The StandDown Texas Project

Wrongful Convictions: A New Exoneration Registry Tests Stubborn Judges

That's Andrew Cohen's latest post at the Altantic looking at the impact of the National Registry of Exonerations.  It's a must-read.

Last Monday, investigators, lawyers, and writers at the Columbia Human Rights Law Review published a groundbreaking book-length piece chronicling how Texas executed an innocent man in 1989. The piece is remarkable for how deep down its authors dug to establish how and why Carlos DeLuna was executed for a crime that Carlos Hernandez almost certainly committed. Old news, proclaimed Texas prosecutors (on Twitter, no less) last week, and to a certain extent they are right. It's hard to get people focused upon a case that's a generation old. It's what has happened since DeLuna that matters.

And that's why this Monday brings such another important contribution to the debate over criminal justice in America. Early this morning, a vital new entity, the National Registry of Exonerations, published its first-ever report that picks up where the DeLuna case left off. The study results are grim: By one measure, at least 2,000 people have been falsely convicted of serious crimes in America since 1989. If Columbia Law School dug to the depths in a single case, the Registry has scanned wide the horizon in hundreds of cases to reveal both the progress made and the scope of the problem that remains.

A joint project administered by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University, the Registry profiled 873 specific cases of exoneration from 1989 through March 1, 2012. Not surprisingly, most of the men and women who were wrongfully convicted (61 percent) were black or Hispanic. As a group, the 873 exonerated defendants spent more than 10,000 years in prison -- an average of more than 11 years each. And of the 873 exonerees, nearly half, 416 to be exact, were wrongly convicted of murder. Of those, 101 were sentenced to death.

How does this happen? Why are there so many wrongful convictions when there is so much at stake for both the defendants and the victims and when we pride ourselves on a legal system designed to ensure meaningful judicial review? The reasons are legion. It matters where you are convicted, for example, and the color of your skin matters too. And it matters who your police and prosecutors and judges are. The report reveals that in a whopping 56 percent of murder-case exonerations the initial convictions was based upon "official misconduct." Carlos DeLuna, we know, was not alone.

The Registry tells us that there have been 102 exonerations of child abuse convictions, 58 exonerations in cases of non-violent crimes and 135 exonerations of defendants who actually confessed to crimes they didn't commit. It tells us more than I can list here, which is why it is so well worth reading.

Earlier coverage the Registry begins at the link.

Additional Coverage of the DeLuna Report

Reuters posts, "Capital mistake?" by Terry Baynes.

In his career as a Columbia Law professor, James Liebman has penned his share of technical law review articles arguing against capital punishment. But to illustrate how the justice system could execute an innocent man, Liebman wanted a more visceral reaction from readers. To get it, he teamed up with a group of his students and after some extensive research, homed in on the case of Carlos DeLuna, a poor Hispanic with an IQ of 72 who was executed in Texas in 1989 for the stabbing death of a gas station clerk in Corpus Christi.

The resulting narrative reads like more like Norman Mailer's "Executioner's Song" than your typical Columbia Human Rights Law Review entry. The journal published the article today, along with an innovative interactive website that allows readers to review every piece of evidence in the case online, from police audiotape and trial transcripts to crime scene photos and video interviews. "Presented that way, people can make a judgment for themselves," said Liebman.

"Report says Texas executed an innocent man," is the UPI report.

A 400-page article in Columbia University's Columbia Human Rights Law Review asserts Texas convicted and executed the wrong man in a 1983 killing.

The article examines the arrest, prosecution and 1989 execution of Carlos DeLuna in the death of Wanda Lopez, 24, who was fatally stabbed during a robbery at a Corpus Christi gas station, the Houston Chronicle reported.

In prosecuting, DeLuna, the state bypassed Carlos Hernandez, a man who the article said had bragged about killing Lopez and laughed about DeLuna being convicted of the crime.

Today's Houston Chronicle reports, "Eyewitness procedure flawed in DeLuna murder case, lawmakers say," by Allan Turner.  It's also available at the Hearst sister-paper, the San Antonio Express-News.

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

"Columbia Human Rights Law Review releases study on Corpus Christi man executed in 1989," by Michelle Villarreal in the Corpus Christi Caller Times.

Carlos DeLuna, executed in 1989 for the murder of a Corpus Christi woman, was innocent, a 400-page report released Tuesday states.

The Columbia Human Rights Law Review report detailed the events of his July 1983 trial for the death of Wanda Lopez and how he was wrongly executed.

Columbia Law School professor James Liebman and students conducted the study to contribute to a public debate of the death penalty specifically arguing that it is an ineffective form of punishment, Liebman said.

The DeLuna case was chosen after Liebman did a study on courts across the country and how they handled legal error. Executions piqued his interest and he started looking at Texas death penalty cases.

“One of the very first cases we came across was the Carlos DeLuna case, who said all along that another man murdered the woman,” Liebman said.

Slate posts, "Report: Texas Executed Innocent Man," by Rachael Levy.

Carlos DeLuna maintained his innocence from the moment he was arrested in 1983 for the stabbing death of a young Texas woman right up until he was executed six years later. On Monday, a Columbia University professor and a group of law students offered what appears to be definitive proof that DeLuna's mistaken-identity claims were the real deal and that an innocent man was put to death.

"10 Shocking Bits From Book About How Texas Executed an Innocent Man," by Ben Jacobs at Daily Beast.  Here's the Beast's first bit:

Ignored By 911

Wanda Lopez was a divorced single mother and high-school dropout who worked the 3–10 p.m. shift behind the register at the Sigmor Shamrock gas station and convenience store. It was in a rough neighborhood in Corpus Christi, located next to a strip club called Wolfy’s. At 8:09 p.m., she called 911 in a panic. She immediately asked “[C]an you have an officer come to 2602 South Padre Island Drive? I have a suspect with a—a knife inside the store ... He’s a Mexican. He’s standing right here at the counter.” Instead, the 911 operator, Jesse Escochea, who wasn’t supposed to be answering calls and just picked up the phone because everyone else was occupied, quizzed her for 77 seconds because he thought she had “an attitude.” He didn’t dispatch a police car until after Lopez had been fatally stabbed in her chest while asking for help. It later emerged that the reason for her “attitude” was that she had previously called 911 about the same man loitering outside the door and was told to immediately call back if the man entered. If the regular 911 operator had answered, help would have come right away and Wanda Lopez might not have been stabbed.

"Did Texas Execute an Innocent Man?" is Jordan Smith's Austin Chronicle report.

It’s been 23 years since Carlos De Luna was executed by lethal injection for the 1983 attempted robbery and murder of Wanda Lopez at a Corpus Christi gas station; this week, a book-length law review article was released that meticulously deconstructs the case – and makes it almost undeniable that Texas has executed an innocent man.

In the years since De Luna’s execution, serious questions have been raised about whether De Luna was actually responsible for the crime. This week, the Columbia University School of Law’s Human Rights Law Review publishes “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” dedicating the entire issue to unfolding the De Luna case with an eye toward what went wrong – and what the ramifications are for Texas and beyond. Indeed, the article, by Professor James Liebman and a group of law students, presents the strongest evidence yet that the state of Texas has convicted and killed an innocent man, Carlos De Luna, and failed completely to catch the real killer, Carlos Hernandez, despite compelling evidence that pointed directly to his guilt. De Luna, who repeatedly claimed innocence, was executed in 1989. “Two things are clear right off the bat,” says Liebman. “One, on the evidence [that we now have, it is clear] Carlos De Luna could never have been convicted” because there’s simply too much doubt. “Two, if that evidence had been put [to use to prosecute] Carlos Hernandez, there is no doubt [Hernandez] would have been convicted.”

Kristin Houle posts, "Did Texas Execute an Innocent Man?" at Burnt Orange Report.  She's the executive director of the Texas Coalition to Abolish the Death Penalty.

Everything that could go wrong in a death penalty case did so for Carlos DeLuna, a poor Hispanic man with childlike intelligence who maintained his innocence from the time of his arrest to his execution just six years later.  Among the many issues calling into question the reliability of DeLuna's conviction are:

- A single cross-ethnic eyewitness identification conducted at night, at the crime scene, while the suspect was in the back seat of a police squad car;
- No corroborating forensics and a sloppy crime scene investigation;
- Grossly inadequate representation at the trial and appellate levels, including failure of his court-appointed attorneys - one of whom had never tried a criminal case in court, let alone a capital murder case - to present any witnesses or mitigating evidence during the sentencing phase; and
- Prosecutorial failure to turn over potentially exculpatory evidence to the defense.

"New book aims to show executed man was innocent," by Melanie Eversley at USA Today.

"Questions About Another Texas Execution: Was Wrong Man Condemned?" is by Mark Memmott at NPR.

Lucy Steigerwald posts "Columbia Professor and Students Reveal Texas Justice Executed the Wrong Man in 1989," at Reason.

"Human Rights Law Review Reveals Troubling Picture of Wrongful Execution," by Jeremy Leaming at ACS.

Andrew Cohen on the DeLuna Case

"Yes, America, We Have Executed an Innocent Man," is Andrew Cohen's post at the Atlantic.  He begins his report on Carlos DeLuna and the Columbia Human Rights Law Review article with a 2006 Supreme Court death penalty case.

Even for Justice Antonin Scalia, the crassest of the current United States Supreme Court justices, it was a particularly callous piece of writing. In 2006, in a case styled Kansas v. Marsh, the Court's five conservatives had just upheld a portion of Kansas' capital punishment law. The statute was interpreted to direct a sentence of death even if a jury found the "aggravating" and "mitigating" sentencing factors in equilibrium -- "equipoise," the Court lyrically called it. A tie, in other words, would mean death, not life.

For the majority, Justice Clarence Thomas had bent over backward to overturn a ruling by the Kansas Supreme Court that had declared the law unconstitutional. The High Court's four liberal justices had voted to uphold the Kansas ruling. Justice John Paul Stevens, the Ford appointee, chastised Thomas for reaching out so aggressively to overturn a state court on a matter of state law. And Justice David Souter, the Bush I appointee, wrote about how such "equipoise" necessarily precluded a death sentence.

Mocking the rationale of both, and unsatisfied with the scope of Justice Thomas' majority opinion, Justice Scalia wrote a concurrence he will have to live with the rest of his life. As he sought to destroy Justice Souter's argument about the doubts reasonable people have about the accuracy and reliability of America's death penalty regime, Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news.

