The StandDown Texas Project

First Circuit Court to Examine Rhode Island - Federal Dispute En Banc

"Full appeals court to hear RI shot-at-bank case," is the AP report bybLaura Crimaldi.

The full panel of a federal appeals court on Wednesday decided to hear the case of a man stuck in a legal tug-of-war between prosecutors and Gov. Lincoln Chafee over a possible death penalty prosecution.

The order by the U.S. 1st Circuit Court of Appeals in Boston vacates an October decision siding with Jason Pleau. The 34-year-old Pleau is accused of fatally shooting gas station manager David Main, 49, outside a bank last year. Rhode Island doesn’t have the death penalty.

The full panel will hear the case on April 4. The court said prosecutors and lawyers for Pleau and Chafee can submit additional written arguments to the panel.

In October, the appellate court’s three-judge panel issued a 2-1 decision in favor of Pleau, saying Chafee has the right to keep him in state custody. Prosecutors last month asked the court to reconsider the ruling.

Chafee says prosecutors want to try Pleau in a federal court to expose him to the death penalty. Prosecutors have not said whether they’ll seek the death penalty if Pleau is convicted. In a statement, Chafee called it “entirely appropriate’’ for the full court to hear and decide the case and said he looks forward to presenting his case.

Pleau’s attorney, Robert B. Mann, said he knew the appeals court might decide to put Pleau’s case before a full panel of judges. The office of Rhode Island U.S. Attorney Peter F. Neronha had no immediate comment.

The custody battle over Pleau dates back to June when Chafee refused a request from federal prosecutors to surrender Pleau so he could be arraigned in U.S. District Court in Providence. The fatal shooting took place at the threshold of a federally insured bank, giving federal authorities the jurisdiction to prosecute Pleau.

Chafee, an independent, cited the state’s long opposition to the death penalty in refusing the request. Pleau has agreed to plead guilty to state murder charges and serve life in prison without parole.

After Chafee’s denial, prosecutors asked a federal district court judge to order Pleau’s surrender. The judge sided with prosecutors, but Pleau’s federal court arraignment was canceled after the appeals court sided with him and granted a temporary stay of the transfer order.

"1st Circuit to re-hear prisoner custody battle," by Matt Yas for Massachusetts Lawyers Weekly.

The full 1st U.S. Circuit Court of Appeals has agreed to rehear the case of an accused killer’s custody battle that has pitted federal prosecutors against the governor of Rhode Island.

Today’s ruling vacates an earlier 1st Circuit panel decision that ruled the defendant would remain in state custody.

A three-judge panel on Oct. 13 ruled 2-1 in favor of Jason Pleau, who stands accused of fatally shooting a gas station manager outside a Citizens bank last September. Gov. Lincoln D. Chafee’s June decision to keep Pleau in state custody made him the first governor to refuse a request by federal officials to hand over a prisoner. U.S. prosecutors have said they would consider asking for the death penalty.

Earlier coverage of the Rhode Island case begins at the link.  Related posts are in the federal death penalty index.

Arizona Lethal Injection Ruling

Today's Arizona Republic reports, "Arizona hasn't violated rights during executions, judge says," by Michael Kiefer.

A U.S. District Court judge ruled Wednesday that even if the Arizona Department of Corrections varied from its court-approved protocol for execution by lethal injection, there was no violation of prisoners' constitutional rights.

And even if the drugs used in two of the last five executions were obtained unlawfully, the Corrections Department did not do so intentionally and knowingly, the judge wrote in his decision.

Judge Neil Wake ruled in favor of the state, denying an injunction requiring the DOC to conform to its established protocol.

"This ruling puts to rest yet another of the specious legal barricades that capital-punishment opponents have thrown up in the past few decades to challenge the death penalty," Arizona Attorney General Tom Horne said in a prepared statement.

In the ruling, Wake told the Department of Corrections that it needed to follow the protocol, although he said Corrections Director Charles Ryan had made reasonable decisions to vary or had simply committed oversights.

Furthermore, Wake ruled, those variances did not rise to the level of cruel and unusual punishment as defined by the U.S. Constitution or a 2007 U.S. Supreme Court decision regarding execution by lethal injection.

A DOC spokesman said Ryan was pleased with the ruling.

Dale Baich of the Federal Public Defender's Office, which brought the suit on behalf of five death-row inmates and one man who has already been executed, said that his office will appeal the ruling.

"The court appeared troubled, as we were, that the Department of Corrections did not follow the protocol as written," Baich said.

"But because the standard set by the Supreme Court is so high, we could not meet our burden."

Earlier coverage of the Arizona lethal injection litigation begins at the link.

A New Death Penalty Countdown

New York Times editorial writer Andrew Rosenthal has posted, "Death Penalty Death Watch: California," at hisLoyal Opposition blog.  Here's the beginning:

I’ve already made my position on capital punishment clear, on the editorial page and on this blog. The death penalty is immoral: the state shouldn’t play at executioner. It’s imposed in a racially biased manner, defendants have insufficient access to reliable counsel, and it’s also impractical: It’s expensive, with convicts sitting on death row for decades, and the means of execution are often cruel.

Because this issue matters to me, and to the Times editorial board, I’ve decided to start a death penalty death watch, in which I’ll highlight news suggesting that the barbaric practice is finally on the decline—as well as news suggesting that it should be.

For my first installment, I’ll focus on California. In 2006, a federal district court ruled that California’s lethal-injection method lacked reliability and inflicted excessive pain, constituting cruel and unusual punishment. The state proposed a new death-penalty protocol, but in a parallel case decided last week, a Marin County judge declared that invalid as well. While such decisions don’t take on the legality of the death penalty itself, they add to the impression that states just aren’t good at carrying it out.

Related posts are in the blog blawg index.

California’s Lethal Injections

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

In 2006, a federal district court ordered California to stop executing people because the state’s three-drug protocol for lethal injection lacked “reliability.” Six of the 11 men executed by lethal injection in the state since 1978 may have suffered cruel and unusual punishment in violation of the Constitution because the injection inflicted “excessive pain,” Judge Jeremy Fogel found. He said the state could cure the constitutional problem by being transparent in devising a new protocol and using a one-drug, anesthetic-only method (as Ohio and Washington do).

Now, five years later, a state court has ruled that California’s approach to revising the rules for lethal injection was invalid. Judge Faye D’Opal said the state flouted its own administrative law, which spells out the process that it had to follow. The process it used exemplifies California’s capital-punishment system — badly broken and in need of being permanently shut down.

And:

California’s system of government-hobbled-by-referendum means only the state’s voters can abolish the death penalty. They should stop this madness of attempting to fix something that is immoral and simply cannot be fixed.

Coverage of the California lethal injection issues begins at the link; coverage of the California ballot initiative is also available.

Thursday

I have several news articles to post today, and will be doing so after an out-of-office meeting concludes.

Former Corrections Workers Speaking Up

AFP posts, "Ex-jailers become US anti-death penalty advocates," by Chantal Valery.  It's datelined Washington. Here's an extended excerpt:

"I can see their faces in my nightmares," said Allen Ault, a former Georgia prison warden among a growing number of ex-jailers and executioners opposed to the death penalty in the United States.

Across the country, prison workers who once supported the death penalty are beginning to lend their voices, alongside other prominent figures, to the campaign to abolish capital punishment in favor of life imprisonment.

In his role as the director of the Georgia Department of Corrections in the 1990s, Ault supervised five executions in a death row that he had built 20 years earlier.

Ault would give the order to pull the switch on death row inmates strapped to an electric chair.

It is "the most premeditated murder that one can do, there's no other way to describe it," Ault said, calling putting inmates to death an "inhumane job for people who have a conscience and who value life."

He was among six retired prison wardens who urged Georgia officials -- in vain -- to try to halt the execution of Troy Davis, an African American who was put to death in September for killing a white off-duty police officer in 1989.

During his career as Florida prison system warden, Ron McAndrew escorted three prisoners to the electric chair, and five others to the death chamber in Texas to be executed by lethal injection.

One day in 1997, the Florida electric chair, known as "Old Sparky," malfunctioned. "We had a fire, it was horrible -- we literally burnt him to death," said McAndrew.

McAndrew is still tormented by memories of telling the technician to continue with the electric charge despite the mishap.

"This work is too dirty, we have become barbarians," he told AFP.

Reginald Wilkinson, who once served as director of Ohio's Department of Rehabilitation and Correction, said "it's time... to evolve to a sophisticated society that would allow that life without parole would be a punishment equal to capital punishment."

"I had the responsibility to carry out the law," said Wilkinson, who eventually became an anti-death penalty activist.

Prosecutors, governors -- such as Governor John Kitzhaber of Oregon -- and even judges, such as Supreme Court justice Ruth Bader Ginsburg and fellow retired justices John Paul Stevens and Sandra Day O'Connor, are raising doubts about the death penalty.

"We see new voices, we've seen much change in the leadership, more people are speaking up," said Steve Hall with The StandDown Texas Project, which advocates eliminating the death penalty in the southern state.

According to the non-profit Death Penalty Information Center, the number of executions and death penalty sentences has dropped 75 percent in the past 15 years to its lowest level since 1976, when the death penalty was reinstated in the United States.

And:

"In the US, we have replaced justice with vengeance," said McAndrew. "When it comes to capital punishment, it's very scary, all you need is a person to point his finger at you."

McAndrew still recalls a chance encounter at a Florida airport with a death penalty inmate who had been reprieved and was eventually released.

"He recognized me -- he put his arm around me," said McAndrew. "The last time I saw him, he was in death row in Florida and I was warden.

"I could have possibly extracted this man out of his cell, brought him to the death chamber and put him to death when in fact he was totally innocent. He served almost 20 years for a crime he had not committed."

Earlier coverage of corrections workers voicing their concerns begins at the link.

European Union Steps Up Pressure With New Controls

AP writer Greg Bluestein files, "European Union restricts sale of lethal injection drugs to US, tightening scarce supply."  It's via the Washignton Post.

The European Union said Tuesday it would place new restrictions on the sale of lethal injection drugs to countries that have yet to abolish capital punishment in a move that could worsen a supply shortage that has already delayed some U.S. executions.

The European Commission said Tuesday it would strengthen export controls on the sale of sodium thiopental, a sedative used as part of a lethal injection combination, as well as other drugs that could be used for executions. The commission said it wanted to “prevent their use for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.”

Opponents of capital punishment, who have long pressed European authorities to adopt the restrictions, cheered the decision.

It’s unknown how it will impact U.S. death penalty states. Many states, including Ohio, Texas and Georgia, have switched to an alternative sedative called pentobarbital in hopes of securing a greater supply, and some have sought other overseas suppliers or received the drug from other states.

Tuesday’s decision, which restricts the exports of “short and medium acting” anesthetics such as pentobarbital and sodium thiopental, is the latest move that targets the dwindling supply of lethal injection drugs.

In April, British officials said they would block the export of three lethal injection drugs to the U.S. That same month, an Indian pharmaceutical company that supplied sodium thiopental to Nebraska said it would no longer sell the drug to American prison officials.

In July, Lundbeck Inc., the Danish manufacturer of pentobarbital, said it would try to prevent its drug from being used in executions by requiring distributors to sign an agreement that they won’t sell it for that purpose.

To cope with the scarce supply, many state prison officials have sought to stockpile lethal injection drugs over the past year. But the EU move could make it harder for them to replenish their supplies or replace expiring drugs. It could also force some state officials to consider finding another alternative, a complicated process that could lead to a fresh round of legal challenges.

Death penalty opponents used the announcement to press for broader restrictions that would prevent any European drugs from being used in U.S. executions. Clare Algar, the executive director of the London-based human rights group Reprieve, called it a “positive first step” in the effort.

"Europeans assail U.S. capital punishment by cutting off chemical supply," by Joseph Schuman for Reuters.

U.S. application of the death penalty already has faced setbacks in the American courts and state houses. Now it could be hindered by a decision at the European Commission.

The executive body of the European Union has decided to impose sales limits on a family of anesthetics used by many states to execute prisoners, the Guardian reports. The limits apply to eight barbiturates on the grounds that they are being exported for "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment," according to the Commission. All 34 states with capital punishment execute with lethal injection but Utah - which, in theory, still relies on firing squads. And almost all of them use two of the drugs on the list as part of their lethal cocktails: pentobarbital and sodium thiopental.

The two drugs were already in short supply following Britain's unilateral decision to limit exports to the United States and a decision by the Danish manufacturer of pentobarbital to block sale of its product from American penal institutions. Two years ago, the only U.S. manufacturer of sodium thiopental, Hospira, suspended production because the rest of its business was hurt by association with executions. And states' sedative stocks are running low or passing their expiration dates, while a variety of other problems plague their supply. In Georgia, for example, federal agents last March seized the sodium thiopental because it wasn't imported with the proper license.

BBC News posts, "EU imposes strict controls on 'execution drug' exports."

EU firms wanting to export drugs such as the sedative sodium thiopental will now first have to ensure the product is not going to be used for executions.

The ruling could slow down the rate of executions in the US, where the drug must be used by law in lethal injections but is in short supply.

European rights groups welcomed the restrictions as a "positive step".

The European Commission - the executive arm of the EU - said it wanted to ensure that no drugs were being exported from the union for use in "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment".

The death penalty is banned in all 27 EU states and the bloc has been calling for its abolition worldwide.

"Europe moves to block trade in medical drugs used in US executions," in the Guardian is written by Ed Pilkington in New York.

The European Commission has imposed tough new restrictions on the export of anaesthetics used to execute people in the US, in a move that will exacerbate the already extreme shortage of the drugs in many of the 34 states that still practice the death penalty.

The EC has added eight barbiturates to its list of restricted products that are tightly controlled on the grounds that they may be used for "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment". The eight include pentobarbital and sodium thiopental – the two drugs on which almost all American executions currently depend.

The EC said its move, which follows restrictions introduced unilaterally by the UK in November 2010, was designed to forward the European Union's stated mission to abolish the death penalty around the world. "The decision today contributes to the wider EU efforts to abolish the death penalty worldwide," said the commission's vice president, Catherine Ashton.

The new regulations were welcomed by the UK's business secretary Vince Cable, who pioneered Britain's export controls. "We have led the way by introducing national controls on the export to the United States of certain drugs, which could be used for the purpose of lethal injection. However we have always stated our clear preference for action at EU level and I am pleased that, following our initiative, these steps are now being taken."

Cable added that the new measure would ensure that the UK controls and others like it imposed by individual member states could not be circumvented by the movement of drugs around the EU.

Maya Foa, a lethal injection expert with the human rights group Reprieve who has led the campaign for greater controls on drugs used in US executions, said that the new regulations would be of huge importance both symbolically and practically. "This is going to force the states that still practice the death penalty to reconsider their protocols, and anything that gets them to think carefully about what they are doing has to be a good thing."

"EU Brings 'Execution Drug' Exports Under Strict Control," by RTT News.

The European Commission, executive arm of the EU, said on Tuesday that it wanted to ensure that no drugs were being exported from the 27-member bloc for use in "capital punishment, torture or other cruel, inhuman or degrading treatment or punishment." The EU has banned death penalty in the member-states and is seeking its abolition worldwide.

"EU stops export of lethal injection ingredients," at Deutsche Welle, by David Levitz.

Starting this Wednesday, US states that administer lethal injections will have to look even harder to find a sedative legally required for the practice.

The European Union on Tuesday ratcheted up export controls on sedatives such as sodium thiopental, pinning European exports of the substances to assurances that they will not be used in capital punishment.

"As of today, trade of certain anesthetics, such as sodium thiopental, which can be used in lethal injections, to countries that have not yet abolished the death penalty, will be tightly controlled," a statement from the European Commission said.

A shortage of sodium thiopental, which is no longer produced in the US, has already led to delays and cancelations of executions in five states, according to the US Death Penalty Information Center. The Center reported fewer executions in 2010 over previous years, partly due to the shortage.

"European Commission Extends Control Over Goods Which Could be Used for Capital Punishment or Torture," is the news release issued by the Delegation of the European Union to the United States.  It's via PR Newswire.

The European Commission decided today to extend the list of goods subject to export controls, to prevent their use for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. As of today, trade of certain anesthetics, such as sodium thiopental, which can be used in lethal injections, to countries that have not yet abolished the death penalty, will be tightly controlled. Furthermore, the scope of the European Union regulation has been enlarged to include other products such as spike batons that previously were not prohibited.

"I wish to underline that the European Union opposes the death penalty under all circumstances," said Catherine Ashton, High Representative for the Foreign Affairs and Security Policy and Vice-President of the Commission. "The Charter of Fundamental Rights of the European Union states that no one shall be condemned to the death penalty, or executed. In this regard, the decision today contributes to the wider EU efforts to abolish death penalty worldwide. This is a first step in response to the calls of civil society organizations and the European Parliament to strengthen the EU legislation. It will be followed by a full review of the relevant regulation next year."

Background:

Council Regulation (EU) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment was adopted on June 27, 2005. It comprises an import and export ban for certain goods listed in Annex II and an export control regime for certain other goods listed in Annex III. 

In March 2010, Amnesty International published a report asking for a number of amendments to this Regulation. The European Parliament repeated these requests in a resolution adopted on June 17, 2010. Since then, the Commission has examined possible ways to move forward in order to respond to these calls.

Today, the Commission adopted regulation amending Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. As a result:

• exports of short and medium acting barbiturate anesthetic agents are subject to prior authorization by national authorities;
• imports and exports of spiked batons are prohibited;
• imports and exports of electric shock sleeves and cuffs are prohibited (electric shock belts were already banned before).

The Commission will carry out an in-depth review in 2012 which may result in a proposal for amendment of Regulation 1236/2005 to be adopted by the European Parliament and the Council. The lists of goods may be further amended in parallel, if other goods are identified as needing particular surveillance.

Today's decision will be published in the Official Journal of the EU on December 21.

Earlier coverage of the European Union's new restrictions begins at the link.

Commentary on the Kentucky ABA Assessment

"Place moratorium on Ky. executions," is the title of a Lexington Herald-Leader editorial.  It appeared in the Saturday edition.

The American Bar Association's study of capital punishment in Kentucky is full of disturbing facts, such as:

-  At least 10 of the 78 people sentenced to death since 1976 were represented by lawyers who were later disbarred.

-  Kentucky has inadequate protections against convicting the innocent and permits destruction of evidence while a person is imprisoned, which would make a DNA exoneration impossible.

-  Among jurors, there is a widespread lack of understanding of how they were supposed to weigh the evidence in death penalty cases.

Even supporters of capital punishment, which includes this editorial page, will come away from this study with serious doubts about the fairness and accuracy of the process that condemned 34 people to Kentucky's Death Row.

The study took two years and was overseen by a panel of Kentucky lawyers and law professors, including former Supreme Court justices James Keller and Martin Johnstone.

The ABA, which has no position on the death penalty, has undertaken similar assessments in eight other states, and in five of them recommended a moratorium on executions while flaws in the system were addressed.

The Louisville Courier-Journal carried the OpEd, "Suspend Kentucky executions until system is reformed: Ensuring justice must be our primary concern," written by by William T. (Bill) Robinson III, James E. Keller, and Martin E. Johnstone; all participants in the assessment.

