the US still has a long way to go."

The BJS statistics show that the United States has more than 2.4 million people behind bars on any given day, and an incarceration rate of 754 per 100,000 residents. This is the highest incarceration rate in the world, and is several times higher than rates in other democracies like England and Wales (154 per 100,000), Canada (116), and Japan (63).

The report also reveals significant racial disparities in US criminal justice policy, with black men incarcerated at a rate six and a half times as high as that of white men.

As the financial crisis has created record budget deficits, many states have amended their sentencing laws to reduce the use of incarceration; others have granted early release to prisoners convicted of minor, nonviolent offenses.

"The United States may finally be learning what other democracies have long known - that incarceration is expensive and socially destructive, and should only be used as a last resort," Fathi said.

The Council of State Governments issued, "U.S. Justice Department's Bureau of Justice Statistics Releases New Numbers about Nation's Correctional Population."

The Bureau of Justice Statistics (BJS) released two bulletins today that examine the numbers of prisoners and individuals under probation or parole supervision in the nation for 2008 and report on related trends—including an overall increase in the number of individuals being released from federal and state prisons.

Although these bulletins contain rich information for policymakers and practitioners, the CSG Justice Center's National Reentry Resource Center, supported by the Bureau of Justice Assistance, is highlighting just a few of the findings related to reentry and providing information on how to access the full reports as soon as they became available.

The new statistics reveal that the total prison population growth rate (.8 percent) was the slowest in eight years; however, "the numbers of state and federal prisoners reached all-time yearend highs in 2008." BJS estimates that about 1 in every 198 U.S. residents was incarcerated in federal or state prison at the end of 2008.

Prisoners in 2008 reveals that the number of individuals released from federal and state prisons rose to 735,454 (an increase of 2 percent). The bulletin also reports that there was an 8 percent increase in the number of individuals released to the community without any conditions. These numbers underscore the need for reentry resources and technical assistance to state and local service providers.

Probation and Parole in the United States, 2008 provides useful information about the nearly 5.1 million adults under community supervision—about 1 in every 45 adults in the country. (The bulletin on prisoners indicates that although the number of parole violators admitted to state prison increased again in 2008, the rate of that increase was slower than in the previous two years.)

Both bulletins provide detailed appendixes with information about particular states, methodologies, and notes that describe how jurisdictions collect and report data.

Last week's BJS report on capital punishment is noted in this post.

New Execution Method Unlikely to Gain Traction in California

That's the title of Carol Williams' report in today's Los Angeles Times.  LINK

An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.

But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.

And:

California and several other states that have the death penalty on hold are reviewing their three-drug procedures to address claims that they might inflict "cruel and unusual punishment" banned by the Constitution. The first drug -- the one used in Biros' execution -- is supposed to render the prisoner unconscious before paralysis is induced by the second drug and cardiac arrest by the third. In some of the 11 lethal injections carried out in California since the 1990s, analysts contend the prisoner was still conscious when the painful fatal dose was injected.

Ohio authorities were able to quickly revise their execution method after a failed Sept. 15 attempt at putting to death another inmate, Romell Broom, 53. The execution team worked for more than two hours trying to find a suitable vein before the governor halted Broom's execution.

California couldn't switch methods so quickly. The state's Administrative Procedures Act requires authorities to seek public comment on any change in official practices.

Capital punishment supporters say opponents abuse the law to delay executions.

"Opponents of the death penalty then intentionally make that process more expensive and time-consuming than necessary by spamming [corrections officials] with a flood of irrelevant comments decrying the death penalty generally," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento-based foundation that represents the interests of victims' rights groups and law enforcement.

Deborah Denno, a Fordham University law professor who opposes the death penalty, said Ohio's execution of Biros probably will inspire other states to consider adopting that method. But it has done nothing to address the problem executioners often encounter in finding a vein capable of holding the catheter through which the lethal drug or drugs are delivered, she said.

UC Berkeley law professor and Death Penalty Clinic director Elisabeth Semel noted that the one-drug method has been discussed during the four years that California's three-drug protocol has been under review. But a task force appointed by Gov. Arnold Schwarzenegger in 2007 to revise the execution method apparently never gave it serious consideration, Semel said.

"It's the historic problem with execution procedures, that they have always been conducted in secret," said Semel, whose clinic offers opportunities for students to represent prisoners with capital sentences.

U.S. District Judge Jeremy Fogel in San Jose ruled California's lethal injection practices unconstitutional in December 2006. The governor's task force revised the procedures to ensure that the prisoner would be fully anesthetized before death, but before the changes could be evaluated by Fogel, attorneys for two death row inmates challenged their legality in state court.

A judge in Marin County, where San Quentin's execution chamber is located, deemed the revised procedures illegal for their lack of public input. A state appeals court upheld the ruling a year ago, prompting the California Department of Corrections and Rehabilitation to call for comment, drawing more than 8,000 letters, e-mails and public statements.

The corrections department "is still going through the thousands of public comments received. No one knows when that will be completed," said spokeswoman Terry Thornton.

Earlier coverage from California begins with this post.  Coverage of Judge Fogel's federal court ruling is here; the state court ruling, here.

Nebraska Moving Forward With Plan for Three-Drug Procedure

"Neb. lethal-injection plan advances," is the AP report via KTIV-TV.

A proposed lethal-injection protocol in Nebraska has been submitted to Attorney General Jon Bruning for approval.

Last week, the state Department of Correctional Services signed off on the three-drug cocktail and the process of administering it to death-row inmates.

The department devised the proposed protocol and did not make any changes to the proposal after some raised concerns about it, including that it doesn't clearly specify how workers should be trained to administer the drugs.

If Bruning approves the proposal, it will go to Gov. Dave Heineman for final approval.

Nebraska has been without a means of carrying out the death penalty since early last year, when the state Supreme Court deemed the electric chair cruel and unusual punishment.

Earlier coverage from Nebraska begins with this post.

Also From Ohio

A federal district judge in Ohio is holding a hearing today on the botched execution attempt of Romell Brown in September.

"Ohio killer asks judge to stop 2nd execution try," is the title of the AP report.

A day after Ohio became the first state in the country to use a single drug in a lethal injection, the condemned killer whose botched September execution prompted the change from a three-drug method is returning to court to argue against another attempt to put him to death.

A federal judge said he'd start hearing arguments Wednesday on the case of inmate Romell (roh-MEL') Broom, who was sentenced to die for raping and killing a teenage girl.

The state bungled Broom's Sept. 15 execution when it couldn't find a usable vein for injection and wants to try again.

His attorneys say that would constitute cruel and unusual punishment.

Coverage of the botch execution attempt is here; its aftermath, begins with this post.  Related posts are in the lethal injection category index.