And:

At 11 p.m Monday, the Columbia University Human Rights Review published and posted its Spring 2012 issue -- devoted entirely to a single piece of work about the life and death of two troubled and troublesome South Texas men. In explaining to their readers why an entire issue would be devoted to just one story, the editors of the Review said straightly that the "gravity of the subject matter of the Article and the possible far-reaching policy ramifications of its publication necessitated this decision."

The article is titled "Los Tocayos Carlos: Anatomy of a Wrongful Execution" and it was written by James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, Lauren Rosenberg and Daniel Zharkovsky. Los Tacayos can be translated from Spanish as "namesakes" and the two men at the heart of the story were, indeed, named Carlos DeLuna and Carlos Hernandez.. On December 7, 1989, this intense piece establishes beyond any reasonable doubt, Texas executed the former for a murder the latter had committed.

The Review article is an astonishing blend of narrative journalism, legal research, and gumshoe detective work. And it ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976. The article is also a clear and powerful retort to Justice Scalia in Kansas v. Marsh: Our capital cases don't have nearly the procedural safeguards he wants to pretend they do.

Earlier coverage of Carlos DeLuna and the HRLR article begins at the link.

The Case of Steven Staley

Emily Bazelon writes, "Texas Wants To Drug a Prisoner So They Can Kill Him," at Slate.  It was posted Friday afternoon.  Staley is scheduled to be executed May 16.

Can the state force a person to take drugs in order to execute him? That is the grisly question raised by the case of Steven Staley, a convicted murderer who believes polygraph machines are controlling and torturing him. Even though he’s psychotic, Staley is scheduled to be executed next week, based on a judge’s order requiring him to take medication he has refused. If Texas actually goes ahead with this deeply disturbing plan, it will be the first state, as far as I can tell, to drug someone in order to carry out a death sentence. That is a distinction that no one on the planet should want to have.

And:

Staley was found competent to stand trial back in 1991. The standard is low: A defendant has to be able to understand the charges against him and consult rationally with his lawyer so he can aid in his own defense. The standard for competency at execution was set by Ford v Wainwright, a 1986 case in which the Supreme Court said that the Eighth Amendment’s bar against cruel and unusual punishment forbids execution of the “insane.” Indeed, at the time no state permitted such an execution. The court quoted British judges in the 17^th century worrying about the “miserable spectacle” of “extream inhumanity and cruelty” presented by executing a “mad man.” It served no retributive purpose, Justice Thurgood Marshall wrote, to execute a person “who has no comprehension of why he has been singled out.” He also noted “the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity.”

The problem with Ford is that the justices’ holding didn’t match their rhetoric. A defendant can be executed as long as he shows some rational understanding that he is about to die and why. Many people with serious mental illness can grasp those basic facts, at least on some level. Among the many examples of seriously mentally ill people who have been found competent to be tried and executed is Scott Panetti, a delusional schizophrenic who represented himself in 1995 dressed in a purple cowboy suit. Panetti tried to call Jesus Christ and John Kennedy as witnesses.

The lastest AP report is, "Texas death row inmate's mental health questioned," by Michael Grazcyk.  Here's an extended excerpt:

The outcome of legal wrangling about condemned killer Steven Staley's mental health is likely to determine if the former laborer is put to death this week in Texas for a slaying almost a quarter-century ago in Fort Worth.

Prosecutors contend he's competent to be executed. His lawyer says Staley is severely mentally ill, suffering from paranoid schizophrenia, and has been observed catatonic or lying on the floor of his jail cell covered in urine.

Staley, 49, faces lethal injection Wednesday evening for the fatal shooting of a Steak and Ale restaurant manager who was taken hostage during a botched robbery in October 1989. The arrest of Staley and two accomplices after a wild 20-mile car and foot chase ended a series of robberies, assaults and at least one other killing as the trio wreaked havoc in Colorado, Kansas, Oklahoma and Texas.

In a written statement, Staley implicated himself in the slaying of 35-year-old Bob Read. And since he arrived on death row in 1991, his mental competence became an issue as his punishment neared.

Prosecutors say he's legally competent, and state District Court Judge Wayne Salvant has ordered him to be medicated, by force if needed.

"If he was found not to be competent, the trial judge would just withdraw the (execution) date," said Jim Gibson, an assistant district attorney in Tarrant County, where Staley was tried and convicted.

Staley also has been examined by psychologists, who determined the prisoner was competent.

"Everybody agrees he's competent," Gibson said. "... I think the issue is going to be why he's competent."

Staley's lawyer, John Stickels, calls the competency artificial.

"The state has given him enough psychotropic drugs that the judge found he met the definition to be competent to be executed," said Stickels, who is asking the courts to halt the execution. "The whole reason he's been medicated is to make him competent to be executed."

Staley's previous attorney called him "too nuts to be executed" when the courts stopped a scheduled execution in 2005. And Stickles said Staley's severe mental illness has existed for several years and has been exacerbated by the forced drug regimen Stickles argues was illegally ordered by Salvant.

If lower courts refuse to stay the execution, Stickles said he'll take his case to the U.S. Supreme Court, which he said has not addressed the question of involuntary medication for the purposes of execution.

Earlier coverage of Steven Staley's case begins at the link.

 

More From David Protess on the Hank Skinner Case

"Texas Lawman to High Court: DNA Testing "Frivolous" in Death Penalty Case," is David Protess' latest at Huffington Post.  He's President of the Chicago Innocence Project.

Texas law enforcement officials have come up with some mighty creative legal arguments over the years to justify executing Hank Skinner without first testing evidence that could prove his innocence -- or confirm his guilt.

At times, they claimed the tests would be costly to the taxpayers. Then Skinner's legal team agreed to pay for the tests.

Shifting gears, they argued that Skinner had waived his right to the tests when he didn't request them before his trial. Then Gov. Rick Perry signed legislation that ensured post-conviction DNA testing in cases like Skinner's.

So, at the Texas Court of Criminal Appeals on Wednesday, they needed an imaginative pitch to persuade the nine judges not to apply the new DNA law to Skinner's case. That chore fell to Solicitor General Jonathan Mitchell, who told the judges -- presumably with a straight face -- that the request for DNA testing was merely a "frivolous" attempt to delay Skinner's execution.

Earlier coverage of Hank Skinner's fight for DNA testing begins at the link.

Victims' Families Boost Conn. Death Penalty Repeal

That's the title of an AP report written by Shannon Young.  It's widely distributed and also available via the Fort Worth Star-Telegram and many other outlets.  In theme, it picks up where Susan Campbell's Hartford Courant column leaves off.   Here's the top:

The vote to repeal Connecticut's death penalty brought a moment of triumph for Elizabeth Brancato, a lifelong opponent of capital punishment despite the murder of her mother in 1979.

Brancato had lobbied lawmakers for years, becoming more resolved against capital punishment as she met families of other victims frustrated by endless appeals. She also started a blog to highlight the voices of other victims' relatives in favor of repeal that she felt were overshadowed in the debate.

She was at the statehouse Wednesday night as the state legislature gave final approval to a bill that will make Connecticut the 17th state to repeal capital punishment. A week earlier, she was in the gallery when it cleared its biggest hurdle with an early morning vote in the state Senate.

"It was one of the best moments of my life," Brancato said.

Brancato is among roughly 180 relatives of crime victims who pushed for repeal in private meetings with lawmakers, via petition drives and at news conferences. National advocates say the large size of their campaign sets Connecticut apart from other states, but relatives who oppose the death penalty are speaking up more often across the United States.

On the other side of the debate, death penalty supporters had perhaps the state's most compelling advocate in Dr. William Petit Jr., the only survivor of a 2007 home invasion in which two paroled burglars killed his wife and two daughters. Last year, Petit successfully lobbied state senators to hold off on legislation for repeal while one of the two killers was still facing a death penalty trial.

This year, many lawmakers said they were swayed by the stories of people who oppose capital punishment despite losing loved ones to horrific crimes.

This is an excellent time to once again point to the blog, Connecticut Murder Victims' Families Speaking Out Against the Death Penalty.

Earlier Connecticut coverage begins in the preceding post.  Related posts are in the vicitims' issues index.

The Latest From Mark Osler

University of St. Thomas Law prof Mark Osler posts, "Lent and the Hidden Cost of Capital Punishment," at Huffington Post.  He's a former federal prosecutor.  It's a must-read.

Christianity is an odd religion in that the central human figure, Christ, is executed by the state. We don't see that in other faiths: Siddhartha Gautama Buddha died of food poisoning at age 80, and the Prophet Muhammad died of natural causes at 63.

It should mean something to Christians, then, that an execution is at the center of the faith and this season of Lent. One part of that meaning could have something to do with those who were a part of the process -- the prosecutor, the judges, the witnesses and executioners. The process of execution led them all to some form of ruin: Judas, the government cooperator, was torn asunder; Peter, called to be a witness, denied Christ; Caiaphus, the prosecutor, was so tortured he tore at his clothes; Pilate, the person who decided clemency, was tortured by the decision; and even the Centurion guard at the execution itself cried out at the injustice he saw.

These broken people of the gospels foreshadow a terrible cost hidden within our current use of the death penalty.

And:

The characters in the story of Lent are people who are very real in their strengths and weaknesses. It must mean something that they are shown in the gospels as so tortured by being a part of the machinery of death. The question left to us by this aspect of the gospel story is nothing less than this: Setting all else aside, is the death penalty worth the cost to these innocents, the citizen-jurors and dutiful workers?

Earlier coverage of Osler's book, Jesus on Death Row: The Trial of Jesus and American Capital Punishment, begins at the link.  Earlier commentary by Osler is also available.

More on the Phan Case & Georgia Indigent Defense

"Khahn Dinh Phan, Accused Killer, Could Go Free If Public Defender Problems Persist, Says Georgia Court," is the title of a report by John Rudolf at Huffington Post.

The case of a Georgia man who has spent nearly seven years in jail waiting for his death-penalty trial to begin is an "egregious" example of the state's failure to provide sufficient funding for indigent defense, a former Georgia Supreme Court chief justice said Thursday.

"It is egregious when seven years go by and you still haven't been tried," Norman S. Fletcher, who retired as chief justice of the Georgia Supreme Court in 2005, said in an interview with The Huffington Post. "The state has not lived up to its obligations."

On Feb. 27, the Georgia Supreme Court rejected an appeal by Khahn Dinh Phan, charged with two counts of murder, to have his case dismissed because the state had violated his constitutional right to a speedy trial. Phan has been jailed in Gwinnett County, Ga., about 30 miles northeast of Atlanta, since his arrest in March 2005.

While the court denied the motion, Chief Justice Carol Hunstein noted in the decision that further delay in the case could well "tip the scales" in Phan's favor and lead to his release. "We warn the clock is still ticking," Hunstein wrote.