Consider the case of a person convicted and sentenced to die with only the evidence of inadmissible hearsay linking him to the crime. Or the person whose defense counsel consisted of a “semi-retired” volunteer lawyer with a drinking problem and a second lawyer with no experience in trying felony cases. Another egregious case involves a defendant whose lawyers failed to present any evidence that would convince the jury to spare his life, when available evidence would have supported a lesser sentence.

We’re saddened to report that these are not only real death penalty cases in Kentucky, but they’re also all too common. The list of problematic cases is staggering, and review of the system is deeply troubling. Fairness, impartiality and effectiveness of counsel have been undermined by serious flaws that reveal systemic problems in administration of the death penalty in the commonwealth.

Since Kentucky reinstated the death penalty in 1976, 50 of the 78 people sentenced to death have had a death sentence or conviction overturned on appeal due to serious errors or misconduct that occurred at trial.

Most people facing the death penalty are not sympathetic figures. Their alleged crimes are abhorrent and families of the victims experience unfathomable grief. But delivering justice is the foundation of our system — a principle that we must uphold for everyone — even those whose actions are repugnant and even when outraged communities desire to see the ultimate punishment.

And:

We are hopeful that our detailed report and analysis will be a call to action for reform of the death penalty system.In Kentucky, we must reserve capital punishment for the most heinous of offenses and offenders; we have to make sure that we are getting it right. We owe the citizens of this commonwealth no less.

The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Earlier coverage of the ABA's Kentucky report begins at the link.

Bureau of Justice Statistics 2010 Data & Reports Available

"Capital Punishment, 2010 - Statistical Tables" is one of the data sets available.

Presents characteristics of persons under sentence of death on December 31, 2010, and persons executed in 2010. Preliminary data on executions by states during 2011 are included. Tables present state-by-state information on the movement of prisoners into and out of death sentence status during 2010, status of capital statutes, and methods of execution. Tables also summarize data on offender characteristics, such as sex, race, Hispanic origin, and time between death sentence and execution. Data are from the National Prisoner Statistics (NPS-8) series.

Highlights include the following:

• At yearend 2010, 36 states and the Federal Bureau of Prisons held 3,158 inmates under sentence of death, 15 fewer inmates than at yearend 2009.
• Between January 1 and December 19, 2011, 13 states executed 43 inmates, which was 3 fewer than the number executed as of the same date in 2010.
• During 2010, 119 inmates were removed from under sentence: 46 were executed, 20 died by means other than execution, and 53 were removed as a result of sentences or convictions overturned or commutations of sentences.

"Correctional Population in the United States, 2010," is also available.  2010 marks the first time since 1972 that the U.S. prison population has decreased.

Presents statistics on the number of offenders under the supervision of adult correctional authorities in the United States at yearend 2010. Persons supervised by adult correctional authorities include those in the community under the authority of probation or parole agencies that supervise adults and those incarcerated in state or federal prisons or local jails. The report provides the change in the total correctional population, by correctional status, during 2010. It also examines the impact of the changes in the community supervision and incarcerated populations during the year on the change observed in the total correctional population.

A news release announcing the data is, "U.S. Correctional Population Declined For Second Consecutive Year.  Prison population declined for first time in nearly four decades."  Here's an excerpt:

The Bureau of Justice Statistics (BJS) reported today that the number of offenders under adult correctional supervision in the U.S. declined 1.3 percent in 2010, the second consecutive year of decline since BJS began reporting on this population in 1980. At yearend 2010, about 7.1 million people, or 1 in 33 adults, were under the supervision of adult correctional authorities in the U.S.

In addition, the total U.S. prison population fell to 1.6 million at yearend 2010, a decline of 0.6 percent during the year, the first decline in the total prison population in nearly four decades. This decline was due to a decrease of 10,881 in the number of state prisoners, which fell to just under 1.4 million persons and was the largest yearly decrease since 1977. The federal prison population grew by 0.8 percent (1,653 prisoners) to reach 209,771, the smallest percentage increase since 1980.

Most offenders under correctional supervision (about 7 in 10 persons or nearly 4.9 million people) were supervised in the community on probation or parole at yearend 2010. About 3 in 10 (or nearly 2.3 million people) were incarcerated in state or federal prisons or local jails.The decline in the total correctional population during 2010 was mainly due to a decrease in the number of probationers during the year (down 69,500 persons) and a decrease in the number of inmates incarcerated in local jails (down 18,700 persons).  

During 2010, prison releases (708,677) exceeded prison admissions (703,798). The decrease in commitments into state prison, especially the 3.3 percent decrease in the number committed from the courts on a new sentence, was responsible for the decline in the state prison population. The time that offenders entering state prison could expect to serve on a commitment, about 2 years, remained relatively stable between 2009 and 2010, which indicates that the decline in the state prison population during the year was the result of a decrease in admissions.

Half of state departments of corrections reported decreases in their prison population during 2010. California (down 6,213) and Georgia (down 4,207) reported the largest decreases, followed by New York (down 2,031) and Michigan (down 1,365). Illinois (up 3,257) reported the largest increase, followed by Texas (up 2,400) and Arkansas (up 996).

In 2010, the U.S. imprisonment rate dropped to 497 inmates per 100,000 residents, continuing a decline since 2007, when the imprisonment rates peaked at 506 inmates per 100,000 residents. The national imprisonment rate for males (938 per 100,000 male U.S. residents) was about 14 times the imprisonment rate for females (67 per 100,000 female U.S. residents).

Among offender age groups, about 3.1 percent of black males in the nation were in state or federal prison, compared to just under 0.5 percent of white males and 1.3 percent of Hispanic males. Also, an estimated 7.3 percent of all black males ages 30 to 34 were incarcerated with a sentence of more than 1 year.

AlterNet reports, "Are We Moving Towards Reform? For the First Time in 40 Years, U.S. Prison Population Declines."  It's written by Phillip Smith.

In two reports releases last week, the Bureau of Justice Statistics (BJS) announced that for the first time since 1972, the US prison population had fallen from the previous year and that for the second year in a row, the number of people under the supervision of adult correctional authorities had also declined.

And:

Drug offenders accounted for 18% of state prison populations in 2009, the last year for which that data is available. Violent offenders made up 53% of the state prison population, property offenders accounted for 19%, and public order or other offenders accounted for 9%.

In the federal prison population, drug offenders made up a whopping 51% of all prisoners, with public order offenders (mainly weapons and immigration violations) accounting for an additional 35%. Only about 10% of federal prisoners were doing time for violent offenses.

Oregon Expenditures

The Salem Statesman Journal reports, "Haugen: Lots of dollars, no sense? Prosecution, defense tabs total $1.2 million; preparing for execution cost taxpayers $57,000."  It's by Alan Gustafson.

Death-row inmate Gary Haugen describes his capital punishment case as "a cash cow" for attorneys.

He may have a point.

Taxpayers have shelled out more than $1.2 million for attorney fees and other legal costs connected to the tangled case in the past five years.

Additionally, the Oregon Department of Corrections reported Friday that it spent $57,573 preparing for Haugen's recently canceled execution.

The prison agency's costs included $38,201 for lethal injection drugs, travel, training, office expenses, equipment and supplies, plus $19,372 for personnel costs, including overtime, according to the final tally.

And:

On Nov. 22, the day after the Supreme Court refused to block the execution, Gov. John Kitzhaber stepped in and stopped it. Kitzhaber issued Haugen what he called a temporary reprieve and declared a moratorium on executions while he remains in office.

Kitzhaber denounced the death penalty in broad terms, describing it as "an expensive and unworkable system that fails to meet basic standards of justice."

The Democratic governor said he has long regretted allowing Oregon's two most recent executions — those of serial killer Douglas Wright in 1996 and Salem double killer Harry Moore in 1997 — during his first administration.

Kitzhaber noted that some inmates have spent more than 20 years on death row, and that executions only get carried out for so-called volunteers, such as Wright, Moore and Haugen, all of whom dropped their appeals.

"It is a perversion of justice when the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury," he said. "The only factor that determines in Oregon whether someone sentenced to death will actually be executed is that they volunteer to die."

"State spent $1.3 million on lawyers, drugs and preparations for cancelled execution," by Helen Jung for the Oregonian.

The state Department of Corrections paid $57,573.64 for lethal drugs, training, overtime and other expenses as it prepared for a now-canceled execution of death row inmate Gary Haugen.

It's one piece of more than $1.3 million the state has spent since 2007 in trying to put Haugen to death for killing fellow inmate David Polin at the Oregon State Penitentiary.

Earlier coverage from Oregon begins at the link.

In Maryland - Cost & Capital Punishment

The Washington Post reports, "O’Malley weighs budget restriction on death penalty."  It's written by John Wagner.

Maryland Gov. Martin O’Malley (D), a long-time death penalty opponent, in recent months has considered using the state budget to block executions in the coming fiscal year.

The “idea of defunding executions” was discussed in a July meeting that included O’Malley and Del. Samuel I. Rosenberg (D-Baltimore), a leading death penalty foe in the legislature, according to O’Malley’s scheduling records.

In an interview, Rosenberg confirmed the meeting took place and said he and the governor had a “positive discussion” about the concept, which would apparently prevent the state from carrying out executions due to budget restrictions.

Rosenberg said O’Malley made no commitments at the time, and on Monday night, an O’Malley aide said the the governor remains unconvinced he should take that approach.

“It’s not likely that the governor will do that, but no final decision has been made,” said O’Malley spokeswoman Raquel Guillory.

O’Malley, who must present a budget proposal to the General Assembly next month, unsuccessfully lobbied the legislature to repeal the death penalty during his first term. In 2009, lawmakers instead passed a bill tightening evidentiary standards in capital cases.

House Minority Leader Anthony J. O’Donnell (R-Calvert) said a budget provision on the death penalty would be unacceptable.

Earlier coverage from Maryland begins at the link.  Maryland currently has a moratorium on executions because no lethal injection regulations are in place.

Long-Contested Alabama Death Sentence Overturned

The 11th Circuit Court of Appeals ruling in Magwood v. Alabama is available in Adobe .pdf format.

"Court overturns death sentence in Coffee County Sheriff's murder," is the AP report via the Dothan Eagle.

A federal appeals court on Monday overturned the death sentence of an Alabama inmate for the 1979 shooting death of a county sheriff.

Billy Joe Magwood, 60, was on death row at Holman Prison in Atmore for more than 30 years for killing Coffee County Sheriff Neil Grantham.

The 11th U.S. Circuit Court of Appeals said Alabama's law at the time did not make killing a law enforcement officer a death penalty offense. Magwood had argued that the law was later changed to make such a killing an aggravating offense for jurors to use in determining if a death sentence was warranted.

And:

Officials in the Alabama Attorney General's office had not decided Monday if they would appeal the ruling to the U.S. Supreme Court. Under Alabama law, Magwood's sentence will become life in prison without the possibility of parole if the ruling stands.

According to Alabama Department of Corrections records, Magwood has been on death row since June 30, 1981. The only inmate who has been on death row longer in Alabama is Arthur Lee Giles, who has been there since 1979.

"Alabama cop-killer wins another appeal," by Warren Richey for the Christian Science Monitor.

“Based on a clear reading of Alabama law, we conclude that Magwood was not eligible for the death penalty,” the 11th US Circuit Court of Appeals said.

The three-judge panel said Magwood was entitled to receive a new, non-capital sentence because his death sentence violated the fair-warning requirement of the Constitution’s due process clause.

Magwood is one of 198 inmates on Alabama’s death row. He’s been there more than 30 years, longer than all but two other death-row inmates.

The appeals court ruling follows a June 2010, 5-to-4 decision by the US Supreme Court, remanding the Magwood case to the lower courts so he could be resentenced. State prosecutors objected, once again, and appealed to the 11th Circuit.

It was that appeal that the 11th Circuit rejected on Monday.

And:

The problem with his death sentence was that Alabama law required judges to weight aggravating and mitigating circumstances before imposing a death sentence. The law required the sentencing judge to cite which aggravating factor – specifically listed in the Alabama statute – applied to the convicted murderer.

There were no aggravating factors in the statute that applied to Magwood’s circumstances. But by the time of Magwood’s trial in 1981, the Alabama Supreme Court had ruled that the murder of an on-duty sheriff because of his official acts qualified as an aggravation sufficient to justify a death sentence.

The sentencing judge cited the state supreme court’s decision and applied it to Magwood.

In the appeal, Magwood’s lawyers argued that the sentencing judge acted unfairly by relying on a new interpretation of Alabama law in 1981 that did not exist two years earlier in 1979 when Magwood committed his crime.

Earlier coverage of the case begins at the link.

Texas Juries Choosing Life Without Parole

That's the title of an editorial in today's Austin American-Statesman.

Whatever the reason for the decline in the number of executions in Texas, it is welcome news.

According to statistics released last week, death sentences in Texas are at an all-time low. As the American-Statesman's Mike Ward reported last week, Texas juries are increasingly choosing life without parole, an option that has been available to them since 2005.

Ward reported that Texas Department of Criminal Justice figures show that 13 convicts were executed in 2011. That compares with 17 in 2010 and 26 in 2007. In 2000, a record 40 convicts were executed.

There is disagreement between death penalty opponents and supporters as to the reasons for the decline. Opponents say Texas is joining the national drift away from the death penalty.

There were 43 executions nationwide, a 50 percent decline from a decade ago when 85 executions were reported.

"Texas — along with the rest of the nation — is steadily moving away from the death penalty," commented Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, which issued a report on the death penalty statistics.

Death penalty supporters cite an aging population and a tough economy for the decline.

And:

Whether Texas juries are opting for life without parole because of growing distaste for the death penalty or for demographic and/or economic reasons is literally academic. The fact is, that Texas juries are using it just as polls indicated they would when the Legislature was again debating the bill, authored by state Sen. Eddie Lucio, D-Brownsville, in 2005. It took him three sessions to get it passed.

Texas prosecutors fought the bill, but State Sen. Steve Ogden, R-Bryan, changed his vote and cleared the way for a full vote by the Senate in 2005. The Senate passed the bill on a 25-6. The bill cleared the House on a 104-37 vote.

Though popular on both floors, the bill almost died in both Senate and House committees. Ogden's vote to move the bill to the full Senate was an act of courage. As it turns out, his vote opened an option for Texas juries that had long been denied — and they are using it.

Texas News Service reports, "Fallible Justice System Erodes Support for TX Death Penalty."  It's written by Peter Malof.

Monday's official exoneration of Michael Morton - after serving 25 years in a Texas prison for a murder he did not commit - is just the latest example of a fallible criminal justice system, and one more reason the public is growing increasingly wary of capital punishment, according to Kathryn Kase, a death-penalty lawyer who directs the Texas Defender Service's Trial Project.

Kase thinks public sentiment is approaching a tipping point, reflected, in part, by a sharp decline in Texas executions in 2011.

"Texas hit a 30-year low in new death sentences; we had only eight. We hit a 15-year low in executions; we had only 13. And Texans are having a growing problem with the death penalty."

Recent polls indicate support for capital punishment has dropped nearly 20 points nationwide in the last couple of decades, with a slim majority now preferring to see life sentences without parole. Since Texas began allowing juries to use that option in 2005, Kase says courts have increasingly embraced it as a less-expensive alternative.

The Texas Coalition to Abolish the Death Penalty issued "Texas Death Penalty Developments in 2011: The Year in Review," last week.  It's available in Adobe .pdf format; news coverage of the report is also available.  More from Kathryn Kase at Texas Defender Service is at the link.

What's Next for Michael Morton

Attorneys for Michael Morton filed a "Report to Court" with exhibits; both available in Adobe .pdf format.  Morton is asking for a court of inquiry to examine possible prosecutorial misconduct in his case.  The State Bar of Texas is already looking into the mattter.

"Charges against Morton formally dismissed; inquiry sought on prosecutor's actions," is the title of Chuck Lindell's latest report in today's Austin American-Statesman.

Michael Morton completed one leg of his legal journey Monday when a judge formally dismissed his murder charge, declaring him innocent of the crime that cost him almost 25 years in prison.

But District Judge Sid Harle delayed a decision on Morton's second request: that a special court examine allegations that his prosecutor, Ken Anderson, broke several laws by concealing evidence before, during and after Morton's trial.

Harle said he needed more time to review the request to convene a court of inquiry, an ad hoc, fact-finding process often used when the actions of a public official have been called into question.

A decision is not expected before year's end because Harle also offered Anderson, now a Georgetown district judge who has repeatedly denied allegations of misconduct in Morton's 1987 trial, a chance to file briefs opposing the inquiry.

The state's highest criminal court has already voided Morton's conviction in the murder of his wife, Christine Morton, who was beaten to death while lying in bed in their southwestern Williamson County home.

But Harle's signature Monday on the motion to dismiss charges formally released Morton from the murder case and brought the hearing to a close with a standing ovation from a packed courtroom.

"What befell you and your family many years ago was a horrendous tragedy," Harle said, commending Morton for never giving up his fight for innocence, even when he was offered a chance at parole if he accepted responsibility for his wife's murder.

And:

To call for another district judge to lead a court of inquiry, Harle would have to agree that there is probable cause that Anderson violated Texas law in his handling of the case. If the court is convened, Anderson would not be a defendant. Instead, the judge would attempt to determine, using affidavits and courtroom testimony, whether laws were broken.

Most of Monday's hearing was devoted to a 140-page report detailing the results of a defense-led investigation begun after Morton's release from prison in early October.

Morton lawyer Barry Scheck, co-founder of the Innocence Project in New York, told Harle that the investigation's findings strongly suggested that Anderson concealed several pieces of evidence from Morton's trial lawyers in violation of two state laws: tampering with physical evidence, a felony punishable by up to 10 years in prison that includes concealing "any record or document," and intentionally concealing a government record, a misdemeanor punishable by up to a year in jail.

Brandi Grissom posts, "Cleared of Murder, Morton Seeks Accountability," for the Texas Tribune.

A beaming Michael Morton kissed the piece of paper he had been waiting nearly 25 years for on Monday after Judge Sid Harle stepped down from the bench, shook his hand and gave him the order that officially cleared him of his wife’s 1986 murder.

"This is a happy day, obviously," Morton said after the court proceeding, his voice quaking. "But let's not forget this was a horrible crime. My wife's brains were splattered all over the bedroom, the ceiling."

Murder charges against the former grocery store manager were formally dismissed on Monday. Morton spent a quarter century behind bars for a crime that DNA evidence revealed this year he did not commit, and he was released from prison in October.

For Morton, though, the day full of hugs and happiness was not just about freedom. It was also about holding accountable the prosecutor who he alleges withheld evidence that could have led to his acquittal back in 1987. Morton and his lawyers asked Harle, a Bexar County state district judge, to launch an unprecedented court of inquiry to determine whether Ken Anderson broke state laws and violated professional ethics codes by withholding evidence when he prosecuted Morton.

And:

They argue that Anderson concealed police reports that Judge William S. Lott ordered him to disclose during the 1987 trial so that he could determine whether they might help Morton’s case. Lott found nothing exculpatory in the few pages he was provided by Anderson and ordered the record sealed.

When a different judge ordered the record unsealed in August, Morton’s lawyers discovered that Anderson had provided very few of the available police reports. Crucial pieces of evidence were missing, including a transcript of a telephone conversation between a sheriff’s deputy and Morton’s mother-in-law in which she reported that her 3-year-old grandson had seen a “monster” — who was not his father — attack and kill his mother. 