The court found that the delay in Phan's case was largely attributable to Georgia's failure to provide sufficient funds for him to mount a defense in the death penalty case, part of a system-wide shortage of funding statewide.

The Georgia Supreme Court ruling in Phan v. The State is available in Adobe .pdf format.

Earlier coverage of the Phan case begins at the link; also, other Georgia indigent defense issues.

Innocence & Execution

"The Death Penalty and Decedent's Reputation," is the title of Christopher Brauchli's Huffington Post essay.  He's a Colorado attorney.  Here's an extended excerpt:

It is not the purpose of this column to take sides in the ongoing debate about the applicability of foreign laws to our own justice system but rather to suggest that at least one recent example of a foreign proceeding might be worth imitating in the United States. Our instructor in this procedure is Sergei L. Magnitsky and the process entitled to thoughtful consideration is found in Russia.

Mr. Magnitsky was a Russian lawyer who was arrested for allegedly having tried to expose a tax fraud perpetrated by officialdom. He said that certain interior officials had embezzled $230 million from the Russian Treasury. Arrested in 2008, he died in prison in 2009. His family said that he had not received proper medical care.

Mr. Magnitsky has now been dead for more than 2 years. In early February it was announced that the government intended to try Mr. Magnitsky for tax evasion, the offense for which he had been arrested, notwithstanding the fact that he was dead. According to reports, this would be the first posthumous prosecution ever to take place in Russia. Russian officials explained it would permit relatives and supporters to clear his name; or, alternatively, vindicate the officials who had been accused of corruption.

The government recognizes that this is a somewhat unusual procedure and sent a letter to Mr. Magnitsky's mother offering to drop the case if relatives had no "desire to protect the honor and dignity of the deceased." As of this time there is no word on whether she thinks the trial should proceed or whether she is content to have her son remembered as an accused man rather than a victim of a false accusation. The question readers are no doubt asking themselves is how this foreign procedure could be applied to United States proceedings. The answer is by adopting the Russian procedure in death penalty cases.

One of the arguments against the death penalty is that once it has been administered the results are final and the case is over. There is no way for someone who has been executed to clear his name. Troy Davis, formerly of Savannah, Georgia, for example, was on death row for many years. A large contingent of prominent citizens had come to his defense asserting that he was not guilty of the crime for which he was to be executed. Among his defenders were former president Jimmy Carter, Pope Benedict XVI (who opposes the death penalty was well as contraception), former Georgia Supreme Court Chief Justice Norman Fletcher and other prominent citizens. Appeals exhausted, Mr. Davis was executed September 20, 2011. Here is where the Russian example could usefully be invoked.

The Knoxville News Sentinel recently reported on a 1922 Tennessee execution that still reverberates, "Maurice Franklin Mays: Died claiming innocence but conviction stands."  It's written by Matt Lakin, and appeared om the February 26 edition.  Here's the beginning:

He walked to the electric chair on crutches, declaring his innocence with his dying breath.

Maurice Franklin Mays shook the hand of his executioner and settled into the death seat.

"I am as innocent," he said, "as the sun that shines. I hope the politicians are satisfied."

The electric current cut off the condemned man's last words. Four minutes and 2,800 volts later, a prison doctor pronounced him dead at age 35.

The specter of Mays' death still haunts his home city and Tennessee's judicial system, nearly nine decades after his execution for a crime that drew outrage on a level not seen again until the Chipman Street killings of 2007. Mays took his last steps inside the death house in Nashville that morning of March 15, 1922, but his life effectively ended the moment a white woman called him a killer during a lightning-quick lineup under a North Knoxville streetlight in 1919.

His name carries that stain to this day.

 

Bryan Stevenson at TED

Bryan Stevenson, leader of the Alabama-based Equal Justice Initiative, has a TED Talk, "We need to talk about an injustice."  It's a much-watch.

In an engaging and personal talk -- with cameo appearances from his grandmother and Rosa Parks -- human rights lawyer Bryan Stevenson shares some hard truths about America's justice system, starting with a massive imbalance along racial lines: a third of the country's black male population has been incarcerated at some point in their lives. These issues, which are wrapped up in America's unexamined history, are rarely talked about with this level of candor, insight and persuasiveness.

Bryan Stevenson is the founder and executive director of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system

One takeaway:

"We have a system of justice in [the US] that treats you much better if you're rich and guilty than if you're poor and innocent. Wealth, not culpability, shapes outcomes.”

He will be the keynote speaker at a UT Law symposium later this month in Austin, Lynching and the Death Penalty, noted at the link.

A Craig Watkins Interview

At the Dallas Morning News Opinion blog, Rodger Jones posts, "Craig Watkins on Craig Watkins," highlighting a KXAS-TV interview with the Dallas County District Attorney.

I recommend watching a very good interview that Channel 5 reporter Randy McIlwain did with District Attorney Craig Watkins this week. It was after Watkins went to Huntsville to witness the execution of Texas Seven ringleader George Rivas on Wednesday.

The interview lasts more than 30 minutes, and it's worth a listen if you care about justice, politics, history, the morality of the death penalty - you know, important things.

It's also a powerful interview on an emotional level. Watkins describes the other thing he went to Huntsville to do: find the grave of his great-grandfather, who was executed for a rape-murder-robbery in 1932. He found that headstone in the prison cemetery.

Watkins was in Huntsville to witness last week's execution of George Rivas. 

The complete Watkins interview is available through KXAS-TV, and is embedded in Jones' DMN post.

Earlier coverage of Dallas County District Attorney Craig Watkins begins at the link.

George Rivas & Capital Punishment

Tod Robberson, a Dallas Morning News Editorial Writer, posts, "George Rivas makes the best case not to have a death penalty," on the paper's opinion blog.

I'm not one of those people who believes the death penalty is wrong in all cases. Some people deserve to die, and George Rivas was probably one of them. The mastermind of the Texas Seven prison breakout was put to death in Huntsville on Wednesday.

Lots of people deserve to die. And all of us will die, whether we deserve it or not. It's a question of timing and choosing. For most people, we neither get to choose the time nor place. In death penalty cases, the time and place is known to all. The idea is that the convicted killer will have to sit and think about his fast-approaching death so he will be forced to confront the magnitude of his crime and perhaps be terrorized by the fact that, soon, his life will be terminated for what he did. So far, that doesn't trouble me -- in some cases.

But I have always felt that for cold-blooded killers like George Rivas, the death penalty is too good. I feel the same for 9/11 mastermind Khaled Shaikh Mohammed. I want these guys to spend their entire long lives knowing that they will never, ever, set foot outside a prison wall again. They will never see the ocean. They will never watch the sun set. They will never enjoy life on this planet as a free person. I want them to suffer in the blank, bleak, unyielding solitude of incarceration for the duration of their natural lives. Then die.

And:

For me, the best case to be made against the death penalty is that prison sentences with no possibility of parole ensure that the killer will indeed stay alive and be forced, every single day of his miserable, natural life, to confront the fact of his crime. The freedom of death is too good, especially if you're someone like George Rivas, who obviously had no fear of death and viewed it not as his punishment but as his reward.

Earlier coverage of the Rivas execution is at the link.

Reggie Clemons is Troy Davis

That's the title of David Love's latest at Huffington Post.  He's the executive director of Witness to Innocence.

The case of Reggie Clemons represents everything that is wrong with the death penalty and the U.S. criminal justice system.

His case reminds us of Troy Davis, a black man who was executed by the state of Georgia in September, despite strong evidence of innocence, no physical evidence, another suspect and unreliable witnesses, not to mention worldwide protests.

In 1993, Clemons was sentenced to death in St. Louis, Missouri as an accomplice to the 1991 murder of Julie and Robin Kerry -- two white women who plunged to their deaths off the Chain of Rocks Bridge into the Mississippi River. He was 19 at the time of the killings, with a clean record.

He was beaten by police, denied a lawyer, and coerced into making a false confession. As Amnesty International reported, there was no physical evidence linking Clemons to the murders. Even the prosecution admitted that Clemons did not murder the victims, nor did he plan the crime.

And:

Police torture and false testimony, crooked prosecutors and a stacked jury, incompetent defense counsel and missing evidence. Let's not forget raw racism. These are the key ingredients of a horrid dish called American justice. And sadly, this is why Reggie Clemons is facing execution. This is a prime example of what happens when criminal behavior in the police station and the courtroom sends an innocent man to his death. But unlike Troy Davis in Georgia, Cameron Todd Willingham, Ruben Cantu, Carlos DeLuna, or Larry Griffin in Missouri, Reggie Clemons is still alive. There is still time to save him. We can fix this.

On the other hand, we cannot fix our system of capital punishment. According to the Death Penalty Information Center, since 1973, 140 innocent men and women have been freed from death row in 26 states, each spending an average of nearly 10 years in prison awaiting execution.

Earlier coverage of Reggie Clemons' case begins at the link.

DP9 - A New Blog

Thanks to Jeff Ellis for sending word of a new blog, DP9,.  It's produced by the Oregon Justice Resource Center and is focused on capital punishment issues and litigation in Oregon and in the Ninth Circuit.  It looks very well organized and should be an excellent resource.  I'll add it to the left-column webroll of death penalty blogs, next.

Ellis says he hopes, "the blog will begin to fill at least part of the gap left when CapDefWeekly shut down."

I noted the passing of Karl Keys' excellent Capital Defense Weekly, last year.  Fortunately, the Capital Defense Weekly archives are still available.

The Connecticut Repeal Debate

"Victims Support Death Penalty Repeal in Connecticut," is the title of Chicago death penalty lawyer Andrea Lyon's latest post at Huffington Post.  She teaches at DePaul University's law school.

A recent study by former Yale Law School Professor Donohue has shown that the death penalty is given in Connecticut far more based on race and location of the victim than any other factor. "There is no way to distinguish the few that are singled out for death from the many death-eligible defendants that receive lesser sentences,'' Donohue concludes. "Some judicial districts in the state punish identical crimes drastically differently from those in other parts of the state. The defendant's and victim's races play a crucial role in deciding who is charged with a capital felony and who receives a death sentence.'' These facts should give the state legislature pause, as well.

But these facts are not what is unique about this effort at repeal. As I have written before, it's murder victim's families that are driving this repeal effort.

Recent posts by these victims family members show that they are fed up with the death penalty and starting to demand repeal and policies that will actually help them. A death sentence doesn't help them bury their dead, tend to psychological fallout from the violence in their families, or help with schooling or other expenses that their loved one can no longer provide.

In order to be certain to be heard, these Connecticut families have a forum: Connecticut Victim's Families Speaking Out Against the Death Penalty. Elizabeth Brancato, a Torrington, Connecticut woman whose mother was murdered, has started this blog to give voice to the many victims' families who have been failed by the death penalty system. On February 6th the blog talked about the ugliness of the death penalty.

As linked above, you can visit the Connecticut Victim's Families Speaking Out Against the Death Penalty website.

Earlier coverage from Connecticut begins at the link.  Related posts are in the victims' issues and state legislation indexes.

Commentary on the Mississippi Pardons

Let's start with the editorials and commentary in this post; news coverage, in the next.

Today's Jackson Clarion-Ledger carries the editorial, "Pardons: 'Divine' right trumps victims?"

In his way out the door of the Governor's Mansion, Haley Barbour caused a firestorm of citizen anger by pardoning more than 200 convicted felons.

Barbour seems to have underestimated the amount of citizen ire this decision would cause. It's puzzling on several fronts. For example, as Attorney General Jim Hood noted in temporarily blocking the pardons in court, the Mississippi Constitution may have been ignored by failing to publish 30-days notice about the pardons.

Also, some of these pardons were poorly vetted, for crimes that are still fresh and even premeditated crimes that cannot be simply dismissed as crimes of "passion."

They appear not well researched, which runs against Barbour's history as governor. He has never been so sloppy. Nor in two full terms has he been so insensitive to the politics of a situation.

The Mobile Press-Register editorial is, "Barbour's action was hasty, imprudent and offensive."

Whatever a state's constitution allows, though, usually gives critics little recourse.

That being said, it's going to be up to Mississippi voters to decide whether they are willing to continue to trust their governors with this power. Some politicians are already talking about pushing for a constitutional amendment to change the system, which would need a vote of the people.

Mississippi Attorney General Jim Hood was right to press for a halt to further releases, which a judge granted Thursday. All 200-plus pardons demand a thorough airing. If some warrants were pushed through hurriedly and did not provide sufficient notice, they need to be addressed.

But in the long run, Mississippi's going to have to live with what the law allows -- or act to change it.

Former White House speechwriter Mary Kate Cary writes, "Haley Barbour Was Right to Issue Those Pardons."

Back in the 1990s, I wrote many speeches for Gov. Haley Barbour when he was the head of the Republican National Committee. Now he's finishing his second term as governor of Mississippi and had a lot of people urging him to run for president this year. When you write a lot of speeches for someone, you get to know that person pretty well. Haley Barbour is an honorable, decent man. He's compassionate and treats the people who work for him well. He's also a lawyer, and is one of the smartest people I know in politics.

And:

While I don't know the facts of these cases, nor am I a lawyer, I suspect there's a lot more to the story when it comes to these pardons. As Barbour's office pointed out, the vast majority of those whom he pardoned had already served their full sentences, and his pardons were based on the recommendations of the parole board. I'd bet that at least a few of them were convicted under questionable circumstances, and may or may not have had the benefit of DNA evidence when they were originally tried. I'm sure the governor has seen, as the rest of us have, the increasingly unjust nature of our court system these days. Is there anyone who thinks our criminal justice system isn't tough enough? 

Haley Barbour is a smart, humane man. He understands the need for mercy and compassion in our criminal justice system. He's done nothing wrong.

At ABC News, Huma Khan posts, "Pardon Me: Is Southern Custom Behind Haley Barbour’s Clemencies?"

Four prisoners pardoned by Barbour last Friday worked at the mansion he resided in for eight years. All are convicted murderers.

Mississippi is one of the few states where the “trusty” system is still thriving. Under that system, well-behaved prisoners are allowed to clean, work in the kitchen, wait tables and wash cars at the governor’s mansion, no matter what their crime was.

Proponents say the system helps cut state costs and allows prisoners to put their time to use. North Carolina has a similar program that uses inmates for upkeep of a part of the governor’s residence. South Carolina did the same, but ended its program in 2001 after inmates were found to be having sex in the governor’s residence.

Barbour told The Associated Press in 2008 that it was customary for Mississippi governors to cut short the sentences of inmates who served at the mansion, a tradition that dates back generations. At the time, he faced similar backlash for releasing trusty Michael David Graham, who served 19 years of his life sentence for killing his ex-wife. Graham walked free after working eight years in the governor’s mansion.

The tradition of having inmates work at the governor’s resident is unique to the South, observers say, and is partially inspired by the states’ religious history. Even nationally, the pardoning system, from the state to the federal level, is rooted in some ways in the Judeo-Christian tradition, said P.S. Ruckman, Jr., a professor of political science at Rock Valley College in Illinois, who is writing a book on pardons.

Pardon Power is Ruckman's blog that focuses on clemency issues.  Additional news coverage in the next post.

Earlier coverage of the Mississippi pardons begins at the link.  Related posts are in the clemency index.

California Roundup

"California Supreme Court voids death penalty in 1998 killing," is by Maura Dolan for the Los Angeles Times.

The California Supreme Court, which upholds the vast majority of capital sentences it reviews, decided unanimously Monday to overturn the death penalty for a convicted Long Beach murderer because a prospective juror was improperly removed for having ambivalent views on capital punishment.

In a ruling written by Justice Kathryn Mickle Werdegar, the state high court said that Los Angeles County Superior Court Judge Tomson T. Ong erred when he removed the potential juror after she said she was uncertain about her position on the death penalty but would impose it if justified.

"To exclude from a capital jury all those who will not promise to immovably embrace the death penalty in the case before them unconstitutionally biases the selection process," Werdegar wrote.

As long as a juror is capable of considering all sentencing alternatives, including the death penalty, he or she is qualified to serve on a death penalty case, the court said.

The ruling requires Los Angeles County prosecutors either to ask another jury to sentence Kevin Darnell Pearson to death or to reduce his sentence to life without the possibility of parole. A spokeswoman for the district attorney's office said it has not yet reviewed the ruling.

"Calif. Supreme Court reverses 2nd death sentence," by Bob Egelko for the San Francisco Chronicle.

After upholding 46 consecutive death sentences over two years, the state Supreme Court on Monday issued its second reversal in two months, granting a new sentencing trial to a Long Beach man because the judge at his rape-murder trial dismissed a juror who had mixed feelings about the death penalty.

While unanimously overturning Kevin Pearson's death sentence, the court upheld his convictions for taking part in the kidnapping, rape, robbery, torture and murder of Penny Sigler.

And:

The court, which in recent years has had one of the nation's highest rates of affirming death sentences, went two years without a reversal until Dec. 5, when it overturned the murder convictions and death sentences of two Los Angeles men after finding that the trial judge had wrongly removed a holdout juror during deliberations.

Monday's ruling also found improper dismissal of a juror, this time during pretrial questioning about the death penalty.

The court said the prospective juror wrote in her questionnaire that she wasn't sure how she felt about capital punishment. Questioned by prosecution and defense lawyers, she said she could vote for a death sentence in an appropriate case.

Superior Court Judge Tomson Ong then granted a prosecution request to remove the juror from the panel for possible anti-death-penalty bias.

But the state's high court said the law considers jurors' personal views irrelevant as long as they agree to set those views aside and base their decisions on the evidence.

"State High Court Overturns Second Death Sentence in a Month," at Law.com's the Recorder.  It's written by Kate Moser.

"To exclude from a capital jury all those who will not promise to immovably embrace the death penalty in the case before them unconstitutionally biases the selection process," wrote Justice Kathryn Mickle Werdegar in the unanimous decision.

And:

In his direct appeal, Pearson argued, among other things, that Judge Tomson Ong improperly excused a potential juror due to her statements during voir dire on the death penalty. She expressed mixed views, but categorically said she could apply the death penalty if the facts called for the punishment.

Relying on the high court's 1988 decision in People v. Guzman, the judge concluded she shouldn't serve on the jury because she equivocated on capital punishment.

"Guzman does not stand for the idea that a person is substantially impaired for jury service in a capital case because his or her ideas about the death penalty are indefinite, complicated or subject to qualifications, and we do not embrace such a rule," Werdegar wrote.

The California Supreme Court opinion in People v. Pearson is available in Adobe .pdf format.

Questions raised by the replacement of a juror in a recently concluded California trial was noted yesterday.

The Los Angeles Times Opinion L.A. notes a recent conversation between the paper's editorial board and Chief Justice Tani Cantil-Sakauye of the state's Supreme Court.  It's titled, "California's chief justice: 'Life without means life without'."

Does Chief Justice Tani Cantil-Sakauye oppose the death penalty? That's the way some observers on both sides of the debate took her statement in a Dec. 24 Los Angeles Times story by staff writer Maura Dolan. But no, the chief justice told The Times' editorial board on Friday, she has no position on whether it ought to be the law in California. And she was surprised by some of the reaction.

What was the reaction to the chief justice's statement in The Times regarding the death penalty?

I have had mixed reaction, as you might imagine. I thought it was a fairly -- my statement was a fairly objective one. There's nothing wrong with debate. There's nothing wrong with discourse. That's what moves us forward. That's what may bring about change, may initiate change.

So of course I received some very heated, emotional letters -- that I don't disagree with the emotion behind -- but that was not my point or focus.

And then I've also received, interesting enough, just as many if not more letters of support for courage, for encouraging a debate, for realizing and having a perspective that the state's resources have to be reconsidered. We are in a different place than we were in '78 and the ensuing years. There's nothing wrong with a debate. It's been done. And people bring great expertise to this area. So we shouldn't be afraid of having that exchange.

Finally for this roundup, Loretta Keller writes the OpEd, "Time to ban the death penalty," for the Pasadena Star-News.

The Savings, Accountability and Full Enforcement (SAFE) campaign calls for a 2012 ballot initiative that would replace the death penalty in our state with life imprisonment without parole. The initiative is called Safe California, and I strongly support its adoption.

And:

If Safe California is passed, the initiative will release $100 million for three years to keep police on the streets and to solve unsolved felonies. And it would require all persons who are given life without parole sentences to work in order to pay restitution to the victim's compensation fund.

We owe it to ourselves to make 2012 a better year by supporting Safe California. No person or state has the moral right to take a viable life.

 

Following Up on the Path of the Oregon LI Drugs

"How Oregon's Death-Penalty Drugs Ended Up With a New York Firm," is Ford Vox's latest Atlantic post on the Oregon lethal injection drugs.