Police reports from Morton’s neighbors were also missing. They told police they saw a man in a green van park near their home and walk into the woods behind their house. Gone from the file, too, were reports that Christine Morton’s credit card had been used and a check with her forged signature cashed after her death.

When Harle freed Morton based on the DNA evidence in October, he also authorized an unusual process that allowed his defense lawyers to investigate Anderson's conduct. The lawyers deposed the lead sheriff’s investigator, an assistant district attorney who worked with Anderson and the former prosecutor himself.

The AP report is, "Wrongfully imprisoned man wants probe," by Juan A. Lozano.  It's via the Lubbock Avalanche-Journal.

A man wrongfully imprisoned for nearly 25 years for his wife’s murder said Monday that revenge isn’t his motive for seeking an investigation of the prosecutor he and his attorneys believe concealed evidence at his trial.

“A lot of people think I want a pound of flesh,” said Michael Morton, who was freed after new DNA evidence tied another man to the crime. “Revenge is a natural instinct, but it’s not what I’m looking for here, just accountability.”

Morton, 57, spoke Monday after a court hearing in which his attorneys presented findings from a blistering 138-page report in which they accuse the prosecutor in his case of committing “serious acts of misconduct.” The report asks state District Judge Sid Harle to assemble a special court of inquiry to investigate former prosecutor Ken Anderson on charges he disregarded an order at the original trial to turn over all evidence that could have supported Morton’s claims of innocence. The report also accuses Anderson of tampering with evidence and court records.

Fighting back tears, Morton said although his false imprisonment cost him a quarter century of his life and the chance to enjoy his son’s childhood, Monday was a “happy day” because he was able to ask a judge to investigate the allegations against Ken Anderson, who is now a state district judge.

And:

Morton’s attorneys also recommended several policy reforms for lawmakers to consider, including having the Texas Legislature hold hearings on simplifying rules for turning over evidence that could point to a defendant’s innocence.

"‘Extraordinary Legal Event’ Unfolds as Man Exonerated of Wife’s Murder Seeks to Hold DA Accountable,"
by Martha Neil at the ABA Journal.

If given the green light by Judge Sid Harle, a visiting jurist from Bexar County who took over the Morton case in August, the inquiry would apparently be the first of its kind concerning any of the more than 200 inmates nationwide who have been exonerated, like Morton, due to DNA evidence, according to the Times.

“I haven’t seen anything like this, ever,” law professor Bennet L. Gershman of Pace University told the newspaper. “It’s an extraordinary legal event.”

Anderson says he did nothing wrong and has questioned the authority of the court to investigate his work as a prosecutor so long ago.

Yesterday's New York Times carried, "Exonerated of Murder, Texan Seeks Inquiry on Prosecutor," by John Schwartz and Brandi Grissom.

Mr. Morton, who was a manager at an Austin supermarket and had no criminal history, was charged with the beating death of his wife, Christine, in 1986. He had contended that the killer must have entered their home after he left for work early in the morning. But Mr. Anderson convinced the jury that Mr. Morton, in a rage over his wife’s romantic rebuff the previous night — on Mr. Morton’s 32nd birthday — savagely beat her to death.

Mr. Morton was sentenced to life in prison. Beginning in 2005, he pleaded with the court to test DNA on a blue bandanna found near his home shortly after the murder, along with other evidence.

For six years, the Williamson County district attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. In 2010, however, a Texas court ordered the DNA testing, and the results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA of another man: Mark A. Norwood, a felon with a long criminal history who lived about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton had spent nearly 25 years in prison.

Mr. Norwood has been arrested and charged in Mrs. Morton’s death and is a suspect in a similar murder from 1988.

And:

In an interview, Mr. Scheck said he hoped the court of inquiry proceeding would result in changes in law and policy that could promote greater fairness in criminal cases. Previous high-profile exonerations, he said, have led to new laws that improved access to DNA testing after conviction and provided generous compensation to those who were wrongfully convicted.

“This is one of those catalytic, iconic cases that leads to reform,” he said.

Earlier coverage of Michael Morton's exoneration begins at the link.

The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.  Related posts are in the prosecutorial misconduct index.

An Update From California

"California's new lethal injection protocol tossed by judge," is the title of Carol J. Williams Los Angeles Times report.

A judge on Friday threw out California's new lethal injection protocols, which have been five years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.

In ruling that the new protocols were "invalid," Marin County Superior Court Judge Faye D'Opal noted that one of the state's own experts recommended the single injection method as being superior to the three-drug sequence approved last year.

State officials now must decide whether to appeal D'Opal's ruling or again revise the lethal injection procedures that were deemed unconstitutional by a federal judge in 2006. The ruling — at least for now, experts say — appears to halt a federal judge's review of whether the changes to the state procedures are sufficient to allow executions to resume after a six-year suspension.

D'Opal criticized the state for ignoring many requirements of the law on revising official procedures, saying that officials failed even to explain why they rejected the one-drug method.

The legal challenge to the revised procedures was brought by condemned inmate Mitchell Sims, who has been on death row for 24 years for the 1985 killings of three Domino's pizza employees, including a deliveryman in Glendale. Sims is one of only a dozen among California's 722 condemned inmates who have exhausted all appeals and are eligible for a death warrant.

Atty. Gen. Kamala D. Harris' spokeswoman, Lynda Gledhill, said the question of whether to appeal was still under review and that a decision would probably be guided by "what our client wants to do," referring to the California Department of Corrections and Rehabilitation.

Department spokeswoman Terry Thornton said corrections officials had no immediate comment.

"Judge rejects officials' new rules for executions," by Bob Egelko in the San Francisco Chronicle.

The ruling strengthens a freeze that state and federal courts have imposed on executions in California since the last one took place in January 2006.

U.S. District Judge Jeremy Fogel of San Jose ruled later in 2006 that lethal injections, conducted in a dimly lit chamber by poorly trained and monitored staff, posed an undue risk of a botched execution and a prolonged and agonizing death, in violation of constitutional standards.

Prison officials rewrote their procedures but were sent back to the drawing board in November 2007 by another Marin County judge, who said they had failed to seek public comments, as the law required. After an unsuccessful appeal, officials held hearings and revised the regulations again - but they'll have to start over unless a higher court overturns D'Opal's ruling.

Department spokesman Jeffrey Callison said no decision has been made yet on whether to appeal.

After state officials pass valid regulations, they still must convince a newly assigned federal judge, Richard Seeborg, that the new rules eliminate the risk of cruel and unusual punishment cited by Fogel. State lawyers recently told Seeborg they won't be ready for a hearing until late next year.

The AP filing is, "Marin judge rejects lethal injection procedures," by Paul Elias, via the Oakland Tribune.  It's also available via the San Jose Mercury News.

A judge tossed out California's newly adopted lethal injection procedure on Friday, throwing the state's already stalled capital punishment system into further doubt.

Marin County Superior Court Judge Faye D'Opal, finalizing a tentative ruling she issued a day earlier, said prison officials failed to properly explain why they rejected a one-drug process using only a barbiturate when one of their experts recommended it as being superior to the three-drug mixture that was adopted to execute inmates. The judge wrote that critics of the three-drug lethal injection submitted comments to the department saying one of those three drugs -- pancuronium bromide -- "is unnecessary, dangerous, and creates a risk of excruciating pain."

"Today the court struck down California's three-drug lethal injection protocol because it was enacted in violation of California law," said Sara Eisenberg, an attorney for Mitchell Sims, the condemned inmate who filed the lawsuit challenging the new, three-drug procedure.

"California judge throws out state's lethal injection procedure," by Julie Small of KPCC-FM for Southern California Public Radio.

Marin County Superior Court Judge Faye D’Opal says the state Department of Corrections and Rehabilitation failed to properly explain why it rejected the use of a single barbiturate as an alternative to California’s three-drug lethal injection method.

Attorney Sara Eisenberg persuaded the judge that prison officials had violated California law. "They never explained why they retained the three-drug protocol instead of switching to a single drug protocol that many other states are switching to, that their own internal consultant recommended, and that many members of the public, including medical professionals, recommended."

"Judge rejects California's death-penalty procedure," at CNN.

California's use of a three-drug combination in executing prisoners was declared invalid Friday by a Marin County judge, who ruled that a one-drug method should have been considered.

"The failure to discuss the one-drug method is a particularly significant omission, since use of a barbiturate-only protocol was raised by at least one commenter," wrote Marin County Judge Faye D'Opal in a nine-page ruling, referring to concerns raised during a public-comment period. Citing one of the three drugs used in the combination, she added, "several commenters make the identical assertion that use of pancuronium bromide is unnecessary, dangerous, and creates a risk of excruciating pain." Pancuronium bromide is a painkiller and muscle relaxant that induces paralysis.

D'Opal further noted that the Department of Corrections failed "to provide a sufficient rationale for rejecting these alternatives" and failed to explain "why a one-drug alternative would not be as effective or better than the adopted three-drug procedure."

The challenge decided by the state court was filed in August 2010 on behalf of inmate Michael Sims, who has been on death row for more than 20 years, according to his attorney Sara Eisenberg. She summarized the decision by saying that the current regulations approving the use of the three-drug mix "are invalid."

Earlier coverage of California lethal injection issues begins at the link.

Doubts on the Death Penalty

That's the title of a Los Angeles Times editorial reflecting on the DPIC end-of-year report.  It's subtitled, "Even though the majority still support capital punishment, the percentage in favor is declining in the U.S. It's about time."  It appeared in the Saturday paper and leads continued news and commentary on report.

Back in September, much was made of the crowd's reaction at a GOP presidential debate after moderator Brian Williams noted that Texas Gov. Rick Perry had overseen more executions than any governor in modern times, and spectators burst into applause. Liberal pundits saw this as an example of the callousness of GOP voters, but we were more disturbed by the callousness on exhibit from Perry.

And:

We bring this up now, three months after the debate in question, because new data have emerged showing that despite a certain bloodthirsty element in some parts of the conservative base, support is steadily eroding for the ethical, legal and financial morass that is capital punishment. The Death Penalty Information Center's annual report on capital punishment in America, released Thursday, showed that executions continued to drop in 2011, to 43; that's down from 85 in 2000 and 46 last year. More significantly, the number of death sentences across the country fell dramatically this year, to 78 from 112 in 2010. And perhaps most significant of all, the percentage of Americans who say they support the death penalty, which was 80% in 1994, fell to 61%, the lowest ever.

In California, one number in particular stands out: There were only 10 people sentenced to death in the Golden State in 2011, compared with 29 last year. That may be a statistical anomaly, or it may indicate that prosecutors and courts are finally concluding, correctly, that death sentences have become largely pointless; legal complications have prevented anyone from being executed here since 2006. A continuing conflict over the state's method for lethal injection and a shortage of a key drug often used to perform it, mean this situation won't be resolved any time soon.

Yes, a majority of Americans still favor capital punishment. But the approval curve is heading in the right direction — downward — providing reason to hope that as our society evolves, the death penalty will die off.

The Houston Chronicle reports, "Capital punishment 'on the defensive'."  It's written by Mike Tolson.

America's enthusiasm for capital punishment - once a staple of electoral politics and a perennial hot topic in discussions of the criminal justice system - continued its decade-long decline this year, according to the annual report of the Death Penalty Information Center.

The number of new death sentences imposed by juries in 2011 fell below 100 for the first time since the reinstatement of capital punishment in 1976. Total executions dropped to 43, three-quarters of those in the South.

Just a decade ago, juries around the country returned more than 200 death sentences. But in 2011 the total reached only 80. Although the tabulations were made before year's end, capital murder trials rarely are held in the last two weeks of December.

"The bottom line is the death penalty is on the defensive," said Richard Dieter, director of the DPIC, an information clearing house that opposes capital punishment. "This year was a real strong drop. If it was only this year, that would be a fluke, but coupled with other years and measures, it reflects a real concern about the death penalty."

And:

Most states, including Texas, now allow juries to impose life-without-parole sentences. Experts agree that this sentencing option has had a big impact. For one thing, it potentially makes it easier for a jury to compromise in cases where some may be uncomfortable with imposing death. Of perhaps greater significance is the influence it has on prosecutors, who now have a palatable alternative.

Prosecutors in key jurisdictions such as Harris and Dallas counties who were unabashed fans of the death penalty have retired or are no longer in office. Those in charge now are more selective. Legendary Harris County District Attorney Johnny Holmes used to say he pursued death in any murder case where he believed a jury would return the sentence, which helped establish Houston's nationwide reputation as the "capital of capital punishment." Pat Lykos, the current DA, has said repeatedly that her office will seek death "where appropriate." Since she took office in 2009, the county has sent six defendants to death row.

The Saturday evening edition of NBC Nightly News carried Pete Williams' report, "Death penalty is dying out."

 

Visit msnbc.com for breaking news, world news, and news about the economy

"Decrease in U.S. Executions Points to Eventual Abolishment, Says W&L Law Professor," by Peter Jetton is at the Washington & Lee University website.

The steady downward trend in the use of the death penalty in the United States represents a "fairly irreversible decline" and suggests a time when the death penalty will be abolished, says David Bruck, a Washington and Lee University law professor.

Statistics released this week by the Death Penalty Information Center indicate that the number of executions in the U.S. has decreased by 75 percent since 1996 and is at its lowest level since capital punishment was reinstated in the United States in 1976.

Bruck, clinical professor of law at W&L and director of the Virginia Capital Case Clearinghouse, cites several reasons for the decline.

States that still use the death penalty, he says, now provide an option for juries to sentence defendants to life imprisonment without parole. And, he adds, juries that do sentencing in capital cases must be told about that option.

"So juries understand that society is protected either way and the death penalty is generally not necessary as a way of protecting society against dangerous murderers," said Bruck.

Another reason for the decline, in Bruck's view, involves the number of people on death row who have been shown to be convicted in error, sometimes by use of DNA testing.

"Since the 1990s, the American public has received something of a shock about the fallibility of the criminal justice system," he said. "For a long time, it was thought that the only mistakes the system ever made was failing to convict or failing to imprison dangerous people.

Alabama's Birmingham News carries, "Use of death penalty drops, but not in Alabama," by Esther Brown of Project Hope to Abolish the Death Penalty.

Nationwide, death sentences dropped to 78 in 2011. This is the first time since the U.S. Supreme Court reinstated capital punishment in 1976 that the courts have imposed fewer than 100 death sentences in a given year, according to the Death Penalty Information Center's Year End Report. Death sentences have declined about 75 percent since 1996, when 315 individuals were sentenced to death. Not in Alabama.

Executions were also down around the country, with 43 in 2011 and 46 in 2010, representing a 56 percent drop since 1999, when there were 98. But not in Alabama.

Even Texas experienced a 46 percent decline in executions over the past two years. The Lone Star State carried out 13 executions in 2011 and 24 in 2009. In the same period, Alabama's execution rate increased.

And:

Alabama should stop and listen. I am very tired of saying "and then there is Alabama."

The DPIC report, "The Death Penalty in 2011: Year End Report," is available in Adobe .pdf format.  News coverage and commentary on the report begins at the link.

News Coverage of the TCADP Report

"Texas executions, death sentences continue to decline," is the title of Mike Ward's report in today's Austin American-Statesman.

Executions in Texas, which has operated the busiest death chamber in the United States for years, have fallen to their lowest level in 15 years, new statistics showed Thursday.

In fact, Texas' new death sentences — which account for 30 percent of executions nationally — remained at an all-time low set last year as more juries imposed life without parole instead.

Victim rights advocates said the decline can be traced to an overall decrease in crime and concerns about the cost of litigating executions, while death penalty opponents attributed it to increasing public discomfort with executions amid concern about wrongful convictions and discrimination against racial minorities.

According to Texas Department of Criminal Justice statistics, 13 convicts were executed in 2011, compared with 17 in 2010 and 26 in 2007. A record 40 convicts were executed in 2000.

"Texas — along with the rest of the nation — is steadily moving away from the death penalty," said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, which issued a report on the death penalty statistics.

Nationwide, 43 people were executed this year, a 50 percent decline from 10 years ago, when 85 were executed.

In the past year, prison statistics show, Texas' death row received only eight new convicts, the same as 2010 and the lowest number since the U.S. Supreme Court reinstituted the death penalty in 1976. In 1999, the population of Texas' death row ballooned by 48.

"Use of the death penalty has been relegated to just a few jurisdictions in the state as prosecutors and jurors accept alternatives that protect society and punish those who are truly guilty," Houlé said. "Still, long-standing concerns about the arbitrary and biased administration of the death penalty remain."

And:

In the past three years, crime rates in Texas and across the nation have generally dropped, as has the prison population in many states. Texas' convict count is down slightly, allowing officials four months ago to close the first prison in state history.

Statistics show that since the Legislature enacted a life-without-parole law six years ago, the number of prisoners given that sentence has increased as the number of death sentences has generally declined. Through November, 398 convicts were in prison with no chance of parole — some who might otherwise have received the death penalty.

"Fewer Execution, Death Sentences in Texas," by Ian Crawford at KUT-FM.

The state of Texas executed 13 people in 2011. A report issued by the Austin-based Texas Coalition to Abolish the Death Penalty this morning says that’s the fewest since 1996 and well below the record of 40 executions set in 2000.

Kristin Houlé is the coalition’s executive director. She says one reason for the decreased number of executions is that five death row inmates received stays of execution this year.

“These includes two cases where there remains doubt,” Houlé told KUT News. She noted the case of Hank Skinner, who had a November execution date stayed by the Texas Court of Criminal Appeals while that panel determines whether changes in DNA testing laws would affect his case.

Houlé also says the report shows a 70 percent decrease in the number of death sentences handed out by Texas juries since 2003. Only eight death sentences were issued this year, the same number as last year. She thinks the Skinner case and the case of Cameron Todd Willingham has played a role in the decrease in death penalty sentences.

Coverage of the TCADP end-of-year- report begins at the link.  "Texas Death Penalty Developments in 2011: The Year in Review," is available in Adobe .pdf format.  TCADP has also provided a map of new Texas death sentences issued between 2007-2011.

A California Lethal Injection Update

"Judge plans on tossing California's death penalty," is the AP report by Paul Elias, via the Sacramento Bee.  It's also available from the San Francisco Chronicle and ABC News.

A Marin County judge will decide Friday whether to finalize his decision to toss out California's newly adopted lethal injection procedure after he ruled prison officials failed to properly adopt the state's new procedures for lethal injection execution.

In a tentative ruling Thursday, Marin County Superior Court Judge Faye D'Opal found prison officials failed to properly consider a one-drug alternative to the three-drug lethal injection cocktail used to execute inmates.

Attorneys representing the California Department of Corrections and Rehabilitation will get a chance to change the judge's mind during a hearing Friday morning.

CDCR spokeswoman Terry Thornton said Thursday the department was reviewing the lengthy ruling and declined to comment.

If the judge upholds his ruling, it would throw California's stalled capital punishment system into further doubt.

Prison officials would either have to appeal or again revise their lethal injection procedures and submit them to public comment, a process that took more than a year last time.

It also could become the second court ruling barring executions in California. A federal judge imposed a de facto moratorium on executions in 2006 after finding the lethal injection process flawed in the state.

One of the state's responses to that finding was to adopt the new regulations, which D'Opal' s tentative ruling said was severely deficient.

D'Opal said that prison officials failed to properly explain why they rejected a one-drug process using only a barbiturate, even though one of their experts recommended it as being superior to the three-drug cocktail CDCR adopted. The judge wrote that critics of the three-drug lethal injection submitted comments to the CDCR saying that one of those three drugs - pancuronium bromide - "is unnecessary, dangerous, and creates a risk of excruciating pain."