Since 1986, New York's Devos, Ltd, has steadily built a business with an annual revenue of $32.2 million handling overstocked, expired, or recalled drugs on pharmacy shelves throughout the nation. Operating as Guaranteed Returns, Devos is the industry leader in a specialized business called reverse pharmaceutical distribution. Reverse pharmaceutical distribution comes out of the need to carefully navigate the minefield of state and federal regulations surrounding controlled substances, and the equally difficult task of complying with hundreds of manufacturers' and wholesalers' strict rules for properly returning or reselling goods that lose all value once improperly stored or tampered with

After Oregon's Department of Corrections (ODOC) got word of Governor John Kitzhaber's November 2011 announcement that he'll no longer enforce the state's death penalty, its pharmacy unit rang up Guaranteed Returns, the reverse distributor of choice for most VA Hospitals. It's unclear if the decision to return rather than destroy the drugs ever reached Governor Kitzhaber's notice before being publicly reported in The Bend Bulletin on December 24. Once aware, the governor took no action and never acknowledged the glaring contradiction with his own recently announced stand against the death penalty, despite the fact that clamping down on America's supply of these drugs is the crux of a new international strategy that puts pressure on death-penalty states.

Guaranteed Returns now possesses Oregon's lethal cocktail mixers, the ODOC told me.

And:

If Oregon's Governor Kitzhaber has missed his chance to stop this outrage, New York's Governor Andrew Cuomo is now in a position to fix things for him.

Governor Cuomo could ask New York-based pharmaceutical companies and distributors to certify that their medical products won't land in the store rooms of government agencies who will use them to kill people. If these companies don't heed such a warning, New York's Division of Human Rights and its attorney general could serve the nation well by launching investigations into those Empire State corporations that mishandle controlled substances so grievously that they wind up stocking death-chamber drug cabinets.

Earlier coverage of the Oregon lethal injection drugs begins at the link.

More Commentary From Ford Vox on the Oregon LI Drugs

"Oregon's Governor Puts Lethal Injection Drugs Back on the Market," is the title of Ford Vox's post this morning at the Atlantic.

Finding itself in possession of $18,000 worth of recently acquired lethal injection medications it can no longer use, Oregon's Department of Corrections is hoping to recoup its costs by returning the drugs to a distributor. This week,The Oregonian reported that the wholesaler has picked up the drugs and the state is now awaiting payment. But none of the three other Americans states that have recently halted executions made similar moves -- all for unique reasons.

Oregon's supplier will have no trouble unloading the state's unused death drugs now that Europe is actively blocking their importation into the United States. They're a hot commodity in the remaining death penalty states, but that doesn't mean they should go to market. Delivering Oregon's drugs right back into another death chamber is remarkably callous, especially given Governor John Kitzhaber's dramatic November 2011 speech explaining why he would no longer participate in the "unfair" death penalty system. He even reiterated his own personal longstanding disagreement with state-sanctioned killing.

And:

Through this series of opinion pieces, I've been making my best effort to push Kitzhaber to make the right decision here and ditch his drugs. His spokesperson last told me he's standing his ground: If the distributor will refund the money, Oregon reserves the right to send back the drugs. Now, we hear the deed is done. Words like hypocrite don't sting these days, even when backed up by the facts.

Earlier coverage of the Oregon moratorium, including more from Vox, is 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.

The Oregon Moratorium - Additional Commentary & Coverage

 "Oregon's death penalty halt merciful and right," is the title of Mark Osler's post at CNN.  Mark Osler is a University of St. Thomas Law prof and a former federal prosecutor.  He's also the author of Jesus on Death Row, written while he taught at Baylor Law.

Oregon and other states have incorporated executive clemency into their systems of criminal law, drawing on the example laid out in the United States Constitution. The framers of the Constitution chose intentionally to give the executive that power, knowing full well that it would necessarily run contrary to popular will.

If you are angry with Kitzhaber for using that power, also direct your anger at Alexander Hamilton, who was a driving force behind the institution of executive clemency in the United States. Here is part of what Hamilton said about it in Federalist Paper 74: "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. ... On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men."

And:

A second buried truth is revealed within the tortured way in which Kitzhaber announced his decision. During a prior term as governor, in 1997, he had allowed two executions, and it seems clear that he was deeply troubled by his role in those killings. How could he not be? It is a heavy responsibility to participate in a deliberative process that identifies a citizen to be put to death by the state. However, Kitzhaber is just the exposed tip of an iceberg of human emotion. Beneath him are thousands of others who have been forced by the institution of capital punishment to live with their role in an intentional death.

Among that group are lawyers, witnesses and judges, but perhaps most sympathetic of all are the jurors. They are plucked from their daily lives by the government and suddenly thrust into the most important role of all -- they must vote, unanimously, after deliberation, on whether someone will live or die. If they vote for execution, they must file back into that hushed, tense room, look that person in the eye and say in the most public of ways that they have chosen him to die.

I have known some of those jurors. Years later, even if they were convinced they were right, they revealed deep and dark emotions related to what they had done. At best, that service was seen as a difficult but worthwhile sacrifice, and at worst as a moment they too often relived while filled with doubt.

Kitzhaber is right to say that the capital process is fatally flawed. It is unfair to some defendants, yes. But a system that tries many, condemns some to die and executes few is also cruel and unusual to those who work within the process. It is primarily inflicting pain on victims' relatives who wait in limbo, on jurors who relive those discussions, on prosecutors whose hearts are hardened while their efforts are frustrated and on the budgets and reputations of the states that choose to go on with it anyway.

Diann Rust-Tierney posts, "Leadership," at Huffington Post.  She's executive director of the National Coalition to Abolish the Death Penalty."

Yesterday, Governor John Kitzhaber imposed a moratorium on executions in Oregon.

He did not, as much as I might like to see it, end the death penalty.

Faced with deciding whether to allow the execution of Gary Haugen on December 6th, he did the right thing. He was honest with the public about his doubts about Oregon's death penalty and he acted on his convictions.

The governor admitted he had tried it the other way. He had allowed the executions of two other men in 1996 and 1997. But those decisions haunted him and I submit, further tainted the outcome because he acted against his better judgment.

And:

In the best tradition of leadership, Governor Kitzhaber has articulated a vision of a criminal justice system that is fair, reliable and accountable. More importantly, in the tradition of great leaders he has empowered the people of Oregon to engage in a principled and reasoned dialogue about how best to reach that collective vision.

At the Oregonian, associate editor David Sarasohn writes, "On voluntary execution, Kitzhaber won't sign on."

John Kitzhaber has a perspective on capital punishment that nobody else around quite has. He's the only Oregon governor in 50 years -- and the only one alive -- with his signature on execution orders.

Signing them has stayed with him.

"They were the most agonizing and difficult decisions I have made as governor and I have revisited and questioned them over and over again during the past 14 years," he said Tuesday, explaining why he was refusing to approve the execution of Gary Haugen. "... And I simply cannot participate once again in something I believe to be morally wrong."

The prospect of being hanged, noted the 18th-century English writer Samuel Johnson, concentrates the mind wonderfully.

Apparently, so does the prospect of signing the order for the hanging.

It can be an agonizing responsibility for governors. Other politicians can pound their chests about the rightness of the death penalty, but there's just one name on the order.

And:

George Ryan, commuting every death sentence in Illinois, called the state's system "arbitrary and capricious." Oregon's system may not have the beaten confessions, incompetent defenses and racial sentencing patterns of Illinois -- or Texas, despite Austin's statehouse satisfaction -- but it's clearly arbitrary in its own very Oregon way.

And the arbitrariness may be inescapable.

"The basic question -- does the system accurately and consistently determine which defendants 'deserve' to die? -- cannot be answered in the affirmative," concluded Supreme Court Justice Harry Blackmun in 1994, abandoning any effort to provide judicial guidelines for executions. "From this day forward, I no longer shall tinker with the machinery of death."

And if you're John Kitzhaber, you won't sign your name to it.

Also at the Oregonian, columnist Steve Duin writes, "Oregon Gov. John Kitzhaber's vote is the only one that counts."

In two dramatic moves — curiously timed for Thanksgiving week — Gov. John Kitzhaber has firmly established the pecking order in Oregon politics.

And:

There’s only one sheriff in town. John Kitzhaber took last November’s election, for good reason, as the only vote he needed to act decisively on his prescription for what ails us.

He’s not asking for second opinions. His morality is law. And 1,142 days remain in his four-year term.

"Capital punishment slowly loses ground in US," is the AFP post by Chantal Valery.  It's datelined Washington, DC.

With a new moratorium on the death penalty in Oregon and a drop in the number of death sentences and executions, capital punishment is slowly losing ground in the United States.

Oregon governor John Fitzhaber announced on Tuesday that the northwestern state will halt executions at least until the end of his mandate, joining the camp of US states that have effectively shunned the death penalty.

"I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am governor," said Fitzhaber, who said he had come to the conclusion they were "morally wrong."

The governor suspended the last execution scheduled for this year, halting the count for the number of people put to death in the United States in 2011 at 43.

That total is slightly below that seen last year, and less than half the number of people executed each year in the 1990s. The number of death sentences also has fallen since then by nearly a third.

Only a dozen of the 50 US states conducted executions last year, most of them in the south.

"Slowly, state by state, there is this erosion of support for the death penalty," Richard Dieter, the director of the Death Penalty Information Center, told AFP.

In all, 16 states have abolished the death penalty or did not re-adopt it after it was restored by the US Supreme Court in 1976. They could be joined as early as next year not only by Oregon, but also by Maryland, Connecticut and California.

"Debate on death penalty revives," is a lengthy article by Alan Gustafson from the Sunday edition of the Salem Statesman Journal, in Oregon.

Questions and uncertainty about the long-term fate of Oregon's death penalty loom in the wake of Gov. John Kitzhaber's controversial decision, announced on Tuesday, to block the scheduled Dec. 6 execution of twice-convicted murderer Gary Haugen, and to ban all executions for the remainder of his term.

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.

"I do not believe those executions made us safer," Kitzhaber said. "Certainly I don't believe they made us nobler as a society. And I simply cannot participate once again in something I believe to be morally wrong."

The Los Angeles Times reports, "Death row inmates' desire to die renews debate," by By Carol J. Williams.

Serial wife-killer Jerry Stanley wants to die.

Imprisoned on death row for the past 28 years, Stanley insists he deserves execution for the cold-blooded killing of his fourth wife in 1980 and for shooting to death his second wife five years earlier in front of their two children.

One of 718 prisoners on California's death row, Stanley has renewed an ethical debate among legal experts about whether a condemned prisoner who drops resistance to execution has been driven insane by his confinement or has accepted his fate and should be allowed a dignified end.

An Alameda County judge has ruled that Stanley is competent to decide his own legal matters. He is one of at least three condemned men on the nation's death rows volunteering to expedite their sentences. Gary Haugen, an Oregon man convicted of killing his former girlfriend's mother in 1980, and a fellow inmate in 2003, was ruled competent in September and faced a Dec. 6 death by lethal injection until Gov. John Kitzhaber just days ago banned further executions during his term. The third, Eric Robert, killed a guard at his South Dakota prison in April while serving an 80-year sentence for kidnapping. He has vowed to kill again until his death wish is granted.

Since the modern era of capital punishment began with the 1977 execution of Gary Gilmore in Utah, civil rights advocates and death penalty supporters have debated whether a state would run afoul of laws prohibiting execution of the mentally ill if they bow to a condemned inmate's suicidal impulse.

"Most of these people aren't dropping their appeals because they believe it's the punishment they deserve," said John Blume, a Cornell University law professor and author of "Killing the Willing," a 2005 study of those who abandon pursuit of reprieve.

And:

Sean O'Brien, a University of Missouri-Kansas City law professor who has worked with death row volunteers for 30 years, calls the pursuit of execution "suicide by court."

"Over the course of time there are many who say 'I'd rather die than remain here,' " O'Brien said. He notes that volunteers "can be very persuasive, even if they are seriously mentally ill. A person intent on killing himself can figure out how to get the job done. They know what to say."

Death penalty supporters see nothing wrong with that and urge states to honor the volunteers' wishes.

"Oregon Governor Bans The Death Penalty," by Greg Howard at Slate.

Kitzhaber said his "heart goes out" to the families of Haugen’s victims, but the three-term governor said he has long regretted allowing two men to be executed in 1996 and 1997. The two inmates, like Haugen, had also waived their appeals. And although Kitzhaber did not stop their executions, the governor was once an emergency room doctor, and said his opposition to the death penalty was connected to his oath as a physician to "do no harm." Kitzhaber said Oregon voters didn’t reinstate the death penalty in 1984 to only put to death inmates who volunteer.

"The reality is that, in Oregon, our death sentence is essentially an extremely expensive life prison term," Kitzhaber said. "Far more expensive than the terms of others who are sentenced to life in prison without parole, rather than to death row."

Earlier coverage of Oregon's moratorium begins with the preceding post.

Commentary on the Buck & Skinner Cases

"Duane Buck, Race and Capital Punishment," is the title of Andrew Rosenthal's Loyal Opposition blog post at the New York Times.

This post is devoted to the Supreme Court’s declining this week to review the Texas death-penalty case of Duane Buck.

Based on the duelling short opinions from Justices Samuel Alito Jr. (who voted with the majority to deny) and Sonia Sotomayor (who filed a dissent to explain why she voted to hear the case), it seems that this life-and-death matter turned on a single fact: A freighted question that Mr. Buck’s lawyer asked 14 years ago.

And:

The point is that the prosecutor zeroed in on race, and asked the jury to consider it as a factor in predicting Mr. Buck’s future dangerousness. It was that invitation that led the jury to impose what Justice Sotomayor calls “a death sentence marred by racial overtones.”

Given that a man’s life was at stake here, I think the Supreme Court justices could have gotten their heads out of minutiae and let Mr. Buck’s case have a rehearing.

"Hank Skinner case must be reviewed," is the Fort Worth Star-Telegram editorial from the Saturday paper.

Skinner's appellate attorneys noted that a law passed by the Legislature in May, based partly on this case, gives an inmate the right to request that the convicting court order testing of biological material for DNA even if the items were not entered into evidence during the original trial.

The criminal appeals court said in its order, "Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case."

It was an investigation in 1999 and 2000 by students at Northwestern's Medill School of Journalism that unearthed some of the disturbing facts now being used in Skinner's appeal. Since then, an arduous legal process has prevented an execution while his legal team tries to force the justice system to do all it can to discover the truth.

That should be the state's ultimate goal in any case, but especially one in which a man has been sentenced to die.

Earlier coverage of the cases of Duane Buck and Hank Skinner at the links.

Opinion Roundup

Former LA District Attorney Gil Garcetti writes the OpEd, "Death penalty cases not a smart use of limited funds," for today's LA Daily News.

I served 32 years in the District Attorney's Office in Los Angeles.

I've been gone for nearly 11 years. In those accumulated 43 years, only two people sent to Death Row from an L.A. court have been executed, despite decades of agony for the families of murder victims and hundreds of millions of dollars in costs to taxpayers.

I have concluded that the death penalty law should be replaced with life imprisonment without the possibly of parole. Why? Because the death penalty serves no useful purpose. It is not a deterrent. It is horrendously expensive, and we cannot afford it.

There also are too many instances, nationwide, where people have been on Death Row until new evidence determined their total innocence. I would not be shocked if one or more of the 720 prisoners on Death Row in California were innocent of the crime for which he or she awaits execution.

Even proponents of the death penalty agree that the current system brings no finality or closure to the family and friends of the murdered victim and that it is outrageously expensive. They argue that it can all be done faster or for less money. They don't fully understand California's laws or justice system.

David Love, the newly-named Executive Director of Witness to Innocence, a national organization of death row exonerees, writes, "The Death Penalty and #OccupyWallStreet," at Huffington Post.

Recently I attended the 12th Annual March to Abolish the Death Penalty in Austin, Texas. Participants included death penalty abolitionists, and members of Witness to Innocence -- over two dozen freed death row prisoners who spent years in prison, and once faced certain execution for crimes they did not commit. The day's events included a walk past the governor's mansion, and a rally on the Capitol steps.

One thing that struck me about the event in Austin was the presence of Occupy Austin protestors who were present to speak and lend their support. Clearly, they get it. They understand the link between the struggle for economic justice and the fight to end the death penalty in America. Perhaps you don't. Allow me to explain.

And:

America's economic and justice systems thrive on winners and losers, and someone is made to pay in the end. America's government has been sold to the highest bidder in the form of concentrated and unchecked corporate power. In the eyes of many, the political system is working for the few and against the vast majority of everyday people. Unlimited campaign finance is a scourge upon the land, operating as a legalized bribery scheme for the rich and famous. And the death penalty is part of a kangaroo court system in which poor and working class people become scapegoats for society's ills. These scapegoats are utilized to help deflect attention from the nation's problems, as we are all promised that their imprisonment and/or execution will make our problems disappear.

For years, the public had been sold on broken institutions that breed inequality, insensitivity and injustice. But there is ample proof that the people are no longer buying it. And the death machine -- not unlike American-style capitalism with its socialized risk and privatized gain -- is so inherently flawed that tweaking around the edges simply will not do. Fundamentally broken, it must be scrapped and replaced. What is needed is what Dr. King called a radical revolution of values, so that this nation emphasizes human rights over property rights, and upholds people over money.

Now that is why the death penalty abolition movement has so much in common with the Occupy Wall Street folks. Both know the fix is in.

Earlier coverage of California cost issues begins at the link.

Clock Ticking in Hank Skinner Case

Wednesday, November 9 is the scheduled execution date for Hank Skinner.

"Don't execute Hank Skinner before crucial DNA evidence is tested," is the editorial in today's Houston Chronicle.

Skinner received an eleventh-hour stay from the U.S. Supreme Court, which allowed him to pursue a federal civil rights suit asking for court-ordered testing of that DNA evidence, and sent his case back to the federal court.

But this July, even while that case was pending, and even though a new Texas law expanding access to DNA testing had already been passed and was due to take effect Sept. 1, the state asked for, and received, a new execution date for Skinner. That date is next Wednesday, Nov. 9.

So now we find ourselves, yet again, asking why the state of Texas is in such a hurry to execute Skinner even as two separate courts - either one of which could order that access be provided - are considering the merits of his case.

The state has always held that because Skinner's attorneys declined to test all the evidence available in 1995, fearing it might incriminate their client, they could not later ask for it to be tested. But this new state law removes such obstacles.

The untested evidence becomes even more important in light of the fact that Skinner's attorneys failed to introduce evidence on another potential suspect, Busby's uncle, now dead, who had a history of violent crime, had stalked Busby, and behaved suspiciously after the crime. Untested items include a man's windbreaker, not belonging to Skinner, found beside the victim's body, stained with blood splatter, human hair and perspiration; swabs from a rape kit; two knives, one of them a likely murder weapon; and towels and clothing.

Former Governor Mark White and former Judge and FBI Director William Sessions write the OpEd, "No good reason for state to deny DNA testing," for the Austin American-Statesman.

Texas officials have been running from the truth in the Hank Skinner case for more than 10 years. The state plans to execute Skinner on Nov. 9, but leaders continue to bury their heads in the sand, inexplicably refusing to test DNA evidence that could prove whether Skinner is guilty.

And:

It is unconscionable that the prosecutor refuses to test the available DNA evidence when such testing has the power to confirm the verdict or prove the other suspect's guilt. Testing the evidence is just common sense. The only potentially legitimate objection would be cost, but an outside group has offered to pay for the test, meaning there is literally no cost to the state. Further, the state continues to waste untold taxpayer dollars fighting this test — vastly more than it costs to just test the evidence.

Also incredible is that the prosecutor moved to set a November execution date despite the fact that two court proceedings involving the DNA testing are still in progress. The Legislature passed an important law this summer that should entitle Skinner to the long-sought DNA testing, but Skinner is still waiting for Texas courts to fully review the claim.

White and Sessions are members of the Constitution Project's Death Penalty Committee.

"Test the DNA," is Diann Rust-Tierney's essay at Huffington Post.  She's executive director of the National Coalition to Abolish the Death Penalty.

Capital punishment is continuing to lose credibility as a reasonable response to crime. While we all have some level of understanding of the desire to see a murderer suffer a fate in kind, in practice the idea of making sure murderer's get their just desserts, we are coming to see as increasingly difficult -- if not impossible.

Most glaring is the challenge of maintaining a fair system that does not punish the innocent along with the guilty. A little over a month ago the nation witnessed an execution in Georgia that left everyone shaking their heads. How could the state of Georgia execute a man when there was so much doubt about his guilt? What purpose was served? What principle of law was upheld, if fundamentally it didn't matter whether we were certain he committed the crime?

Now another case in Texas leaves people shaking their heads again. Hank Skinner has an execution date set for November 9, 2011. But he has cases pending in federal and state courts to compel the State of Texas to conduct DNA tests on all of the untested evidence in his case. Wait a minute; shouldn't we be certain Skinner committed the crime before he's executed? Wait a minute, you mean there's DNA evidence and it hasn't been tested?

The Guardian opinion feature Comment Is Free carries, "Hank Skinner, a $550 DNA test and the price of Texas justice," by Alex Hannaford.