D'Opal said that the CDCR also failed to disclose the costs of executions, all of which are conducted at San Quentin Prison in Marin County.

And:

The lawsuit challenging the new regulation was filed last year by Mitchell Sims, a condemned inmate convicted of killing a 21-year-old pizza deliveryman in 1985. Sims had killed two other Domino's Pizza employees four days earlier in South Carolina. He's also sentenced to die in that state.

Sims filed his lawsuit on behalf of other death row inmates like him who exhausted all their appeals and were at the head of the execution line. At least 12 inmates are in similar situations.

Sims said the new regulations were improperly drafted and violated a California law requiring detailed explanations and public comments on the changes.

Prison officials drafted those new regulations in response to a federal lawsuit filed by condemned inmate Michael Morales, who alleged that California's lethal injection process amounted to cruel and unusual punishment. A federal judge in 2006 ordered the CDCR to revamp California entire execution process.

Besides the new regulations, the CDCR also constructed a new death chamber designed specifically for lethal injections. Prison officials previously were using the old gas chamber at San Quentin for lethal injections, which the federal judge found to be too cramped, dark and antiquated.

Earlier coverage of California lethal injection litigation begins at the link.

Texas CCA Orders Atkins Evaluation in Two Cases

The Court of Criminal Appeals rulings in Ex Parte Butler and Ex Parte Matamoros are available in Adobe .pdf format.

Brandi Grissom posts, "Appeals Court Orders Re-evaluation of 2 Death Row Cases," at Texas Tribune.  Here's an extended excerpt:

The Texas Court of Criminal Appeals on Wednesday ordered lower courts to review two death penalty cases that involved a psychologist who was reprimanded earlier this year for using questionable methods to determine whether defendants were intellectually competent enough to face capital punishment.

"What we're seeing is a growing awareness on the part of the Court of Criminal Appeals for scientific integrity in criminal cases," said Kathryn Kase, interim executive director of the Texas Defender Services, which represents death row inmates. "The evidence of retardation in both of these cases is pretty compelling."

The state's highest criminal court sent the cases of Steven Butler and John Matamoros back to Harris County courts to re-evaluate the evidence used to sentence the two men to death. Dr. George Denkowski examined both of the men and told the juries they did not suffer from mental retardation.

In April of this year, the Texas State Board of Examiners of Psychologists (TSBEP), issued a reprimand against Denkowksi, whose methods were widely criticized. Denkowksi agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him. The psychologist admitted no wrongdoing and defended his practice. But defense lawyers were hopeful that the reprimand would prompt the courts to review other cases where juries relied on Denkowski's evaluations to hand down death sentences.

Denkowski evaluated 14 inmates who are now on Texas’ death row — and two others who were subsequently executed — and found them intellectually competent enough to face the death penalty.

The U.S. Supreme Court ruled in 2002 that states cannot execute mentally handicapped people. The court, though, left it to the states to create guidelines for determining whether a person is mentally handicapped. Texas courts have generally adopted a three-part definition that requires the convicted inmate to have below average intellectual function, lack adaptive behavior skills and to have had those problems from a young age.

Prosecutors regularly relied on Denkowski to perform psychological evaluations to determine whether a murder suspect would be eligible for execution. But in 2009, other psychologists and defense lawyers complained to the TSBEP that Denkowski used unscientific methods that artificially inflated intelligence scores to make defendants eligible for the death penalty.

And:

Kase said she hoped the court would also order re-evaluation of the other death penalty cases in which Denkowski examined the defendants. 

"Exonerations, I think, have caused the court to become concerned about the integrity of forensic evidence," she said. "That’s really, really important here, where the decision about whether someone has retardation is a matter of life and death."

Earlier coverage of the Denkowski sanction begins at the link.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts are in the mental retardation index.

Europe and Lethal Injection Drugs

Time publishes, "Europe to Ban Sale of Vital Lethal Injection Drug to U.S."  It's written by Guido Bohsem for the German publication Süddeutsche Zeitung.  The translation is via Time's partnership with Worldcrunch.

The European Union is set to restrict the sale to the United States of one of the main active substances needed for lethal injections. According to information obtained by the Süddeutsche Zeitung, the export of sodium thiopental will only be possible by special permission, beginning Friday, posing a major problem for the US justice system.

The Official Journal of the European Union (OJ) is to publish a new, uniform set of authorized export regulations, valid for all short or intermediate-acting barbituric acids. One of them is the easy-to-use and fast-working anesthetic sodium thiopental, which is used to execute criminals in the states of Ohio and Washington. In 33 other states, sodium thiopental is a key ingredient in other toxic cocktails used to kill inmates.

And:

Anti-death penalty and other human rights groups have pushed for the EU decision to now require special permission to export to countries outside of Europe. The most prominent supporter of the move is Germany's Minister of Economy and head of the Free Democratic Party (FDP), Philipp Rösler. In an earlier role as Minister of Health he had written to German manufacturers of sodium thiopental to encourage them not to sell the drug to the US.

After changing jobs, he introduced to the Commission a bill to create a regulation valid Europe-wide that would effectively prevent the export of thiopental to the US. Initially, the proposal met with resistance from other states, but it has now been approved by the majority of the 27 member states.

Earlier coverage of the European Union action begins at the link.

Coverage of the Ohio Legislative Hearing

"Writer of death penalty law: It's not working," is the updated AP report by Andrew Welsh-Huggins.  It's via the Lancaster Eagle Gazette.

A Supreme Court justice who helped write the state's death penalty law testified Wednesday that the law isn't working and should be scrapped.

Justice Paul Pfeifer said the law was meant for the worst offenders but has been used more haphazardly through time.

"The statute does not work the way we expected," Pfeifer told the House Criminal Justice Committee. "What has enfolded is an application that is hit or miss depending on where you commit the crime and the attitude of the prosecutor in that county."

Pfeifer, a moderate Republican, urged the committee to approve a bill that would scrap the 30-year-old law. He said laws enacted in 1996 and 2005 that provide the option of life in prison without parole have made capital punishment unnecessary, especially now that Ohio executes inmates by injection.

"A comfortable easy death is less punishment than life in prison without parole," Pfeifer said.

The chances of the bill passing are slim, given continued support of capital punishment in Ohio by Republicans and Democrats.

The committee chairman, Rep. Lynn Slaby, a Republican and former prosecutor and appeals court judge, said he couldn't say if there would be another hearing.

"I would still support the death penalty as an option as far as penalty is concerned for the worst of the worst," Slaby said after the three-hour hearing.

"Death-penalty opponents appeal to end the system," by  Alan Johnson for the Columbus Dispatch.

Against a backdrop of a 35-year low in U.S. death sentences, Ohio Supreme Court Justice Paul E. Pfeifer, family members of murder victims, and Death Row exonerees yesterday urged state lawmakers to abolish capital punishment.

“The death penalty in Ohio has become what I call a death lottery,” Pfeifer told the House Criminal Justice Committee. “The application is hit or miss depending on where you happen to commit the crime and the attitude of the prosecutor in that county.”

He added: “I believe Ohio is no longer well served by our death-penalty statute. It should be repealed.”

And:

Also testifying were two men who were wrongfully convicted and sentenced to death.

Derrick Jamison was freed after 17 years for the 1984 murder of Cincinnati bartender Gary Mitchell. Dale Johnston was exonerated in 1990 after serving seven years for the dismemberment slayings of his daughter, Annette Cooper, and her friend Todd Schultz.

Jamison tearfully recounted the death of his mother and father while he was in prison. “I am not a statistic. I am a person, a child of God who did not deserve the death penalty,” he said.

Johnston, who now lives in Grove City, said he supported the death penalty before his daughter’s murder and his wrongful incarceration. “I am living proof that the death-penalty system is not applied fairly,” he added “The death penalty must be abolished.”

Chris Stout of Dublin, a former state-prison corrections officer, described his 27-year struggle after his mother was murdered and his father permanently disabled in 1984 by two men who showed up at their door asking to use the phone.

After lengthy appeals and reversals in the courts, the case remains undecided. Stout said he is “100 percent disillusioned by this process. ... We’re the ones who’ve become the walking dead.”

"Ohio Supreme Court Justice Paul Pfeifer urges lawmakers to repeal death penalty in Ohio," by Joe Guillen for the Cleveland Plain Dealer.

Pfeifer raised concerns about the death penalty and whether it was applied evenly based on race and geography during testimony before a House committee in 2003. But he did not call for an end to capital punishment at that time.

After his testimony before the House Criminal Justice Committee, Pfeifer said he doesn't expect much support for his position in the GOP-controlled legislature either. Nevertheless, he laid out his case against the punishment, which he referred to as a "death lottery."

Pfeifer was testifying in support of House Bill 160, which would abolish the death penalty in Ohio and resentence death row inmates to life in prison without the possibility of parole. Democratic Reps. Nickie Antonio of Lakewood and Ted Celeste of Columbus are the bill's primary sponsors.

Pfeifer was a state senator and chairman of the Ohio Senate's Judiciary Committee in 1981 when the current death penalty statute became law. Executions, however, did not resume in Ohio until 1999. Since then, the state has executed 46 inmates. Twelve more are scheduled to die by September 2013.

"Ohio is no longer well-served by our death penalty statute and it should be repealed," Pfeifer told the committee. "And the bill you have before you is a good and important place to start."

Pfeifer said the punishment was meant for the "worst of the worst" -- but that is not always the case nowadays. He also said the punishment is not an effective deterrent.

"Ohio justice urges repeal of death penalty," by Jim Provance for the Toledo Blade.

The justice's beliefs on the application of the law that he helped to write as a state senator are well-known, but this is the first time he has testified before lawmakers on the subject. As a sitting justice, he has continued to vote to uphold death sentences and to set execution dates under the law.

Twelve executions have been scheduled, and Justice Pfeifer said two more are coming up, carrying the process into 2014. "I have a duty under the law to follow that law,'' the Republican justice said outside the hearing room. "At the same time, we are admonished under the rules that apply to judges that we have a duty to step forward and advocate for changes we think would lead to an improvement in the law.

"Abolishing the death penalty would be a needed improvement,'' he said. "It will happen. Will it be today, tomorrow, or in this session of the General Assembly? More problematic. But the day will come when Ohio no longer has a death penalty.''

Justice Pfeifer is not the first Supreme Court justice to testify before legislators. The late Chief Justice Thomas Moyer testified on judicial reform and mayors' courts and Justice Evelyn Lundberg Stratton testified on sentencing reform.

Current Chief Justice Maureen O'Connor has convened a yearlong task force to examine the fairness of how Ohio's death penalty law is applied, but she has stressed the task force will not second-guess whether Ohio should have the death penalty.

"Ohio holds third highest execution rate," by Tom Beyerlein of the Dayton Daily News.

Pfeifer, a Republican serving his fourth term on the Supreme Court, was among a number of opponents testifying at the bill’s first hearing. The bill is unlikely to pass, said committee Chairman Rep. Lynn Slaby, an Akron area Republican and former Summit County prosecutor.

Ohio has become a key state in the ongoing death penalty debate, partly because of high-profile breakdowns in the state’s execution procedures. In July, U.S. District Judge Gregory Frost stayed one inmate’s lethal injection because of the state’s “haphazard” application of its protocols, leading to other postponements and a six-month gap in executions. The state revised its rules, and Frost accepted them, clearing the way for the Nov. 15 execution of Reginald Brooks of Cuyahoga County.

"Testimony asks state to abolish death penalty, it creates 'more victims'," by Marc Kovac in the Wooster Daily-Record.

Twenty-seven years ago, Mary Jane Stout and her husband, Norman, allowed John David Stumpf and another man into their Guernsey County home to use the telephone.

In response, Stumpf shot and killed Mary Jane and attempted to kill her husband with repeated gunshots to the head.

That was in May 1984. Stumpf has been on Death Row since that year while his case works its way through the requisite state and federal appeals before an execution date is set.

On Wednesday, the couple's son asked state lawmakers to abolish Ohio's death penalty, saying the lengthy legal process has brought nothing but pain and constant reminders of the crime rather than closure.

"We need certainty, we need healing," Chris Stout told the House's criminal justice committee. "We need to not be hauled into court again and again for 27 years and ... traumatized over and over."

He added, "I need this system to stop, period. I need the death penalty to be over and I need people to listen to me when I say, do not do this to me or my family. Don't kill John David Stumpf because of me. We've been through enough, and we want it to end. All this system does is create more victims. ..."

Stout was one of more than a dozen people providing testimony in favor of legislation that would end capital punishment in the state.

Kevin Werner of Ohioans to Stop Executions live-tweeted the hearing, and you can read his coverage at the link.

Earlier coverage of the Ohio legislative hearing begins at the link.

TDS on the Decline in Death Sentences & Executions

Texas Defender Service has issued a news release, "Executions and New Death Sentences Continue to Decline in Texas.  Concerns about Fairness and Accuracy are Growing, According to Texas Defender Service.

Here's the text of the release in full:

Executions in Texas fell to their lowest level in 15 years in 2011, and new death sentences remained at the all-time low level established last year, according to Texas Defender Service (TDS), a non-profit law firm that represents death row prisoners.

This year, Texas executed 13 prisoners, down from 17 executions in 2010 and a reduction from the all-time high of 40 executions in 2000. Texas gained only 8 new death sentences in 2011, the same number as in 2010, and down from the all-time high of 48 new death sentences in 1999.

“These numbers show that Texans have a growing discomfort with the chronic problems that infect the death penalty system, including the risk of convicting an innocent person, the costs, and its disproportionate use against people of color,” said Kathryn Kase, interim executive director of TDS. “Texas is part of a nationwide trend away from the death penalty.”

Since 1976, 139 people have been exonerated from death row nationwide, including 12 from Texas. Questions about the execution of a possibly innocent man, Cameron Todd Willingham, continued to dominate headlines in Texas this year.  Since 2005, almost three quarters of Texas death sentences have been imposed on people of color – 41% African American, 29% Latino, and 2% other non-whites.

“Life without parole, which Texas adopted in 2005, is one reason for the reduced number of death sentences, but new death sentences began falling before Texas passed LWOP into law,” said John Niland, attorney and founder of TDS’ Capital Trial Project, which provides consulting and training to capital defense counsel. “Texas jurors are learning that the law presumes a life sentence and that the law does not require them to vote for the death penalty.”

Greg Wiercioch, who directs the Capital Post-conviction unit at TDS, said, “The reduction in executions shows that the United States Supreme Court and the Texas courts are concerned about the quality of representation that death row inmates receive and the reliability of the verdicts rendered.”

The Supreme Court granted five stays of execution in Texas cases this year, most notably to consider whether inmates have a constitutional right to effective assistance of counsel in challenging their conviction or sentence.  The Texas Court of Criminal Appeals granted stays of execution to two inmates who have raised compelling claims of innocence. 

“Even though the reduction in new death sentences and executions represents progress for Texas, its criminal justice system has a ways to go,” said Kathryn Kase.  “Several death penalty trials and executions are already scheduled for the first quarter of 2012, and that suggests that prosecutors are not heeding the public’s desire for decreased use of the death penalty.”

Texas Defender Service is a non-profit law firm with offices in Houston and Austin.  Established in 1995, TDS seeks to establish a fair and just criminal justice system in Texas by advancing reforms to improve indigent defense.  TDS does this by consulting in capital cases, developing sample pleadings, providing legal education to attorneys, and engaging in direct representation in a handful of trial and post-conviction cases.

TCADP Issues Texas 2011 Report

The Texas Coalition to Abolish the Death Penalty has issued its 2011 year-end report, "Texas Death Penalty Developments in 2011: The Year in Review," in Adobe .pdf format.

TCADP has also issued a news release announcing the report, "State of Texas Carries Out Fewest Executions Since 1996, According to New Report from TCADP.  New Death Sentences Remain at Record-Low Level, Imposed by Just Six Counties in the State."  Here's an excerpt from the release:

Executions dropped to the lowest number since 1996 and death sentences in Texas remained at a historic low level in 2011, according to the Texas Coalition to Abolish the Death Penalty’s (TCADP) new report, Texas Death Penalty Developments in 2011: The Year in Review. TCADP is an Austin-based statewide, grassroots advocacy organization.
 
In 2011, the State of Texas carried out 13 executions, which is 50% less than in 2007. It accounted for 30% of the national total, once again a smaller percentage than years past but still twice as many as any other state. Texas has executed a total of 477 people since 1982; 238 executions have occurred during the administration of Texas Governor Rick Perry, more than any other governor in U.S. history.
 
For the second year in a row, juries condemned eight new individuals to death in Texas. This remains the lowest number of new death sentences since the U.S. Supreme Court upheld Texas’ revised death penalty statute in 1976. Once again, just six counties in the state of Texas accounted for the new death row inmates: Fort Bend (1); Galveston (1); Harris (3); Harrison (1); Tarrant (1); and Travis (1). This represents 2% of all Texas counties.
 
“Texas – along with the rest of the nation – is steadily moving away from the death penalty,” said Kristin Houlé, Executive Director of the Texas Coalition to Abolish the Death Penalty. “Use of the death penalty has been relegated to just a few jurisdictions in the state as prosecutors and jurors accept alternatives that protect society and punish those who are truly guilty. Still, longstanding concerns about the arbitrary and biased administration of the death penalty remain.”
 
An analysis of data from 2007 to 2011 reveals that only 23 Texas counties have imposed death sentences over the last 5 years; of these, only 10 counties have done so in the last 2 years. Out of a total 51 death sentences imposed in this time period, Harris County leads with 9; it is followed by Dallas County, with 7 new sentences since 2007, and Tarrant and Travis Counties, with 4 new sentences each. The other 19 counties imposed 1-3 sentences each. Together, these 23 counties represent just 9% of the 254 counties in Texas.

TCADP has also provided a map of new Texas death sentences issued between 2007-2011.

Related posts are in the report index.

And What Does It Mean?

Legal analyst Andrew Cohen writes, "The Looming Death of the Death Penalty," at the Atlantic.

The year-end report by the folks at the Death Penalty Information Center tell more and more Americans what they already know in their hearts to be true: The death penalty experiment is failing yet again. Undermined by overzealous prosecutors, a hobby-horse for incurious politicians, too often taken unseriously by jurors and witnesses, capital punishment in America has devolved since 1976 into a costly, inaccurate, racially biased, and unseemly proposition.

We clearly can't do it right, and more people are wondering whether we should continue doing it at all. The facts and figures of 2011 soberly reflect the nation's evolving perceptions of the problems inherent in the justice system's ultimate punishment. For decades, "death is different" has been the courtroom mantra of capital cases. But now, and with increasing clarity, "death is different" is becoming a discernible trend all across the country.

And:

The "evolving standard" of decency, the core element of the Supreme Court's Eighth Amendment jurisprudence, clearly "evolved" in 2011 against the nation's existing capital punishment protocols. Perhaps not enough to generate any sort of swift movement from the justices in Washington. But more than enough for men and women of good will to take notice. Although I can't be certain, I suspect that the Supreme Court is only two votes short of having a majority that would dramatically alter existing death penalty rules in favor of capital defendants -- or perhaps do away with capital punishment all together. Don't say I didn't warn you.

Andrew Cohen has written a number of excellent essays this year on the death penalty.  You can find them through StandDown's Google Search box in the right column.