$550. That's how much it costs to test a murder weapon for DNA in Texas. And if Texas death row inmate Hank Skinner is to be believed, $550 would prove his innocence. But the state of Texas has refused to do it – twice – even though Skinner has been asking nicely for well over a decade from his 12ft-by-6ft cell.

Skinner was convicted of murdering his girlfriend, Twila Busby, and her two adult sons, Randy and Elwin, at a trial in 1995. But from the beginning, Skinner has maintained his innocence, arguing that he was too inebriated from a cocktail of vodka and codeine to have been capable of the crimes. The evidence against him is largely circumstantial and his lawyers argue that Busby's uncle (since deceased) was the real perpetrator.

The Texas court of criminal appeals rejected Skinner's application for DNA testing to be performed on blood taken from the murder scene, saying it prohibits post-conviction testing unless – and this is key – "a reasonable probability exists that DNA tests would prove the prisoner's innocence."

In other words, Skinner needs to basically prove he is innocent before he can have the murder weapon tested, which he says will prove he's innocent. That makes sense, then.

The Fair and Unbalanced blog publishes, "Travesty Of Justice Redux: Hank Skinner And The State Of Texas."

On March 24, 2010, Hank Skinner was about to be executed when the United States Supreme Court issued a stay with just 35 minutes to spare.  A year later the high court held that Skinner was entitled to bring a federal civil rights action challenging Texas' rules for allowing post-conviction DNA testing as too restrictive.

Following the Supreme Court's ruling, Texas amended its DNA laws and Skinner's attorneys moved to obtain DNA tests under the new, supposedly more generous state law provisions.  Their motion remains pending a week before the new execution date.

In addition to commentary, there is news coverage.  Jordan Smith writes, "Last-Minute Appeals on Skinner Execution," for the latest Austin Chronicle, out today.

Skinner's attorneys have been seeking access to the crime scene evidence since 2001, the year that Texas first passed a post-conviction DNA statute. The D.A. balked at the request and the Court of Criminal Appeals ultimately ruled against Skinner, opining that DNA alone wouldn't necessarily be enough to conclusively demonstrate his innocence. In 2007, Skin­ner's team tried again; this time, they brought new facts to bolster their DNA testing request. Rejecting the claim a second time, the appeals court changed course: Skinner would not be allowed access to the evidence because his trial attorney never requested testing; it was therefore Skinner's fault that the evidence remains untested. That prompted Skinner's attorneys to file a federal civil rights lawsuit in order to gain access; the U.S. Supreme Court ruled that Skinner may indeed take that route.

This year, however, the Legislature passed a new DNA testing law that eliminates the "fault" provision that previously blocked Skin­ner's access to the evidence. On Sept. 6, citing the change in law, Skinner filed a new bid to have the evidence turned over. The state waited five weeks to respond to the request, which is still pending in state court. Mean­while, last week the case was back in federal court, where the state argued that the federal lawsuit should be rendered moot and set aside since the matter is still pending in state courts. In a recommendation to the district judge, a federal magistrate rejected that bid and said instead that the action should be stayed, pending state action.

"Texas death row: lawyers race to allow DNA testing for inmate Hank Skinner," is the title of Ed Pilkington's Guardian report.  He's based in New York.

Rob Owen, a lawyer for Skinner, said that the items that have not yet been tested could be crucial in identifying the murderer. Some of the pieces relate to the body of the victim, including swabs that could prove sexual assault, fingernail clippings and hairs from her hands.

Another important item is a jacket found lying beside her dead body which had sweat stains that would reveal DNA from a possible attacker. There were also two knives discovered at the scene with apparent blood stains that could have been used to kill Busby's children.

"If these items all produce a single DNA profile from a person who is not Mr Skinner, then that would be very powerful evidence that he's been wrongfully convicted," Owen said.

As Skinner's execution date gets ever closer, the political heat on Perry is likely to rise. Recent polls show that more than eight in 10 Texans are in favour of prisoners being given wide access to DNA testing.

Last month Michael Morton was freed in Texas having spent 25 years in jail for killing his wife. DNA testing proved his innocence and the guilt of another man.

Sandrine Ageorges-Skinner, who married the prisoner three years ago having befriended him through correspondence, said that as his new execution date approaches it is like a re-run of what happened last year when he came within an hour of death. "This is sheer torture. It took him months to recover from the trauma of what happened last year, and now we are going through it all again."

Earlier coverage of Hank Skinner's case begins at the link.

Kirk Bloodsworth on the Hank Skinner Case

"Texas Must Test DNA Before Carrying Out Skinner Execution," is the title of Kirk Bloodsworth's essay at Huffington Post, this morning.  He was the first DNA exoneree convicted of a capital crime in America.  His story is told in Bloodsworth: The True Story of One Man's Triumph over Injustice by Tim Junkin.

Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.

In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.

DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.

The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.

Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.

And:

Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.

Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.

The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.

DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.

Earlier coverage of Hank Skinner's case begins with the preceding post.

Televising Executions

Allison Gamble offers this Guest Post, "Why It's Not a Good Idea to Televise Executions."

Public executions have been around about as long as there has been a legal system. In the past, these punishments have been designed to be as degrading as possible, not only taking away the life but also the dignity of a criminal in front of crowds of people. Hanging was perhaps the most popular method, but there were several other even more horribly degrading punishments that could be enacted upon a criminal in public. As we have moved into the modern era, we have done away with these cruel and unusual punishments, and they are even outlawed in the Eighth Amendment of the Constitution. Yet while our capital punishments are less graphic than in the past, there is still a pronounced interest in watching them, and with the advent of television and the Internet these executions can be watched by millions of people miles away from the event itself.

Why show punishments publicly? In the past, one explanation has been that publicizing executions discourages crime. In the modern day, when execution is typically much less violent, it is said to be a good political move, showing that the state is more humane than the murderers they are killing. Another argument is that of political transparency, that people should have a right to see what is being done in their name and with their tax dollars. Furthermore it is argued that people should be allowed to see for themselves whether or not lethal injections are humane, rather than rely on media reports to form the bases of their opinions.

To continue reading the Guest Post, click the link.

Fordham Law prof Deborah Denno posts, "Should Executions Be Televised?" at Encylopedia Britannica.

Whether executions should be televised is an intriguing question but any answer must be based partly on conjecture. No U.S. execution has ever been televised even though the issue has been raised a number of times over the years. Because I’m not a psychologist or a media expert, my speculation on the visual value of televising executions would be no more insightful than someone else’s.  What I would like to discuss, however, are some of the legal issues involved in videotaping executions and how they might come to bear on a decision to televise them.

Only two U.S. executions have  been  videotaped—the first was the 1992 gas chamber execution of Robert Alton Harris in California and the second was the 2011 lethal injection execution of Andrew Grant DeYoung in Georgia. Regardless of the small number, I think mandatory videotaping of executions in the U.S. for limited viewing by relevant parties (judges, lawyers, etc.) is a good idea because it helps provide objective evidence of whether or not the execution violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

To continue reading Deborah Denno's post, click the link.

A Q&A With Michael Meltsner on the Reissue of Cruel & Unusual

Earlier this week I noted the reissue of Cruel and Unusual: The Supreme Court and Capital Punishment, Michael Meltsner's classic book detailing death penalty litigation in the 1960's and 1970's at the NAACP Legal Defense Fund (LDF).  Better still, the Quid Pro Books edition has a new preface by the author.

I'm very happy that Michael Meltsner took the time to participate in a Q&A.  He's a senior professor of law at Northeastern University School of Law in Boston, and its former dean.

Q.  This is a classic book, and I'm really glad that it will now be widely available again.  What was it like to revisit your original work with the passage of time and to write the new forward?

A.  Much has happened since publication of the first edition in 1973, but to my surprise I realized we still live in a legal world governed by the tension between Furman and Gregg.  My main reaction, however, was more personal than professional: I thought about the lawyers, secretaries and advocates with whom I worked closely, some of whom are no longer with us. An extraordinary group. I asked myself how did they find the energy and imagination to do what they did?

Q.  It must have been incredibly frustrating to see the states' reaction to Furman, quickly resulting in new death penalty statutes.  What was that like?

A.  Yes frustrating it was. Defeat snatching victory just as we were getting used to it. (Like the Red Sox losing its nine game lead in September:)) But then the Furman victory was itself unexpected. We lived roller coaster lives those years.

Q.  Now, a generation and nearly 1,300 executions later, it's increasingly clear that America's death penalty remains arbitrary and capricious, largely limited to the American South.  Death sentences are dropping and one by one state legislatures are replacing capital punishment.  What do you see for the future?

A.  I see an unwilingness to use the death penalty for any substantial public purpose and an incapacity in a number jurisdictions to discard it. Think of trying to take away a child's pacifier! He no longer needs it but will fight like crazy to keep it around.

Q.  At a symposium on the future of death penalty scholarship at the University of Albany, Hugo Adam Bedau started his keynote by reciting recent book titles on the death penalty - the point being that every year brings an increasing number of book focused on this failed experiment.  For those who haven't read Cruel & Unusual and don't know its history, what makes it relevant today?

A.  I'm told you can't practice in the field at a high level without understanding the road to Furman, but I agreed to a second edition because people I respect flattered  me by saying the book was a great read as well as a primer on litigation strategy and tactics. I still teach a course on constitutional litigation that deals with strategy and tactics so I was an easy sell. BTW last year I was honored to have received an award in Hugo Bedau's name; his scholarship laid some of the essential building blocks for the Legal Defense Fund's approach.

Q.  You've had a superlative career.  What role did death penalty litigation play in shaping your life in the law?

A.  I deal with this at length in my 2006 memoir, The Making of a Civil Rights Lawyer. In brief though, at a remarkably early age I had the opportunity to argue capital cases, one before the Supreme Court. Working with lawyers like Tony Amsterdam, Jack Greenberg and Jim Nabrit was my true legal education. But the deeper meaning, one that shaped a lot of my subsequent work, was an intimate knowledge of how dysfunctionally our society deals with violence    

Q.  Thanks.

Alan Childress, the publisher at Quid Pro Books, Tulane Law prof, and editor at the Legal Profession Blog, also joined in the Q&A.

Q.  What led you to start Quid Pro Books?  Between your duties and research at Tulane Law and editing the Legal Profession Blog, it seems that you already have a reasonably full plate.