The DPIC report, "The Death Penalty in 2011: Year End Report," is available in Adobe .pdf format.  News coverage of the report is in the preceding post.

News Coverage of the DPIC Report

"Report: US Death Sentences Reach 35-Year Low," is the AP filing by Mark Sherman, via ABC News.  It's also available via the Washington Post and USA Today.

New death sentences in the United States have declined 75 percent from their peak since executions resumed in the 1970s, an anti-capital punishment group reports.

The Death Penalty Information Center said 78 people convicted of murder were sentenced to die so far in 2011, the first time in 35 years there have been fewer than 100 new death sentences.

The option of locking a convicted killer in prison for life without a chance of parole, as well as heightened awareness of the risks of executing the innocent, are driving the decrease, said Richard Dieter, the center’s executive director and author of the report.

In the peak year of 1996, 315 people received death sentences.

The nation also is seeing a sustained drop in executions. The 43 executions in 2011 were roughly half as many as in 2000. Ninety-eight prisoners were put to death in 1998, the busiest year for U.S. death chambers since executions resumed in 1977 following a halt imposed by the Supreme Court.

Texas again led all states by executing 13 people, while 12 other states conducted executions this year: Alabama, Arizona, Delaware, Florida, Georgia, Idaho, Mississippi, Missouri, Ohio, Oklahoma, South Carolina and Virginia.

Texas’ 477 executions since 1977 are the most, by far.

Texas, Virginia and Oklahoma account for more than half the nation’s 1,277 executions since Gary Gilmore faced a firing squad in Utah on Jan. 17, 1977, the first execution after the resumption.

"Executions, death sentences continue steady declines in 2011," by Bill Mears at CNN.

The number of executions and death sentences nationwide continues a steady decline, according to a study released Thursday, matching dwindling public support for capital punishment in general.

Only 78 people have been sentenced to lethal injection so far this year, the first time that number has dropped below 100 since the death penalty was reinstated in 1976, according to the Death Penalty Information Center.

Death sentences last year were at 112, and have declined by nearly 75% from 15 years ago, when more than 300 individuals were condemned.

The information center's annual report also showed only 43 people were executed in 2011, down three from last year, and a 56% decline from 12 years ago, when nearly a hundred people were put to death.

"This year, the use of the death penalty continued to decline by almost every measure. Executions, death sentences, public support, the number of states with the death penalty all dropped from previous years," said Richard Dieter, the information center's executive director. "Whether it's concerns about unfairness, executing the innocent, the high costs of the death penalty, or the general feeling that the government just can't get it right, Americans moved further away from capital punishment in 2011."

The non-profit organization provides accurate figures and analysis, but opposes use of the death penalty.

A CNN/Opinion Research Poll conducted in October found more Americans for the first time in recent memory favor a sentence of life in prison over the death penalty for murderers, 50% to 48%.

That's not to say that Americans want to abolish the death penalty entirely. Other polls have shown majorities generally favor it, but CNN Polling Director Keating Holland said his analysis shows there is a difference between thinking the government should have the death penalty as an option and actually wanting to see it applied.

The decline in the number who prefer the death penalty as the punishment for murder may be related to the growing number who believe that at least one person in the past five years has been executed for a crime that he or she did not commit. In 2005, when a solid majority preferred the death penalty, 59% believed that an innocent person had been executed within the previous five years. Now that figure has risen dramatically, to 72%.

"Death sentences, executions take 'historic drop,' report says," by Miranda Leitsinger for MSNBC.

"This is a historic drop in death sentences and I think it’s indicative of deep concerns about the death penalty in the public and it’s mirrored in falling executions, falling support in polls and even in legislation which has abolished the death penalty in a number of states," Dieter said.

Dieter was referring to the abandonment of the death penalty in Illinois, New Mexico, New Jersey and New York in recent years. Three other states – California, Connecticut and Maryland – are considering doing away with capital punishment, he said, and Oregon's governor recently declared a moratorium on executions during his tenure.

Dieter said that the legislative action and decline in public support is the result of people being freed from death row because of DNA testing, investigative work by the media and the international outcry over the Davis case, in which seven of the nine eyewitnesses changed their stories.

“I think that shook the confidence that some people had about the death penalty, that it really does risk innocent lives -- even though many are guilty -- there’s still the danger and so juries are returning less death sentences, prosecutors are seeking it less,” he said. “Courts are looking at these cases more closely and governors are sometimes granting clemency, all because of the doubts and disfavor of the death penalty as it has been applied in the past 10 years.”

Texas led the way in executions in 2011 with 13, followed by Alabama at six, Ohio, 5, and Georgia and Arizona each with four. The South and West accounted for 87 percent of the death sentences, while the Midwest and Northeast made up 12 percent. Meanwhile, many death penalty states, such as Indiana, Maryland and South Carolina, did not impose it during the year, the center said.

"Death Sentences Drop To Historic Lows In 2011," by Laura Sullivan on NPR Morning Edition.  There is audio at the link.

Death sentences dropped dramatically this year, marking the first time in more than three decades that judges and juries sent fewer than 100 people to death row, according to a new report from the Death Penalty Information Center.

Just 78 offenders were handed capital sentences, and only 43 inmates were executed — almost half as many as 10 years ago.

Just three months ago, in early September, the Republican presidential debate made headlines when the audience erupted into applause when moderator Brian Williams noted Texas had executed 234 people in recent years.

"I think Americans understand justice," Texas Gov. Rick Perry responded. "I think Americans are clearly, in the vast majority of cases, are supportive of capital punishment."

That may be the perception, but experts say it's not the reality.

"When I saw the reaction [at] the debate, I thought, 'This is not what I'm seeing about the death penalty around the country,'"says Richard Dieter, executive director of the nonpartisan Death Penalty Information Center, which collects statistics on capital punishment. "Everything that I've been following for 20 years says we are in a deep decline."

"Fewer than 100 Death Sentences Imposed in 2011; Is ‘Growing Discomfort’ the Reason?" by Debra Cassens Weiss at the ABA Journal.

A press release quotes the center’s executive director, Richard Dieter. “Whether it’s concerns about unfairness, executing the innocent, the high costs of the death penalty, or the general feeling that the government just can’t get it right, Americans moved further away from capital punishment in 2011,” he said.

A Gallup poll this year found that 61 percent of Americans support the death penalty, the lowest level in 40 years.

In recent developments, Illinois abolished the death penalty in March, making it the fourth state in four years to do so. The others are New Mexico, New Jersey and New York. In November, Oregon’s governor announced a moratorium on executions. Overall, 34 states, including Oregon, permit capital punishment while 16 states don’t authorize it.

There have been 1,277 executions since 1976 when the U.S. Supreme Court held in Gregg v. Georgia that the death penalty is constitutional as long as standards prevent arbitrary punishment. Texas accounted for 37 percent of the total executions since that time

"New Death Sentences Fall to Lowest Level in 35 Years," by Ashby Jones at the Wall Street Journal.

According to the report from the Death Penalty Information Center, 43 people were executed in the U.S. this year, down from 46 in 2010. The latest numbers extend a long-term decline in new death sentences and yearly executions since 2000. In that year, there were 224 new death sentences and 85 executions.

Legal experts say falling crime rates have had an impact on the trend. According to the latest available statistics from the Federal Bureau of Investigation, the number of violent crimes has dropped almost 35% in the past 20 years, which means prosecutors have far fewer occasions to seek the death penalty.

"This is a huge part of the explanation for why we're seeing fewer death sentences," said Kent Scheidegger, a death-penalty supporter and legal director of the Criminal Justice Legal Foundation in Sacramento, Calif. Mr. Scheidegger estimates that the drop in murders accounts for about half of the decline in new death sentences.

Douglas Berman, a sentencing-law expert at Ohio State University, said states are also turning away from the death penalty because capital cases can be extremely costly. "States are just taking a harder look than ever at whether an individual case is worth it," he said.

A 2008 study performed by the Urban Institute in Washington, D.C., concluded that an average successful death-penalty prosecution cost Maryland about $3 million, versus about $1.1 million to prosecute a capital-eligible case in which the state didn't seek the death penalty.

Some state leaders have in recent months voiced concern that, despite safeguards, innocent people are still at risk of being executed. After calling the death-penalty system in his state "seriously broken," Illinois Gov. Pat Quinn, a Democrat, signed a bill abolishing the state's death penalty in March. In November, Oregon Gov. John Kitzhaber, also a Democrat, declared a moratorium on executions while he remains in office, saying the system "fails to meet basic standards of justice."

With the announcement, Oregon became the latest in a string of states to move away from the death penalty. New York's highest court found the state's death penalty unconstitutional in 2004. New Jersey repealed its death penalty in 2007 and New Mexico did the same in 2009. Thirty-four states still have a death penalty on the books. Another factor in the decline in death sentences, according to Mr. Dieter of the Death Penalty Information Center: the life-without-parole sentence. "In 1970, few states had this as an option; now nearly all of them do," he said.

"Report: Fewest death cases since '76," by Mackenzie Weinger at Politico.

Overall, the annual number of death sentences is down about 75 percent from 1996, when 315 prisoners were sentenced to death, the report said. And along with executions and new death sentences, public opinion and the number of states with the death penalty also declined in 2011.

Three-fourths of the country’s executions in 2011 took place in the South, and Texas led the nation with 13 people put to death. Alabama followed Texas with six executions, and Ohio had five this year. In Georgia — the state with the highest-profile execution case this year, when Troy Davis was held on death row and executed after the U.S. Supreme rejected a last minute appeal — four people were executed.

Texas, where Gov. Rick Perry is running for president, also had the most executions in 2010, with 17, and in 2009, with 24. In two years, the report noted, Texas has had a drop of 46 percent in executions. Since 1976, the state has accounted for 37 percent of all executions, with 477 prisoners killed.

Several states with the death penalty — Maryland, South Carolina, Missouri and Indiana — had no new death sentences in 2011, according to the center. This year also saw Oregon’s Gov. John Kitzhaber place a moratorium on capital punishment while he is in office, and Illinois’s Gov. Pat Quinn sign legislation repealing the death penalty.

There are currently 34 states with the death penalty and 16 states, as well as D.C., without capital punishment.

In 2012, several states will be pushing to end the controversial practice: In California, supporters of abolishing the death penalty have gathered hundreds of thousands of signatures to place a measure on the November ballot, while activists and lawmakers in Maryland, Kansas, Ohio and Connecticut are gearing up for legislative battles in their states.

"Death penalty declines in US as disapproval grows," by Ed Pilkington at the Guardian.

While the application of the death penalty fell, America's tolerance of it also declined. The highlight of the year was the execution of Troy Davis in Georgia in September that saw an outpouring of disgust and outrage at an intensity rarely seen within the country.

Davis was put to death by lethal injection on 21 September amid widespread warnings that his conviction had been unsafe. Several of the witnesses who put him on death row in 1991 for the murder of an off-duty police officer in Savannah had since recanted, leading to the mantra of Davis's supporters: "Too much doubt."

Georgia's dogged determination to carry out the execution despite the questions surrounding the case led to protests from around the world, including interventions by the Pope, Jimmy Carter, a former head of the FBI and several Georgia judges.

The DPIC report, "The Death Penalty in 2011: Year End Report," is available in Adobe .pdf format.  Earlier coverage of the DPIC report begins in the preceding post.

DPIC Issues 2011 Report

The Death Penalty Information Center has issued its annual report, "The Death Penalty in 2011: Year End Report."

DPIC has issued a news release announcing the report, "DPIC's Year End Report: Death Sentences Drop Well Below 100; Lowest Number Since Capital Punishment was Reinstated in 1976."  It's also available via PR Newswire.

In the next post, I'll have news coverage of the report.

 

Governor Perdue's Veto Message

North Carolina Governor Beverly Perdue's office has issued, "Gov. Perdue Upholds Racial Justice Act. Vetoes Repeal of Law That Ensures Fair Application of Death Penalty."  The full statement is below:

“I am – and always will be – a strong supporter of the death penalty. I firmly believe that some crimes are so heinous that no other punishment is adequate.  As long as I am Governor, I am committed to ensuring that the death penalty remains a viable punishment option in North Carolina in appropriate cases.”

“However, because the death penalty is the ultimate punishment, it is essential that it be carried out fairly and that the process not be infected with prejudice based on race.  I signed the Racial Justice Act into law two years ago because it ensured that racial prejudice would not taint the
application of the death penalty.”

“I am vetoing Senate Bill 9 for the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”

“Finally, it is important to be clear that the Racial Justice Act does not allow anyone to be released from prison or seek parole.  Both my own legal counsel and legal experts from across the State have assured me that even if an inmate succeeds on a claim under the Racial Justice Act, his sole remedy is life in prison without the possibility of parole -- and even that would only occur if a judge first finds that racial discrimination played a significant role in the application of the death penalty."

Earlier coverage of her veto of the RJA repeal begins with the preceding post.

North Carolina Governor Vetoes RJA Repeal - UPDATED

"NC governor vetoes death-row racial bias bill," is the AP report by Gary D. Robertson.  It's via WRAL-TV.

North Carolina Gov. Beverly Perdue has vetoed a bill that would have essentially repealed a 2009 law designed to address alleged racial bias in death penalty cases.

Perdue announced her veto Wednesday of the measure that would eliminate key provisions of the Racial Justice Act.

Perdue also signed the 2009 bill into law. It says a judge must reduce a death sentence to life in prison without parole if he determines racial bias was a significant factor to impose the death sentence.

Prosecutors who pushed the repeal said the act would clog up the court system with new appeals, creating a permanent moratorium on capital punishment.

Perdue's decision means she must call the Legislature back to Raleigh by Jan. 8 to consider an override.

"Perdue vetoes repeal of Racial Justice Act," is the breaking news report from the News & Observer of Raleigh.

Gov. Bev Perdue today vetoed the bill that would gut the Racial Justice Act, the two-year-old law that allows death-row inmates to appeal their sentences based on statistical proof of racial bias.

“I am – and always will be – a strong supporter of the death penalty,” Perdue said in a statement her office issued late this morning. “I firmly believe that some crimes are so heinous that no other punishment is adequate. As long as I am governor, I am committed to ensuring that the death penalty remains a viable punishment option in North Carolina in appropriate cases.”

But, the governor continued, it’s important the death penalty be given “fairly and that the process not be infected with prejudice based on race.”
Click here to find out more!

Perdue’s statement also countered claims by the state’s prosecutors that a successful appeal under the Racial Justice Act would free inmates. The only recourse if a death-row inmates successfully argues statistical bias is a reduction in sentence to life in prison without parole.

UPDATE - Murder Victims’ Families for Reconciliation has released a statement, "On Governor Perdue’s Veto of Senate Bill 9."

We applaud Governor Beverly Perdue for the principled leadership she demonstrated today in vetoing Senate Bill 9.  We believe her action demonstrates that she carefully listened to murder victim family members with various views on the NC Racial Justice Act, considered the implications of her action for those family members and acted from a deep understanding of the kind of justice that murder victim family members want, need and deserve.  We applaud her for understanding that racially-biased justice is not justice at all and for reaffirming that she values the lives and the safety of all citizens regardless of race.
We call on members of the North Carolina House of Representatives to demonstrate the same principled leadership and valuing of the lives of all citizens regardless of race by upholding the Governor’s veto.

Earlier coverage of the North Carolina Racial Justice Act begins at the link.  Thanks to Gerda Stein for distributing.

'No Sense'

"Ohio Supreme Court justice: Death penalty 'makes no sense'," is the title of Alan Johnson's Columbus Dispatch report.

Ohio’s senior Supreme Court justice, Paul E. Pfeifer, told lawmakers this morning that Ohio has a “death lottery,” not a death penalty.

“I have concluded that the death sentence makes no sense when you can have life with out the possibility of parole. I don’t see what society gains,” he told the House Criminal Justice Committee.

“If you aren’t going to consider this, who will? If not now, when? If not you, who?” Pfeifer asked.

The legislative panel is considering House Bill 160, which would abolish the death penalty in Ohio.

Pfeifer, a maverick Republican from Bucyrus who is ending his 19th year on the court, has been advocating abolishment of the death penalty for nearly two years.

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court.

The AP filing is, "Ohio lawmakers hear from death penalty opponents, including state Supreme Court justice."  It's by Andrew Welsh-Huggins and is via the Republic.

An Ohio Supreme Court justice who helped write the state's death penalty law says Ohio is no longer well-served by it.

Justice Paul Pfeifer (PY'-fur) says the law's application has become hit-or-miss, depending on where a crime is committed and what the county prosecutor's attitude is.

Pfeifer urged the Ohio House Judiciary Committee on Wednesday to approve a bill that would scrap the 30-year-old law.

Hearings on the bill come as a state Supreme Court task force studies Ohio's law to make sure it works as it should.

"Death penalty opponents make plea to Ohio lawmakers," by Michael Henrich of WNMO-TV.

Pfeifer helped write the law enacted in 1981, but grew skeptical that prosecutors were using it fairly and this year called for its abolition.

Hearings on the bill come as a Supreme Court task force studies Ohio's death penalty law to make sure it works as it should.

But Chief Justice Maureen O'Connor has made it clear that the task force group is not to consider a ban.

The anti-death penalty bill is sponsored by Democratic state Reps. Ted Celeste of Columbus and Nickie Antonio of suburban Cleveland.

Kevin Werner of Ohioans to Stop Executions is live-tweeting the legislative committee hearing.

More on Ohio House Bill 160 is available at the link.

Earlier coverage of the Joint Task Force to Review the Administration of Ohio’s Death Penalty begins at the link.

Paradise Lost 3: Purgatory

The final installment of the Paradise Lost documentaries on the case of the West Memphis Three is set to premiere on HBO January 12.  "Paradise Lost 3: Purgatory," tells the entire story, from the 1993 murder of three young boys in Arkansas to the release and partial exoneration of Jason Baldwin, Damien Echols and Jessie Misskelley in August.

Here's the trailer:

This is from a press release on the long-running documentary project:

The award-winning HBO documentary series “Paradise Lost: The Child Murders at Robin Hood Hills” (1996) and “Paradise Lost 2: Revelations” (2000) spawned a worldwide movement to free the West Memphis 3 for wrongful murder convictions. Set to debut on HBO in Jan. 2012, “Paradise Lost 3: Purgatory” will have its theatrical premiere at the Toronto International Film Festival, with a number of prestigious festival dates to follow this fall. This film tells the entire story, from the arrests in 1993 to the growing movement, through the entire appeals process and the uncovering of new evidence, concluding with their release.

As Damien Echols notes in the film, if not for the “Paradise Lost” documentaries, “…these people would have murdered me, swept this under the rug, and I wouldn't be anything but a memory right now.”

On May 5, 1993, the bodies of three eight-year-old boys were found next to a muddy creek in the wooded Robin Hood Hills area of West Memphis, Ark. A month later, three teenagers, Jason Baldwin, Damien Echols and Jessie Misskelley, were arrested, accused and convicted of brutally raping, mutilating and killing the boys. Fraught with innuendoes of devil worship, allegations of coerced confessions and emotionally charged statements, the case was one of the most sensational in state history. The films sparked a national debate regarding the innocence or guilt of the West Memphis 3.

With the support of HBO, the filmmakers have stuck with the story over an 18-year period, making these compelling films in order to continue to shed light, raise awareness and spur debate about the events that transpired at that time and in subsequent years after the convictions.

“Eighteen years and three films ago, we started this journey to document the terrible murders of three innocent boys and the subsequent circus that followed the arrests and convictions of Baldwin, Echols and Misskelley,” said director and producer Joe Berlinger. “To see our work culminate in the righting of this tragic miscarriage of justice is more than a filmmaker could ask for.”

And:

Premiering at the 1996 Sundance Film Festival, “Paradise Lost: The Child Murders at Robin Hood Hills” went on to win many accolades after its HBO presentation, receiving Emmy® and Peabody Awards, and a DGA nomination, among other honors, and was named Best Documentary by the National Board of Review.

“Paradise Lost 3: Purgatory” is directed and produced by Joe Berlinger; codirected and produced by Bruce Sinofsky; edited by Alyse Ardell Spiegel; director of photography, Bob Richman; producer/second unit director; Jonathan Silberberg; featuring songs by Metallica. For HBO: supervising producer, Nancy Abraham; executive producer, Sheila Nevins.

Earlier coverage of the West Memphis Three and their release begins at the link.  Mark your calendar for Januray 12.

The New York Times on Abu-Jamal & Capital Punishment

"The Abu-Jamal Case," is the title of the editorial in today's Times.

After nearly 30 years, prosecutors in Philadelphia decided last week to end their fight to execute Mumia Abu-Jamal, who was convicted in 1982 of the murder of Daniel Faulkner, a police officer. Decades of legal proceedings have proved that Pennsylvania’s death penalty machinery is unconstitutionally flawed and should be stopped.

Seth Williams, the district attorney, maintains that Mr. Abu-Jamal is guilty but says it is time to put the case to rest and have Mr. Abu-Jamal spend his life in prison without possibility of parole.

And:

The problem for Pennsylvania, as a committee of the American Bar Association found in 2007, is that the state’s system for administering the death penalty is “plagued with errors” like what the federal appeals court found. The panel reported that “inadequate representation, the disturbing prospect of executing an innocent person, racism, and geographic disparities are undeniably present in our state’s justice system.”

Of the 207 convicts on Pennsylvania’s death row, 50 were sentenced 20 years ago or longer. The system is costly and time-consuming as well as unjust. Mr. Williams said sensibly, “The survivors of Officer Faulkner have suffered enough, and the best remaining option is to allow his murderer to die in prison.” The state should pass the law proposed in March to end the death penalty. There is no convincing argument in favor of maintaining capital punishment in Pennsylvania or anywhere else.

Huffington Post Black Voices reports, "Mumia Abu-Jamal Surprised By DA's Decision."

Last week's decision by prosecutors to drop their bid for capital punishment meant Abu-Jamal received an automatic life term. He said in a phone call to supporters that he had already been moved off death row to a new cell in the western Pennsylvania prison where he is incarcerated.

"Because there will not be a hearing there is some disappointment, because we thought we could make some things happen in that hearing and really give a good fight," Abu-Jamal said, "but we'll have to fight in other ways."

The call was broadcast Monday on the news program Democracy Now! Excerpts were posted on prisonradio.org, which frequently airs his commentaries from behind bars.

Abu-Jamal had also called in Friday to about 1,000 supporters gathered at the National Constitution Center in Philadelphia for an event marking the 30th anniversary of his arrest.

Abu-Jamal is a onetime radio journalist and former Black Panther who had been on death row since 1982 for gunning down white city police Officer Daniel Faulkner. He garnered worldwide support for his claims that he was the victim of a racist justice system.

Earlier coverage of Mumia Abu-Jamal's case begins at the link.

Lethal Injection Drug Commentary From India

The Hindu, of Mumbai, carries, "India source for U.S. execution drug? Lack of export control may give room for exploitation."  It's written by Rahi Gaikwad.

When Indian pharmaceutical company Kayem dispatched stocks of sodium thiopental to the U.S. early this year, they thought it was a golden chance to bring in good business and build a reputation. What came, instead, was, in the company's words, “a bouncer.”

Little did Kayem know that the drug they so eagerly parcelled off to the U.S. was being injected into prisoners on death row for their execution in the prisons of Nebraska and South Dakota.

“We thought exporting to the U.S. will be good for us. We sold 500 vials of the drug to Nebraska and 500 to South Dakota, not knowing its end use. When we learnt it was being used for execution in U.S. prisons it was a total bouncer. We issued a public statement announcing that we have discontinued selling it to them,” Navneet Verma, managing director of Kayem told The Hindu on the phone on Monday.

The truth about the use of sodium thiopental for non-medicinal purposes was uncovered by Maya Foa, investigator from a U.K. legal NGO ‘Reprieve'.

“The medicine is being used in large parts of the world for medicinal purposes, but in the U.S. it is being diverted for executions,” Ms. Foa told a press conference recently in the city. This “misuse” of the drug, its shortage in the U.S. and attempts by the country to obtain the drug from various European nations has given rise to a body of controversy that soon threatens to engulf the Indian pharmaceutical industry, Ms. Foa pointed out.

But India seems to be unawares of the repercussions of selling to the U.S. Lack of export controls provides an easy leeway to the U.S. to purchase from unsuspecting manufacturers like Kayem.

Earlier lethal injection coverage from Nebraska and South Dakota begins at the links.

European Union to Act on Lethal Drug Exports

Today's Lincoln Journal Star reports, "EU to ban export of lethal injection drug."  It's written by Kevin O'Hanlon.

Action by the European Union will make it tougher for Nebraska to buy more of the lethal injection drug sodium thoipental -- one of three drugs called for in the state's execution protocol.

The German newspaper Süddeutsche Zeitung reported Monday that a new EU rule will go into effect at the end of this week prohibiting the export of some barbituric acids, including the anesthetic sodium thiopental.

The drug has been in short supply since last year, when the only U.S. manufacturer, Hospira Inc., ended production because of death-penalty opposition from overseas customers.

Nebraska is among 10 states that have purchased the drug from foreign sources. But the U.S. Drug Enforcement Administration has seized supplies from several states because it was illegally imported or because of questions over how it was manufactured.

Nebraska has twice purchased sodium thiopental made overseas. The DEA did not seize the first batch but told the state it could not use it because it was imported illegally.

Nebraska since obtained a proper import license and recently bought a supply made by a Swiss company through a broker -- an action that resulted in a pending legal challenge in the Nebraska Supreme Court.

The last 32 executions in the United States have been done using pentobarbital -- which is used to treat seizures and for preoperative sedation.

However, the Danish manufacturer of pentobarbital, Lundbeck, has expressed concern over its product being used for execution and says on its website it "will deny distribution of the product to prisons in U.S. states currently active in carrying out the death penalty by lethal injection."

And:

Defense attorney Jerry Soucie, of the Nebraska Commission for Public Advocacy, said that as manufacturers and suppliers express concerns about the use of their products to conduct executions, "the state departments of corrections have sought these same chemicals from less reputable black and gray market suppliers -- 'no questions asked.'"

"If the states are going to continue to pursue the death penalty by lethal injection, then they should be held to the same standard as any other wholesale pharmaceutical importer, not less," Soucie said. "When the state seeks to take the life of another human being, governmental officials should scrupulously comply with all state and federal laws with full disclosure regarding the details of such drug purchases. This governmental transparency is sound public policy that will increase public confidence in our criminal justice institutions."

"Moore tries to withdraw appeals," by Todd Cooper for the Omaha World-Herald.

Carey Dean Moore — Nebraska's longest-serving prisoner on death row — has filed motions in Douglas County District Court asking the judge to disregard any arguments, motions or attempts to free him from death row.

His timing is interesting: His request to drop everything comes as a judge is considering attorney Jerry Soucie's arguments that Nebraska Attorney General Jon Bruning's office committed prosecutorial misconduct by seeking to execute Moore despite having an improperly imported drug.

Four years ago, Moore made a move similar to what he is doing today — asking the court to set an execution date. At that time, he told The World-Herald that he wanted to trade the "hell" of death row for heaven.

The Nebraska Supreme Court canceled the execution then over questions about the constitutionality of the electric chair, and Moore changed his mind about wanting to die. Appeals followed, including Soucie's current motion for postconviction relief.

This time, Moore's motive is unclear. He declined an interview request.

The motion, which was a surprise to at least one prosecutor, comes after questions about how the state obtained a batch of the drug in question, sodium thiopental.

The drug — the first drug administered in the three-drug lethal injection cocktail — is no longer made in the United States and is becoming increasingly scarce abroad because of the controversy surrounding its use in lethal injections. Nebraska switched its execution method from electrocution to lethal injection in 2009.

In May, questions about the drug led the Nebraska Supreme Court to grant a stay of execution for Moore.

Der Spiegel Online carries, "EU Set to Ban Export of Drug Used in US Executions."

According to a report published Monday in the daily Süddeutsche Zeitung, a new European Union regulation set to go into effect at the end of this week will prohibit the export of some barbituric acids unless a special permit has been issued. Among those chemicals on the list is the anesthetic thiopental, which is used broadly in the US for executions.

When announcing its decision to cease production of thiopental, Hospira cited the drug's use in lethal injection cocktails as the primary reason. Numerous executions in the US have had to be postponed due to shortages of the chemical as a result of the company's decision. Simply replacing it with something else is not immediately possible due to the complicated process with which chemicals are approved for inclusion in lethal injection cocktails. As a result, many states have spent months searching for new suppliers abroad.

In June, Germany's Vice Chancellor Philipp Rösler, who was health minister at the time, said he was asked by then-US Commerce Secretary Gary Locke to help in the search for new suppliers of thiopental. "I noted the request, and declined," Rösler reported saying in response. He also wrote to German pharmaceutical companies asking them not to sell the chemical in the US.

The Süddeutsche reports that Rösler was a significant supporter of the new EU regulation.

"EU to limit exports of lethal injections to the US," by Joanna Impey at Deutsche Welle.

The European Union is reported to be close to banning exports of a sedative used to carry out lethal injections in the United States. According to a report by the German daily Süddeutsche Zeitung, the export of Thiopental Natrium would in future only be permitted under special license.

And:

Germany's former health minister and current economy minister, Philipp Rösler, has called on German manufacturers to not to sell the product to the US.

According to the Süddeutsche Zeitung, a number of anesthetic substances are to be included in the new EU export regulations, which is to be published on Friday.

Earlier coverage of Nebraska lethal injection issues begins at the link.  Related posts are in the lethal injection index.

Notable posts include:

• More Roadblocks for Execution Drugs
• More on the Lundbeck Actions
• An Update on Foreign-Sourced Lethal Injection Drugs
• International Lethal Injection Developments
• Seeking Execution Drug, States Cut Legal Corners
• Additional Coverage of Indian Lethal Injection Drug Supplier
• Another Drug Manufacturer Seeks to Restrict U.S. Access

Halt Executions

That's the title of an editorial in the Louisville Courier-Journal following the release of the ABA Kentucky Assessment of the state's administration of capital punishment.  It appeared in the Sunday edition.

The findings of a blue-ribbon panel that studied the death penalty in Kentucky are disturbing but welcome. Short of abolishing capital punishment, which would be the best course for the commonwealth, a moratorium on executions would be a welcome alternative.

The team of law professors, retired judges and attorneys who studied capital punishment laws and procedures for the past two years found that they do not “sufficiently protect the innocent, convict the guilty and ensure the fair and efficient enforcement of criminal law.”

Nobody should be surprised about this. For decades, the evidence has been strong, in some cases tragic, that executions have been carried out based on either inadequate or even downright false information. The pattern was so disturbing that in 1972, the U.S. Supreme Court struck down state and federal laws that, the majority said, were “arbitrary and capricious.” Laws were re-written to respond to that ruling and by 1977, executions were resumed in many states.

There are all sorts of reasons, both legal and moral, why capital punishment should be eliminated. The United States is the last Western country where the state puts its people to death. And in this country, the instances of where the punishment has been applied in a way that discriminates, particularly against African Americans, are so numerous that it needs to go.

Earlier coverage of the ABA Assessment begins at the link.  The Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

News From Illinois

"Loss of litigation fund raises fears of wrongful convictions," is the title of a comprehensive report by Chris Dettro.  It appears in the Springfield State Journal-Register and several other Illinois outlets.  Here's the beginning:

Illinois’ abolition of the death penalty could have a boomerang effect on some defendants: more innocent people might be convicted of murder.

Gov. Pat Quinn’s signature on the abolition bill threw into limbo murder cases in which attorneys previously had access to the Capital Litigation Trust Fund, which will cease to exist at the end of the year.

Legislation to create a replacement fund to ensure that defense attorneys had access to the same resources as prosecutors never made it to a vote earlier this year. The reason is familiar — there’s no money.

As a result, the burden has fallen to county governments, many of which are as fiscally strapped as the state.

John Hanlon, legal director for the DNA post-conviction program of the Downstate Illinois Innocence Project at the University of Illinois Springfield, said prosecutors, even in small counties, have access to help from the state attorney general’s office and appellate prosecutor’s office, and Illinois State Police investigators.

Defense attorneys do not, he said.

“For a big-ticket case now, a defendant will have one lawyer and whatever resources the county can pay for,” Hanlon said. “There is less staff on the defense side, and there are likely to be more wrongful convictions.

“That’s a concern everybody has,” he said.

Earlier coverage from Illinois includes the last capital prosecution and Illinois' repeal of the death penalty.  Related posts are in the indigent defense index.

Ohio Consolidates Death Row

Today's Columbus Dispatch reports, "Death Row inmates being consolidated in Chillicothe’s prison."  It's written by  Alan Johnson.

There's no “Green Mile” on Ohio’s new Death Row at the Chillicothe Correctional Institution. No last, long walk for the condemned.

The reason: They will not be housed in the same prison as the Death House at the Southern Ohio Correctional Facility near Lucasville.

But for those about to be executed, it will be a much shorter trip — about a 40-minute drive south on Rt. 23 — once Death Row is moved by the end of the month.

By Dec. 31, 145 men will be moved to the Chillicothe prison from the Ohio Penitentiary at Youngstown and Mansfield Correctional Institution, prison officials say. Six of the highest-security inmates who were involved in the deadly 1993 Lucasville prison riot will remain at Youngstown; four ill inmates are housed at the Franklin Medical Center south of Columbus.

Donna Roberts of Trumbull County, the only woman on Death Row, will remain in the Ohio Reformatory for Women at Marysville.

The move began last week with the transfer of 29 inmates, mostly from Mansfield, said Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction.

Security and space issues, not transportation costs, were the primary reasons for the move. However, transportation was a factor. Each 260-mile trip from Youngstown to Lucasville cost the state $1,200, largely because it involved an overnight stay for corrections officers. The cost is $406 for the 150-mile trip from Mansfield.

It will be the fourth move in the 126-year history of Ohio’s Death Row.

Related posts are in the incarceration index.

Politico Examines the Politics of Death Penalty Repeal

"States push to end the death penalty," is the title of Mackenzie Weinger's report at Politico.  It looks at activity in several states.  Here's the beginning, with a focus on California:

Could capital punishment be at death’s door in 2012?

That’s the goal for several states next year, say leading anti-death penalty advocates who are making a push to end the controversial practice.

In California, supporters of abolishing the death penalty have gathered hundreds of thousands of signatures to place a measure on the November ballot, while activists and lawmakers in Maryland, Kansas, Ohio and Connecticut are gearing up for legislative battles in their states.

Advocates say the coming year could be their best opportunity yet to replace the death penalty with life without the possibility of parole in these states, pointing to shifts in public opinion, rising concern over execution costs, Oregon Gov. John Kitzhaber’s recent decision to place a moratorium on capital punishment, and Troy Davis’s high-profile execution galvanizing opposition to the death penalty. And in California, the drive for a public referendum could get a boost by appearing on the presidential election-year ballot, backers say.

Davis’s controversial case, which spurred protests in Georgia and around the country, was a wake-up call for many Americans, said Diann Rust-Tierney, the National Coalition to Abolish the Death Penalty’s executive director. “That was a sad but stark example to folks of how broken the system is,” Rust-Tierney told POLITICO.

It’s a system that’s not just broken, anti-death penalty activists say, but far too costly.

In California — where capital punishment was passed by the voters over 30 years ago and can only be repealed by referendum — the state’s painful budgetary crisis spells a great opportunity for success in 2012, according to those pushing the measure.

Natasha Minsker of the SAFE California Campaign, the group leading the effort to qualify a measure for the state’s November ballot replacing the death penalty with life without possibility of parole, said a recent study that found California has spent roughly $4 billion to carry out 13 executions since the death penalty was reinstated in 1978 has fired up the repeal effort in a state plagued by terrible financial problems. The staggering $4 billion figure comes from all costs funding the death penalty system in California, including the trials, appeals, death-row housing, healthcare of inmates and the executions themselves.

“More voters now realize that the death penalty is enormously expensive, and we’re in the worst budget crisis ever in California history,” Minsker told POLITICO. “With the economic crisis right now — that Californians are living everyday with terrible budget cuts — people are much more likely to pay attention to the fact that we are wasting money on the death penalty.”

The campaign has collected 240,000 signatures — California requires 504,000 valid signatures for the referendum to make it onto the ballot — and is aiming to submit about 750,000 by the end of February. And, Minsker added, they’ve already got $1.2 million in their coffers from contributions that ranged in size from $5 to $500,000.

Related posts are in the abolition index.

Arkansas Death Penalty Conviction Overturned by Tweeting, Sleeping Jurors

The Arkansas Supreme Court ruling in Dimas-Martinez v. Arkansas is available in Adobe .pdf format.

The Arkansas News Bureau reports, "Murder conviction overturned because of tweeting, sleeping jurors."  It's written by John Lyon.  Here's an extended excerpt:

The state Supreme Court overturned a death-row inmate’s murder conviction today because of jurors who tweeted and slept during his trial.

The high court also said that because of changing technology, it is time to consider whether jurors should continue to be allowed access to mobile phones during trials.

The Supreme Court ordered a new trial in Benton County Circuit Court for Erickson Dimas-Martinez in the Dec. 30, 2006, shooting death of 17-year-old Derrick Jefferson in Springdale. Dimas-Martinez had been sentenced to death for capital murder and life in prison for aggravated robbery.

An attorney for Dimas-Martinez, now 26, said last month in oral arguments before the Supreme Court that the trial judge should have dismissed a juror who sent messages via Twitter from the jury box and the deliberation room during the trial.

The trial judge instructed jurors at the start of the trial not to tweet about the case and not to discuss the case with anyone. During the sentencing phase, a juror tweeted, “Choices to be made. Hearts to be broken. We each define the great line.”

Dimas-Martinez’s trial lawyer told the judge about the tweet, and the judge questioned the juror. The juror explained that he was preparing himself to make a decision about the death penalty and was making a reference to the album “Define the Great Line” by the band Underoath.

The juror said he had not revealed any particulars of the case. Over the defense attorney’s objection, the judge did not strike the juror.

The juror continued to send tweets after being questioned by the judge. Among them was the tweet “It is over,” sent nearly an hour before the jury announced it had reached a verdict.

In its unanimous opinion reversing the conviction, the Supreme Court said the tweets were a public discussion of the case, in violation of the judge’s instructions.

“This court has recognized the importance that jurors not be allowed to post musings, thoughts or any other information about trials on any online forums,” Justice Donald Corbin wrote in the opinion. “The possibility for prejudice is simply too high. Such a fact is underscored in this case, as appellant points out, because one of the juror’s Twitter followers was a reporter.”

"Death row inmate gets new trial because of tweet," by Jeannie Nuss for the AP, via Business Week.

Erickson Dimas-Martinez's attorneys had appealed his 2010 murder conviction because a juror sent the tweets despite the judge's instruction not to post on the Internet or communicate with anyone about the case. The lawyers also complained that another juror slept.

In one tweet, juror Randy Franco wrote: "Choices to be made. Hearts to be broken...We each define the great line." Less than an hour before the jury announced its verdict, he tweeted: "It's over."

Other tweets by Franco made passing references to the trial, with posts such as, "the coffee sucks here" and "Court. Day 5. Here we go again."

The court said Franco, known as Juror 2 in court documents, violated general instructions to not discuss the case. Before opening arguments, the judge said: "Just remember, never discuss this case over your cell phone. .... and don't Twitter anybody about this case."

"Because of the very nature of Twitter as an ... online social media site, Juror 2's tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion," Associate Justice Donald Corbin wrote.

The justices also used the case to point out that a wide array of juror misconduct can come into play when jurors have unrestricted access to their cell phones during a trial.

"Most mobile phones now allow instant access to a myriad of information. Not only can jurors access Facebook, Twitter, or other social media sites, but they can also access news sites that might have information about a case," Corbin wrote.

"Arkansas death row inmate gets new trial because of tweets," by Suzi Parker for Reuters.

A lower court denied Dimas-Martinez' motion for a new trial, stating he "suffered no prejudice."

In an earlier case before the state Supreme court, the state argued that the juror's tweets were about his feelings and not the case.

In Thursday's courts opinion, Associate Justice Donald Corbin wrote that "prejudice results from the fact that the juror admitted to the misconduct, which proves that he failed to follow the court's instructions, and it is the failure to follow the law that prejudiced Appellant."

The Arkansas Supreme Court has a provision in place that states that "electronic devices shall not be used in the courtroom to broadcast, record, photograph, e-mail, blog, tweet, text, post, or transmit by any other means except as may be allowed by the court."

As a result, Corbin wrote that the risk of prejudice is "simply too high' to allow jurors to post any information or "musings" online.

Corbin wrote that the court now wants its committees on criminal practice and civil practice to consider whether jurors' access to mobile phones should be limited during a trial.

The Arkansas case is the latest of a number across the country dealing with use of social networking by jurors during trials.

An RJA Update

"Gov. Perdue to decide soon on legislation impacting Racial Justice Act," is the NC News Network post by Alyssa Marcus and David Horn.

Gov. Bev Perdue said she is still figuring out her next step on a bill that essentially does away with a 2009 law that allows convicted murderers in North Carolina to use statistics to persuade a judge that racial bias contributed to their death sentence. State lawmakers approved the measure last month.

"I'm moving in one direction.  I know where my head is and where my heart is and so I'm going to listen as I should to other people and at the end of the day I'm going to make a decision very soon," said Perdue.

The governor has until Dec. 29 to veto the bill, sign the measure, or let it become law without acting.

Today's Winston-Salem Journal carries the OpEd, "Perdue must veto Racial Justice Act repeal," by Frank R. Baumgartner.  He's a professor of political science at UNC Chapel Hill.  Here's an excerpt from this must-read:

The past few weeks have seen a remarkable effort of lobbying by the N.C. Conference of District Attorneys, culminating in the vote by the legislature to repeal the Racial Justice Act (RJA), a law that the DAs do not like and do not want to see enforced. And, indeed, the law creates a fundamental new right, though only for an extremely small set of petitioners, those 157 individuals who currently sit on death row. The RJA allows their lawyers to present evidence of statistical patterns of racial bias across the state or in any particular jurisdiction. They need not demonstrate a discriminatory intent in their individual case, and this is the element that is the subject of appeal. (The only relief, if we can call it that, available to inmates who demonstrate bias is that a death sentence will be replaced with a penalty of life without the possibility of parole. Opponents to the RJA have attempted to raise doubts on this issue, but those should be considered scare tactics, as the law is clear: No one will go free.)

The RJA is a truly innovative and important piece of legislation in that it specifically allows the statistical arguments that the repeal now eliminates.

A large state-wide study suggests that, controlling for other factors, those with white victims are more than twice as likely to receive a death sentence compared to those who kill minorities. Further and perhaps more shocking, African-American citizens otherwise qualified to serve on capital juries are rejected at much higher rates than whites; many of those on death row were sentenced by juries with no minorities, whereas our population is more than 20 percent African-American. In January 2012, hearings are scheduled in Cumberland County to address these issues. In contrast to claims that the law will clog the court system with needless claims, a single case is going forward. If it is found to be baseless, a judge will so decide. If the evidence is convincing to the court, then we should all be concerned.

Baumgartner examines homicides in the state by race and provides a link to, "Racial Discrepancies in Homicide Victimization and Executions in North Carolina, 1976-2008."  It's available in Adobe .pdf format.

Guilford County State Rep. Pricey Harrison writes the OpEd, "Race still matters in life-and-death cases," for the Greensboro News-Record.

Now, let’s be honest about why our lawmakers voted to repeal the Racial Justice Act.

They’re not ready to confront the reality that race still matters in life-and-death cases. They don’t want to admit that our justice system still places more importance on the lives of white people, and still excludes minorities from positions of power.

Last year, studies found that people convicted of killing white victims are almost three times as likely to get the death penalty as those who kill minorities. Another study found that qualified black jurors are being systematically excluded from capital trials.

To me and many of my fellow lawmakers, those studies were a red flag. A sign that we needed to look more closely at our capital punishment system.

But opponents of the Racial Justice Act simply dismissed them.

Earlier coverage of the North Carolina Racial Justice Act begins at the link.

Lynching and The Death Penalty

That's the title of a symposium at the University of Texas School of Law, set for March 23 & 24, 2012.

The symposium will focus on the historical link between lynching and the death penalty, their similarities and differences, and the enduring role of lynching and race discrimination in contemporary capital litigation.

Keynote address by Bryan Stevenson: Lynching, Racial History and Death Penalty Disqualification.

Presented by: Capital Punishment Center
Sponsor: William Wayne Justice Center for Public Interest Law
Student Organization Sponsor: Texas Journal on Civil Liberties & Civil Rights

More information, including the full program of Lynching and the Death Penalty, is at the link.  It will be held in the Eidman Courtroom at the UT Law.

Friday March 23rd

12:30 – 12:45    Welcoming Remarks

12:45 – 1:15:    Keynote address:  Bryan Stevenson

1:30 – 3:15:      Panel One:  Lynching, a General Historical Perspective
This panel will discuss the practice of lynching in the United States during the late 19th and early 20th centuries, including its social and political significance, its role in maintaining racial caste, and its connection to other practices (including criminal punishment).

Philip Dray, New York University, Institute for the Humanities
Grace Hale, University of Virginia, Departments of History and American Studies
Amy Louise Wood, Illinois State University, Department of History
George C. Wright, Prairie View A&M University
            Moderator:  William Forbath, University of Texas School of Law

3:15-3:30    Coffee Break

3:30 – 5:00:      Panel Two: The Relationship between Lynching and the Death Penalty during the Lynching Era
This panel will focus on the relationship between lynching and capital punishment during the era of active lynching, including the similarities/dissimilarities of those practices, the extent to which capital punishment and lynching served as “substitutes” for each other, and the connection between lynching reform movements and criminal justice policies.

Carol Steiker, Harvard Law School
Jordan Steiker, University of Texas School of Law
Margaret Vandiver, University of Memphis, Criminology and Criminal Justice
    Moderator:  Cary Franklin, University of Texas School of Law


Saturday March 24th

8:45-10:15:    Panel Three: Lynching’s Legacy and Contemporary Capital Practice
This panel will discuss the extent to which contemporary capital punishment is influenced by, understood through, or reflective of the practice of American lynching.

Sherrilyn Ifill, University of Maryland School of Law
David Oshinsky, University of Texas, Department of History
Rob Owen, University of Texas School of Law
Frank Zimring, University of California Berkeley, School of Law
            Moderator:  Justin Driver, University of Texas School of Law


10:30-12:00:     Panel Four: Lynching and Contemporary Litigation
This panel will examine the continuing role of race discrimination in general and lynching in particular on contemporary American criminal justice, focusing on  the significance of past lynching practices - as an integral part of community histories of racism - in contemporary capital litigation.

Maurie Levin, University of Texas School of Law
Bryan Stevenson, Executive Director, Equal Justice Initiative
Christina Swarns, Director, Criminal Justice Project, NAACP Legal Defense Fund
            Moderator:  Jim Marcus, University of Texas School of Law

ABA Assessment of Kentucky's Capital Punishment System

The American Bar Association's Kentucky Assessment on the Death Penalty is available in Adobe .pdf format at the ABA Moratorium Implementation Project's website.

Today's Louisville Courier-Journal reports, "Kentucky should suspend death penalty, ABA panel recommends."  It's written by Andrew Wolfson, with additional reporting by Tom Loftus.  Here's the beginning of this lengthy article:

An American Bar Association panel has recommended that Kentucky temporarily suspend the death penalty until it adopts new safeguards to prevent execution of the innocent.

In a 520-page report issued Wednesday, a team of lawyers, professors and retired judges who studied the state’s death penalty laws and procedures for two years found that they do not “sufficiently protect the innocent, convict the guilty and ensure the fair and efficient enforcement of criminal law.”

Public defenders and other defense lawyers hailed the Kentucky Death Penalty Assessment Report and the proposed moratorium, while Attorney General Jack Conway disputed its conclusion that the system is broken and said suspending executions “disregards trial verdicts, years of judicial review and the surviving family members of victims.”

The report, prepared by an eight-member team, said that Kentucky has made “substantial strides” toward ensuring an adequate defense for capital defendants, but that several grave weaknesses remain.

Those include the failure of police departments to follow nationally recommended eyewitness identification and interrogation procedures; the failure to retain evidence for subsequent DNA testing; and the absence of a system for ensuring that the state’s 57 commonwealth’s attorneys apply the death penalty in an “even, non-discriminatory manner.”

The report also found that at least 10 of the 78 people sentenced to death in Kentucky since capital punishment was reintroduced in 1976 were represented by attorneys who were subsequently disbarred, and that 52 of them — two-thirds — had their sentences reversed on appeal or were granted clemency.

The report recommends more than two dozen reforms, including better maintenance of evidence, and says that halting executions temporarily would give all three branches of government the opportunity to rectify problems identified in the report.

Kentucky has executed three men since 1976 and currently has 34 people on death row.

"Lawyers: Kentucky should suspend executions until flaws fixed," is by Bill Estep in the Lexington Herald-Leader.

There are serious flaws in Kentucky's administration of the death penalty, increasing the chance an innocent person could be executed, an American Bar Association team said in a study released Wednesday.

The team recommended halting executions in the state until lawmakers and others correct problems cited in the study.

Those problems include a lack of protections against executing seriously mentally ill people; high case loads and low pay for public defenders who represent people accused of capital crimes; no rule to preserve evidence for as long as someone is in prison, meaning they might miss a chance for DNA tests that could exonerate them; and confusion among jurors about their role in deciding whether to recommend a death sentence.

The study found that of the 78 people sentenced to death in Kentucky since 1976, 52 later had that initial sentence overturned because of errors at the trial.

"The underlying concern is that an innocent person not be put to death," said William T. Robinson III, a Northern Kentucky lawyer who is president of the ABA. "When a person's life is at stake, the guarantees of fairness and due process are absolutely paramount."

A poll commissioned by the ABA found that 62 percent of Kentuckians support a temporary halt to executions, the study team announced during a Frankfort news conference.

Support for the moratorium topped 50 percent in every demographic group, including men, women, Democrats, Republicans and urban and rural residents, according to the poll of 405 likely voters contacted between Nov. 30 and Dec. 4.

It would be up to Gov. Steve Beshear to declare a moratorium on death sentences, said Linda Ewald, a University of Louisville law professor who co-chaired the study team. Beshear issued a statement saying his office will carefully review the 400-plus page report.

"ABA: Kentucky should suspend executions," by AP writer Brett Barrouquere is via the Chicago Tribune.

The American Bar Association on Wednesday recommended that the state indefinitely halt all executions after a study showed a high rate of convictions being reversed, no standard for attorneys handling capital cases and few protections against executing the mentally disabled.

The report, which examined 92 factors in Kentucky's system, was conducted as part of the ABA's Death Penalty Moratorium Implementation Project, which has examined eight other states since 2001. The project calls for a nationwide moratorium on executions while problems are addressed.

The report found that of the 78 people sentenced to death since the death penalty was reinstated in Kentucky in 1976, 50 have had convictions or sentences overturned by state or federal courts -- an error rate of about 64 percent.

It identifies dozens of reforms and says a moratorium would allow the state to make the necessary changes before another execution takes place.

ABA President William Robinson of Florence, Ky., said the main issue is ensuring that an innocent person isn't executed because of a system flaw.

"When a person's life is at stake, the guarantee of fairness and due process are paramount," Robinson said during a press conference at the state capitol in Frankfort.

Team members included two former state Supreme Court justices, law professors and private attorneys.

"It is the Assessment Team's unanimous view that so long as Kentucky imposes the death penalty, it must be reserved for the worst offenders and offenses, ensure heightened due process and minimize risk of executing the innocent," the 438-page report says.

Earlier state assessements and additional information is available at the ABA Moratorium Implementation Project website.  Related posts are in the ABA index.

Judicial Nomination War

Yesterday's vote by GOP senators appears to signal a partisan escalation in the federal judicial nomination process.

"An unworthy filibuster by the Senate on Caitlin Halligan," is the Washington Post editorial.

THE INSIDIOUS USE of judicial nominees as political pawns continued Tuesday with a Republican filibuster of Caitlin J. Halligan.

Voted well-qualified by a unanimous American Bar Association, Ms. Halligan was tapped by President Obama to fill a long-vacant seat on the U.S. Court of Appeals for the D.C. Circuit. She is general counsel for the New York County District Attorney’s Office in Manhattan and has served ably in public posts and private practice; she earned the enthusiastic support of a bipartisan group of legal luminaries, including Miguel A. Estrada, whom President Bush nominated to the D.C. Circuit.

Those who have worked with Ms. Halligan say she is a skilled lawyer with moderate views — a depiction that is at odds with the distorted portrait of her painted by Republicans.

And:

Ms. Halligan’s nomination was blocked for two reasons: to keep a Democratic appointee from joining a bench that is considered a farm team for the Supreme Court; and to avenge the defeat of eminently qualified Republican nominees such as Mr. Estrada. It is a disgrace to the party that Lisa Murkowski of Alaska was the only Republican to endorse an up-or-down vote.

News coverage of the cloture vote begins with the New York Times, "Filibuster by Senate Republicans Blocks Confirmation of Judicial Nominee."  It's written by Charlie Savage and Raymond Hernandez.

Senate Republicans on Tuesday blocked confirmation of Caitlin J. Halligan, a prominent New York lawyer, to be a federal appeals court judge, raising the question of whether a political deal to prevent the filibuster of most judicial nominations has broken down.

Democrats failed to pick up the 60 votes needed under Senate rules to break a filibuster of a confirmation vote for Ms. Halligan, a former New York State solicitor general. The vote to break the filibuster was 54 to 45 and was largely along party lines; only one Republican, Senator Lisa Murkowski of Alaska, favored allowing an up-or-down vote on Ms. Halligan, while no Democrats voted against it.

President Obama had nominated Ms. Halligan for one of three vacancies on the United States Court of Appeals for the District of Columbia Circuit, which is generally is considered the second-most powerful court in the country because it frequently hears cases involving the federal government.

In a statement shortly after the Senate vote, Mr. Obama expressed disappointment and accused Republicans of undermining the judicial confirmation process for partisan purposes.

“Her nomination fell victim to the Republican pattern of obstructionism that puts party ahead of country,” Mr. Obama said. “Today’s vote dramatically lowers the bar used to justify a filibuster, which had required ‘extraordinary circumstances.’ The only extraordinary things about Ms. Halligan are her qualifications and her intellect.”

"Judicial Wars Flare As Senate Blocks Obama Nominee," by Nina Totenberg at NPR.

Prior to that Halligan had served as chief of the appellate section of a top-tier law firm. She now is counsel for the Manhattan district attorney. The American Bar Association gave her its highest rating. Democrats said that Republicans had deliberately twisted and mischaracterized her record.

The Judiciary Committee's ranking Republican, Sen. Charles Grassley, was candid about GOP reasons for opposing Halligan, all but conceding that it is payback for Democrats stalling on judicial nominations when George W. Bush was president. Grassley said that six of President Bush's nominees, including now Chief Justice John Roberts, endured "delays, filibusters, multiple hearings, and other forms of obstruction."

Grassley also noted that Halligan is only 44 and that the D.C. Circuit Court has often been a stepping stone to the U.S. Supreme Court.

Tuesday's vote would seem to signal the end of a 2005 agreement between Democrats and Republicans to end the judicial wars in the Senate by barring filibusters except in extraordinary circumstances.

"GOP filibusters judicial nominee," by James Oliphant of the Los Angeles Times Washington Bureau.

The Senate GOP filibustered the nomination of Caitlin Halligan, a New York lawyer who had won praise from some conservatives.

Republicans said they were concerned about Halligan's record on gun rights and terrorism detainee issues. All but one — Alaska's Lisa Murkowski — voted to prevent her nomination from going to the floor for a final vote, where the judge could have been approved by a simple majority. The final tally was 54 to 45, six votes short of the 60 needed to break the filibuster.

It marked the second time this year that Republicans have filibustered a key Obama judicial nominee. They denied Californian Goodwin Liu a seat on the U.S. 9th Circuit Court of Appeals in San Francisco in May. (A few months later, Liu was appointed to the California Supreme Court by Gov. Jerry Brown.)

"Filibuster Tests Senate Agreement on Judicial Nominees," by Humberto Sanchez for Roll Call.

Senate Democrats on Tuesday warned that a GOP-led filibuster of a judicial nominee could threaten future nominees and that the move calls into question a six-year-old bipartisan detente on judicial filibusters.

“I am concerned that today the Senate is backing away from the 2005 agreement that the minority would only block judicial nominees in extraordinary circumstances,” Senate Majority Leader Harry Reid (D-Nev.) said in statement.

On a 54-45 vote, the Senate failed to cut off debate, or invoke cloture, on the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals, falling short of the 60 votes needed to overcome a filibuster.

“Since Ms. Halligan’s nomination clearly does not meet that standard, Republicans today lowered the bar for filibustering judicial nominees,” Reid continued.

"D.C. Circuit Nomination Fails Cloture Test," by Andrew Ramonas for Legal Times BLT.

Obama first nominated Halligan in September 2010, but the Senate Judiciary Committee did not hold a hearing or a vote on her nomination before the Senate adjourned last December. Obama renominated her for the judgeship in January, and the Senate Judiciary Committee in March voted 10-8 along party lines to report her nomination to the full Senate.

The court has three open slots. The first vacancy dates to 2005, when John Roberts Jr. became chief justice of the U.S. Supreme Court. If confirmed, Halligan would fill Roberts’ old seat.

Another vacancy stems from D.C. Circuit Judge A. Raymond Randolph’s decision to take senior status in November 2008. Judge Douglas Ginsburg produced the final open seat when he announced in October that he would become a professor at of New York University School of Law in January.

Finally, commentary from Dahlia Lithwick for Slate, "Punch and Judge Judy."  Here's the beginning of her must-read:

There is nothing funnier than Senate Republicans talking about judges. In the span of three hours today, Republicans went from extolling the sweet incomprehensible mystery of the legal process, to effectuating a rankly political filibuster of a highly qualified nominee to the D.C. Circuit Court of Appeals. At a hearing this morning about putting cameras into the Supreme Court, we heard high-minded GOP talk of de-politicizing the judicial branch and the impropriety of reducing whole cases to “snippets.” Within minutes, 54 Republicans had voted to deny cloture to Obama’s nominee, Caitlin Halligan, based on snippets of her writing and a partisan campaign to demonize her.

Halligan’s qualifications are not an issue. She clerked at the Supreme Court and then served for six years as New York State’s solicitor general. Halligan was endorsed by Supreme Court experts across the spectrum. She was nominated in September of 2009 to the federal appeals court, and reported out of committee last March. She was filibustered today by a long list of GOP senators—including members of the Gang of 14 that once agreed to avoid filibusters of judicial nominees except under what they termed “extraordinary circumstances.”

There were no extraordinary circumstances here. There were, in fact, no circumstances at all. Instead of scrutinizing Halligan’s qualifications, Senate Republicans went after her for some of her work as solicitor general of New York. She wrote a nuanced 17-page brief arguing that "the Legislature did not intend to authorize same-sex marriage." In the hands of GOP opponents, a single line from that opinion became evidence of “a record of advocating extreme liberal positions on constitutional issues.”

This is particularly astounding in light of the Republican rhetoric at this morning’s subcommittee hearing about televising Supreme Court proceedings. When Judge Anthony Scirica of the Third Circuit Court of Appeals started talking about the ways television allows for “snippets” of oral argument to be broadcast out of context, the Republicans were horrified. Oh no, not snippets! (“Snippets” is the judicial term of art for what would happen if Stephen Colbert got hold of videotapes of oral arguments.) All morning we were treated to the loftiest explications of how legal thinking is far too complicated for Americans to consume without their brains imploding from the effort. (In 1989 Justice Scalia explained, “That is why the University of Chicago Law Review is not sold at the 7-Eleven.”)

Earlier coverage of federal judicial nominations begins at the link.  Related posts are in the judiciary and politics indexes.

Mumia Abu-Jamal

The NAACP LDF has issued a statement, "Life Sentence for Mumia Abu-Jamal."

Today, the Philadelphia District Attorney’s Office announced that it will not seek another death sentence for Mumia Abu-Jamal.  Pennsylvania law now requires Mr. Abu-Jamal to be sentenced to life imprisonment without the possibility of parole for his controversial 1982 murder conviction in the shooting death of a police officer in Philadelphia, Pennsylvania.

The NAACP Legal Defense & Educational Fund, Inc. (LDF), along with Widener Law Professor Judith Ritter, represents Mr. Abu-Jamal in his appeals of the murder conviction and death sentence.  John Payton, Director-Counsel of LDF stated, “The District Attorney did the right thing.  After three long decades, it was time to bring the quest for a death sentence for Mr. Abu-Jamal to an end.”  Prof. Ritter added, “There is no question that justice is served when a death sentence from a misinformed jury is overturned.  Thirty years later, the District Attorney’ s decision not to seek a new death sentence also furthers the interests of justice.”

Mr. Abu-Jamal will be formally resentenced to life without parole in the Philadelphia County Court of Common Pleas.  The final sentencing hearing has not been scheduled.

LDF has more information on Abu-Jamal v. Beard.

The AP filing is, "DA dropping death penalty against Mumia Abu-Jamal," written by Kathy Matheson.

Prosecutors have called off their 30-year battle to put former Black Panther Mumia Abu-Jamal to death in the killing of a white police officer, putting to an end the racially charged case that became a major battleground in the fight over the death penalty.

Flanked by the police Officer Daniel Faulkner's widow, Philadelphia District Attorney Seth Williams announced his decision Wednesday.

"There's never been any doubt in my mind that Mumia Abu-Jamal shot and killed Officer Faulkner. I believe that the appropriate sentence was handed down by a jury of his peers in 1982," said Williams, who is black. "While Abu-Jamal will no longer be facing the death penalty, he will remain behind bars for the rest of his life, and that is where he belongs."

Abu-Jamal was convicted of fatally shooting Faulkner on Dec. 9, 1981. He was sentenced to death after his trial the following year.

Abu-Jamal, who has been incarcerated in a western Pennsylvania prison, has garnered worldwide support from those who believe he was the victim of a biased justice system.

The conviction was upheld through years of legal appeals. But a federal appeals court ordered a new sentencing hearing after ruling the instructions given to the jury were potentially misleading.

The U.S. Supreme Court declined to weigh in on the case in October. That forced prosecutors to decide if they wanted to again pursue the death penalty through a new sentencing hearing or accept a life sentence.

"Prosecutor ends 30-year quest to execute ex-Black Panther," by John Bacon at USA Today.

The Philadelphia district attorney said today he is dropping pursuit of death penalty against former Black Panther Mumia Abu-Jamal. the Associated Press reports.

The announcement comes two days before supporters of the former radio reporter, who was convicted in the 1981 murder of Philadelphia Police Officer Daniel Faulkner, will gather to mark the 30th anniversary of Abu-Jamal's arrest, ThePhiladelphia Inquirer says.

They will also pay tribute to Troy Davis, who was executed in September for the 1989 killing of a police officer in Savannah, Ga.

Abu-Jamal is being held at the state prison in Greene County in Western Pennsylvania, where he has gained fame for his death-row writings.

Earlier coverage of Mumia Abu-Jamal's case begins at the link.

Nebraska Update

"AG asks to stay on death-penalty case," is the title of Kevin O'Hanlon's Lincoln Journal Star report.

The Nebraska Supreme Court has been asked to reject a request that Attorney General Jon Bruning's office be forbidden from further handling the case of death-row inmate Michael Ryan.

Bruning's office has asked the high court to set an execution date for Ryan, but Ryan's lawyer argued last week that the office has twice advised the state Department of Correctional Services on purchases of the lethal-injection drug, sodium thiopental, that were called into question.

The first batch was ruled to have been imported illegally. How the state acquired the most recent supply also has come under scrutiny.

Ryan's lawyer, Jerry Soucie of the Nebraska Commission on Public Advocacy, noted that the pharmaceutical company that made the sodium thiopental Nebraska recently bought has asked the state to return it, saying it was obtained by deception.

The filing from Bruning's office, written by Solicitor General J. Kirk Brown, said Soucie's request is without merit.

And:

Corrections officials announced Nov. 3 they had purchased sodium thiopental made by Naari, a pharmaceutical company headquartered in Switzerland. But the news release did not mention that the drug, while made by Naari, was purchased from the company by a middleman named Chris Harris, who in turn sold it to Nebraska.

The CEO of Naari recently wrote to state officials saying the company wants its drug returned because it is deeply opposed to the use of its products in executions.

Earlier coverage of the Nebraska lethal injection drug dispute begins at the link.

News Coverage of Day Two of Arizona Trial on Execution Protocol

The AP filing is, "Part of trial on Ariz. executions closed to public," by Paul Davenport.  It's via the Deseret News.

A federal trial on death-row inmates' challenge to Arizona's execution practices was closed to the public Tuesday to keep secret the identity of a doctor who has helped conduct recent executions.

U.S. District Judge Neil Wake closed his courtroom because state law requires confidentiality for execution personnel amid controversy surrounding the death penalty and the possibility that participants may be harassed. Media-access attorneys say closing a courtroom is rare but allowed for a compelling government interest.

Wake is hearing inmates' claims they could be subjected to unconstitutional pain and suffering because execution drugs are injected in the groin area; execution personnel are unqualified and not fully vetted; and because a sheet shields the injections from witnesses' view.

Wake has ordered that a transcript of the doctor's testimony be released soon, but with identifying information redacted.

"That's the compromise" between the public interest in the execution case and the state's need to keep secret the identities of execution personnel, Wake said a day earlier in court as he outlined his intentions for Tuesday's court session.

The state's lawyers originally asked Wake to allow the doctor to testify via video from another location so the doctor would not have to go to the courthouse. Lawyers for the inmates said the doctor should appear in court but behind a screen and out of public view.

Wake said during a Nov. 15 hearing that the screen "sounds too much like the inquisition to me," and that he wanted to have the doctor testify in the courtroom. He is hearing the case without a jury.

The Deseret News also carried the AP account of the trial's first day, "Lawyers say Arizona not following execution rules," also by Davenport.

Lawyers for Arizona death-row prisoners said Monday the state is ignoring provisions in its own execution protocol — all contrary to what a judge had been told would be done.

U.S. District Judge Neil Wake, who signed off on the constitutionality of the state's step-by-step execution protocol two years ago, is now being asked to impose restrictions because of how the state is actually implementing key provisions.

The inmates' lawyers accuse the state of injecting the fatal drugs into prisoners' groins and under a sheet and letting unvetted personnel help carry out executions.

Wake ruled in 2009 that lawyers in a different case hadn't shown that inmates' constitutional protections against cruel and unusual punishment were substantially jeopardized by execution processes that the attorneys argued might cause pain or other suffering.

During opening statements in the new trial that began Monday, inmate attorney Cary Sandman told Wake that previous assurances by Corrections Director Charles Ryan that the state would follow its protocol have proved unreliable.

With promises made and not kept, "you've misled this court, the parties and the public," said Sandman, a federal public defender.

Ryan, who was the first witness to testify, acknowledged that his department failed to conduct required criminal background checks of execution team personnel. The failure, he said, was not intentional.

But Ryan said it's hard to recruit qualified injection-team personnel so he used his discretion to select a member, a department sergeant who was a military medical corpsman years ago but who doesn't have current experience in starting intravenous feeds.

Earlier coverage of the Arizona trial begins at the link.  Related posts are in the lethal injection index.

Morton Lawyers Put Prosecution on Defense

That's the title of Chuck Lindell's report in today's Austin American-Stateman, examining the latest developments in the Michael Morton exoneration.  Here's the beginning:

Combining tenacity with legal creativity, lawyers for Michael Morton are doing something that has never been attempted in the nation's 280 previous DNA exoneration cases: They're investigating the prosecutor who sent Morton away for a murder he did not commit.

Armed with court-given power not typically available to defense lawyers, Morton's legal team has pried open investigative files and forced former Williamson County District Attorney Ken Anderson to answer questions under oath and against his will.

The team has also combed court records and interviewed current and former county officials to flesh out allegations that Anderson hid evidence that could have spared Morton from serving almost 25 years in prison for the murder of his wife, Christine.

And now we know where all this effort is headed.

On Dec. 19, Morton's lawyers will provide a written report of their findings to District Judge Sid Harle, who took over Morton's case in August.

They'll discuss the report in open court with Morton likely to be in attendance.

And they'll conclude by asking Harle to take action against Anderson, though what type of action is something Morton's lawyers are keeping to themselves for the moment.

A hint, however, can be found in the transcript of an Oct. 3 hearing that took place in Harle's chambers. Morton lawyer Barry Scheck told Harle that they would return to his court if they found indications of misconduct by Morton's prosecutors.

"I do think that that might trigger other investigations," Scheck told the judge.

Bennett Gershman, a law professor at Pace University in White Plains, N.Y., and the author of several books on prosecutorial ethics, said several states have created innocence commissions to examine wrongful convictions in hopes of avoiding future mistakes.

But Gershman said he has heard of no similar post-exoneration investigations led by defense lawyers that seek to assign blame for a wrongful conviction.

Earlier coverage of Michael Morton's exoneration begins at the link.

Related posts are in the prosecutorial misconduct index.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Federal Trial in Arizona on Execution Procedure

"Trial on Arizona execution practices begins," is the title of Michael Kiefer's Arizona Republic report.  Here's an extended excerpt from the beginning of the article:

The lead plaintiff in the lawsuit has already been executed, but the questions remain.

Did the Arizona Department of Corrections violate its court-approved procedures for carrying out executions by lethal injection?

And although the department admits it purchased federally unapproved execution drugs from overseas, did it do so in bad faith? And does anyone -- including the court -- even care?

Those are the issues in a trial that began Monday in U.S. District Court in Phoenix. The Federal Public Defender's Office has sued Arizona on behalf of Thomas West, who was executed in July, and five other death-row inmates.

In his opening statements Monday, Assistant Federal Public Defender Cary Sandman said that, despite the execution protocol hammered out in federal court in 2009, the Department of Corrections repeatedly violated the agreement over five executions in the past 14 months.

Sandman said the department:

Did not ensure that only medically licensed individuals are hired to perform executions. Execution-team members are supposed to have work experience directly related to the duties they carry out in the execution chamber. One team member who is supposed to tend to intravenous lines is a correctional sergeant whose job has nothing to do with setting IV lines and whose experience is limited to his time as a military corpsman 15 years ago.

Did not do background and criminal-history checks on the medical-team members before executions. Among the criminal backgrounds, the plaintiffs found a DUI conviction and charges of public intoxication and passing a bad check.

Did not keep records of the team members' qualifications, because no such records were made.

Consistently delivered the drugs through a surgically implanted line in the groin instead of in an arm or leg as called for in the protocol.

"Laws were broken, all in the interest of getting executions done," Sandman said.

Ironically, in 2009, U.S. District Judge Neil Wake chastised an attorney from the Federal Public Defender's Office for suggesting that Corrections officials might not follow the protocol.

Sandman reminded Wake of those statements in court Monday.

But the state claimed that the deviations from the set procedure were either oversights or within the Corrections director's discretion.

The trial continues today. 

Earlier coverage of Arizona lethal injection issues begins at the link.  Related posts are in the lethal injection index.

Oklahoma Clemency Board Narrowly Rejects Commutation

"Clemency denied for Okla. death row inmate," is the McAlester News-Capital report written by Rachel Petersen.

The Oklahoma State Pardon and Parole Board voted 3-2 on Monday to deny clemency for Oklahoma death row inmate Gary Roland Welch, 49, who is scheduled to be executed Jan. 5 at 6 p.m. at Oklahoma State Penitentiary.

Welch received his death sentence in 1996 after he was found guilty of the Aug. 25, 1994, murder of 35-year-old Robert Dean Hardcastle. Welch is one of two men convicted of killing Hardcastle in Miami, Okla. Both Welch and his co-defendant in the case, Claudie Delbert Conover, were convicted of beating and stabbing Hardcastle to death with a knife and broken bottle on the side of the road in view of those who were passing by.

Both men were sentenced to death, though Conover’s sentenced was later reduced to life without the possibility of parole. Conover died of natural causes on Dec. 19, 2001, while incarcerated at Dick Conner Correctional Center in Hominy, said Oklahoma Department of Corrections Public Relations Officer Jerry Massie.

The AP filing is, "Board narrowly denies clemency for man convicted in 1994 stabbing death in Miami, Okla."  It's written by Sean Murphy, and is via the Republic.

The Oklahoma Pardon and Parole Board voted 3-2 on Monday to reject clemency for an inmate scheduled to die for the 1994 stabbing death of a man in Miami, Okla.

Gary Welch, who spoke to the board via video teleconference from the Oklahoma State Penitentiary in McAlester, maintained he killed 35-year-old Robert Hardcastle in self-defense and refused to apologize.

"I did what I had to do," said Welch, 49. "I didn't intend to kill him, but I certainly didn't intend for him to kill me, either."

Welch also insisted that he was not asking the board to grant him clemency.

"I'm not coming up here today crying, begging or sniveling for my life," he said. "I'm only here to speak my mind."

Welch has exhausted his appeals and is scheduled to receive a lethal injection on Jan. 5. His court-appointed attorney, Robert Wyatt, said after Monday's vote he plans to meet with his client, but that he doesn't anticipate filing any further appeals in the case.

Related posts are in the clemency index.  Welch's execution date is the first set in 2012.  According to TDCJ, Texas' first scheduled execution of 2012 is set for January 26.  To date, six Texas executions have been ordered for next year.

 

Martel v. Clair

Today's New York Times carries the editorial, "Lawyers in Capital Cases."  It coincides with today's Supreme Court oral arguments in the case of Martel v. Clair.

Problems with lawyers routinely plague death penalty cases. On Tuesday, the Supreme Court is scheduled to hear a case involving a California death-row inmate’s request that his court-appointed lawyer be replaced. The court should not use this narrow case to limit the ability of defendants to get the representation they need.

The issue in Martel v. Clair is the legal standard to use in deciding whether a condemned inmate can get a new lawyer. The United States Court of Appeals for the Ninth Circuit ruled that the district judge handling the case was required to examine the facts and decide “whether the interests of justice required substitution of counsel” when the inmate, Kenneth Clair, complained that his lawyer was not pursuing important evidence in his federal habeas corpus appeal.

Mr. Clair was convicted of murder and sentenced to death in 1987. In 2005, a federal judge denied his habeas corpus petition challenging his conviction as well as his request for a new lawyer. Mr. Clair’s lawyer appealed the judge’s ruling but also wrote a letter saying it would be best for new counsel to be appointed because the attorney-client relationship had “broken down.” After that judge retired, the Ninth Circuit appointed a new lawyer for Mr. Clair and a new judge was assigned to the case.

California contends that the appellate court was wrong to allow Mr. Clair to change lawyers “just because he expresses dissatisfaction” and that doing so sets off delays. It argues that, in capital habeas cases, substitution of counsel should be allowed only when the lawyer has abandoned the client, has a disabling conflict or does not have the required experience. The federal statute on appointment of counsel does not contain these restrictions, and there is no reason for the Supreme Court to impose such restrictions in capital cases involving replacing counsel.

The SCOTUSblog case file in Martel v. Clair contains all briefing.  SCOTUSblog also has an argument preview written by Edward Hartnett.

From Virginia

"Path to execution swifter, more certain in Va.," is the title of an extensive report in the Richmond Times-Dipatch written by Frank Green.  It appeared in the Sunday edition.  Here's the beginning:

Serving life in prison without possibility of parole, Robert C. Gleason opted to die by execution instead of old age and is Virginia's newest death-row inmate.

He earned the distinction by killing fellow prisoners in the state most likely to grant his wish. Since executions resumed in 1977, nearly three out of four condemned prisoners in Virginia have been put to death, the nation's highest rate.

Texas, which leads the United States in number of executions, is second to Virginia, carrying out less than half its death sentences. In most death-penalty states, the ratio is fewer than 1 in 10.

While Virginia's record is clear, its causes and implications are in dispute.

Authorities say Virginia's capital-murder law was tightly written and that trial and appeal courts here do a better job than elsewhere; critics argue Virginia trials have plenty of errors and that unlike elsewhere, appeals courts fail to catch them.

"I think the answer is that there is a little truth in both views," said Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. "Virginia's law was indeed more tightly drafted, but post-conviction review is less aggressive than in other states."

Bonnie, who added that he doesn't have "a horse in this race," cautioned that while the execution ratio in Virginia is striking, "one has to be very careful about generalizing from the data."

Virginia inmates spend half the time, 7.1 years, from sentencing to execution than the average wait nationally, and the relatively large number of executions and fewer death sentences here has left just 11 killers on death row.

The Times-Dispatch also carries a sidebar, "About Virginia's 11 death-row inmates," also by Green.