A.  Last year, I figured that the Kindle and iPad meant a whole new life for classics in law & society that had gone out of print. Most nonfiction publishers did not seem eager to create ebooks, or at least priced them high to drive readers back to print books. All 50 of our ebooks or journals are $9.99 or less. All have affordable paperbacks, too, because there is still a need for their availability to, really, a different market. There was no shortage of great books that needed new editions, written by the best people in their fields . The project took off, and now brings out all-new books too, such as Lawrence Friedman's The Human Rights Culture. As to having time to do it despite blogging, I recommend to you a prodigious co-blogger. In my case Mike Frisch is a blogging machine, not me.

Q. Publishing has been undergoing a revolution in recent years.  You touched on this, but how important is it to have e-editions along with hard copies of these works that have been out of print.

A. Extremely, even though there are many people who understandably prefer print editions. For others, Kindles and apps are nice. But for some people who need large print, or text-to-speech, or access to books instantly in remote places or other countries, ebooks are more than a convenience: they restore reading to people who lacked realistic access before. For out of print classics, in particular, the economics make more sense for ebooks--no warehousing, lower production costs, potential worldwide market. In the future the percentage of people who get their books in a digital format will only increase, of course, but we'll happily produce print editions as long as people read them.

Q.  Any preview of future criminal justice titles we might expect to see?

A.  Hmm. None scheduled for the short run. Some criminal law fiction is coming. But more traditionally, this spring we republished Jerome Skolnick's Justice Without Trial, with a new Foreword by Candace McCoy, and Stuart Scheingold's The Politics of Law and Order, with new Foreword by Malcolm Feeley.    Both are very recognized titles in legal sociology and political science, respectively.

Q. Besides criminal justice topics, do you have any other books that may be of special interest to our Texas readers?

A. Yes, thanks, at least for those who also have dealings over our border into Louisiana, or are curious about civil law terms. It's a Louisiana Civil Law Dictionary.  I also think some may be interested in a history of the Bracero guestworker program, Kitty Calavita's Inside the State.  And as noted before, Lawrence Friedman of Stanford has a new book out on human rights.

Q.  The legal community was an early and enthusiastic adopter of blogs, and the network of law professor blogs covers an entire spectrum of legal issues.  The blogs certainly help to disseminate traditional scholarship, and enlarge the community for discussion, but they do more, as well.  What lessons have you learned from editing the blog.

A. Other than the advice earlier of enlisting a co-editor who is committed to regular postings and knows how to dig up stories of interest, I learned that such stories and open questions -- on legal ethics, in the case of our blog -- lurk everywhere, but aren't well organized. State bar discipline reports, for many states, are not as accessible or open as you'd think. We find the ethics angles in ordinary news stories too.

Many thanks to Michael Meltsner and Alan Childress for taking the time to participate.  Harry Truman often said, "The only thing new in the world is the history you don't know."  Cruel & Unusual is a vital and foundational book, essential to really understand American states' application of the death penalty today.

Earlier coverage of the reissue of Cruel & Unusual begins at the link.

After the Execution of Troy Davis Execution - Continued Commentary

Stephen Dear writes, "What I Learned at My Arrest at Troy Davis' Execution," for Huffington Post.  He's the executive director of People of Faith Against the Death Penalty.

A few minutes before Troy Davis was scheduled to be poisoned to death in Jackson, Ga., on Sept. 24, I made the sign of the cross, took a deep breath and, with my friend Kurt, calmly stopped traffic and walked across the street into a phalanx of heavily armed police and SWAT officers at the gates of the Georgia Diagnostic and Classification Prison. We were surrounded.

"I am here to stop the execution of Troy Davis," I said.

They screamed at me to leave.

At that moment, with a thousand people standing behind us watching and cheering, I knew things would never be the same in the movement to abolish the death penalty. There were too many new faces in the crowd.

"I am here to stop the execution of Troy Davis."

They screamed into my face and grabbed me.

"We are nonviolent. We are unarmed. We mean you no harm, officers."

We were handcuffed tightly behind our backs, and yelled at again. (Nearly two weeks later, I still cannot feel my left thumb from the heavy plastic ties left on for one hour.) We were placed in a police van with three young men, fellow protesters. Two more new friends, a father and son from a Georgia church, would join us.

We did not know Troy's fate until we were released in the morning. That same night Lawrence Brewer was executed in Texas.

Charged with disorderly conduct, we go to court on Nov. 17.

And:

I have heard all the arguments for the death penalty backwards and forwards. Religious leaders of all kinds must come to reject the death penalty as now just a relic of the Old South -- racist, error-prone, expensive and brutalizing. It is cruel and unusual. There is nothing biblical about America's death penalty.

The death penalty is a sin. Jesus has nothing to do with the death penalty, and America's death penalty has nothing to do with the prophets of the Jewish Bible.

I believe that this decade is a kairos moment on the death penalty -- a special, opportune time the way the 1980s were in South Africa prior to the end of apartheid. Religious leaders have a choice: stand, speak and nourish this historic movement, or be irrelevant as the death penalty withers but more Troy Davises are condemned and executed. Clearly, more are choosing to speak.

I had been in Georgia the week before Troy's execution to deliver the letter organized by People of Faith Against the Death Penalty and Amnesty International and signed by more than 3,500 religious leaders from across the country and beyond. CNN and other media reported PFADP's finding that no such letter in modern history was thought to have nearly as many endorsements from religious leaders. More than 1 million people signed petitions for Troy.

We are winning. States have started to abolish the death penalty and more are close to doing so in the next two or three years.

In light of the massive mobilization that so many people helped bring about, the Georgia Board of Pardons and Paroles did more than seal Troy's fate with their failure to grant clemency.

They triggered a new wave of the abolition movement.

They have challenged the consciences of clergy and laity to become involved in new ways. In recent days Christian theologians and ethicists across America have started collecting signatures on a public letter calling for abolition. A similar letter from Catholic theologians decrying the death penalty now has more than 300 signers so far.

Our movement will never be the same.

On Saturday I was an honorary pallbearer at Troy Davis' funeral in Savannah, Ga. Troy empowered millions of people and that is how I will remember him. He asked everyone to pledge to work to end the death penalty. I so pledge, and you can too.

Now that Troy has been laid to rest, let us take this sad moment and transform it from despair into hope and action.

Today's Lexington Herald Leader carries Rev. Marian McClure Taylor's OpEd, "Ban the death penalty, hideous example of nation's violence."  She is executive director of the Kentucky Council of Churches.

The Sept. 21 execution of Troy Davis affected me the way it did many who saw his picture and read the details. It made me feel sick, and it made me grow even more determined to end the death penalty.

When I say "it made me feel sick," I mean horror at the ritual killing, and sadness about the tragic death Georgia's courts were trying to address. But it also put me in touch with the widespread sickness in which our country's history of violence makes many Americans comfortable with our public executions.

Of our nation's regional histories of violence, I am most familiar with the Deep South where I've lived most of my life. Georgia, where Troy Davis was killed, has one of the worst histories of lynching for example. A Mississippi woman has quilted listings of each lynching victim by state.

Viewing her work at a Louisville museum, my god-daughter asked, "Where's Georgia?" Then we saw an entire separate quilt displayed on the next wall, just to make room for Georgia's list.

Perhaps this history of violence blinds our Bible-believing region to the fact that biblical standards for just executions have never been, and cannot be, met in this country. Instead, the Bible calls us to participate in God's endless mercy.

Commentary on Troy Davis' Execution

Mark Osler posts, "Troy Davis and constitutional virtues," at CNN.  He's a professor of law at the University of St. Thomas Law School in Minnesota, and a former federal prosecutor.  Osler is also the author of Jesus on Death Row, published in 2009.

When I was a federal prosecutor, I had some sleepless nights. On a few occasions, it was after I had lost at trial; I would lie in bed and think of what I did wrong.

Other times, though, my sleepless hours came after I had won a trial or gotten what I wanted at sentencing. The haunting question was always the same: What if I was wrong?

Some might consider that admission a sign of weakness or a lack of resolve, but in retrospect, I see those nights as ones in which I was fully human. The cost of being wrong as a prosecutor is almost unthinkable. This is especially true in a capital case, such as the recent and tumultuous end game in the Troy Davis case in Georgia. Davis' final appeals to the state of Georgia were denied, despite the fact that seven of the nine witnesses against him had recanted their stories. His last hope, the U.S. Supreme Court, denied his application for a stay of execution on Wednesday night, sealing his fate. He was executed shortly after 11 p.m.

The meaningful cases in law almost always involve a clash of virtues. School prayer cases, for instance, sometimes balance two virtues reflected in the Constitution itself: The guarantee of free exercise of religion, and a bar on the establishment of a state religion.

And:

The first signer of that Constitution was George Washington, who then lived out the virtues of that Constitution as president. He was literally the commander-in-chief; when the Whiskey Rebellion arose in western Pennsylvania, he personally led the army to quell the rebels, astride a white horse. Just as importantly, living out the constitutional virtue of mercy, he pardoned those rebels who were sentenced to hang for treason.

The Troy Davis case shows us a truth: We have wandered too far from our own best virtues.

If we are to err, let it be on the side of deliberation and mercy, rather than the unsettling finality we have seen pursued by the state of Georgia. Should we choose those better virtues, we might all sleep better.

More on Osler's book, at the link.

Andrew Cohen posts, "The Death of Troy Davis," at the Atlantic.  Here's an extended excerpt:

In a perfect world, the execution of Troy Davis Wednesday night in Georgia would herald a new era in America's grim history with the death penalty. It would shake the criminal justice system out of its self-satisfied torpor and force government and the governed both to face the ugly truth about capital punishment in the United States in the twenty-first century. It would propel this question to the forefront both of the nation's political debate and the Supreme Court's docket: How many exceptions to the rule must we allow or tolerate, how many legitimate questions must linger beyond the death chamber, before we either fix the system or end the experiment?

When the state kills those whose guilt is in serious doubt, or when the state kills those to whom it has not given fair justice, it doesn't just perform an injustice upon the individual, the rule of law, and the Constitution. It also undermines the very legitimacy of the death penalty itself, for its continuing use as a sentencing option derives its civic and moral strength mostly from the fiction that it can be, and is, credibly and reliably imposed. Once our confidence in that credibility is shattered, as it should be now that Davis is gone, all that's left of the death penalty is state-sponsored retribution and the hangman's noose.  

In a perfect world, the haunting execution of Troy Davis would spawn vital reforms to the clemency and parole process in states like Georgia and Texas, where such proceedings routinely make a mockery of the idea of reasoned justice. It would light a fire under local prosecutors to ensure that witnesses in capital cases are not coerced by law enforcement officials. It would cause jurors to think twice about rushing to judgments. It would force a supine Congress to reevaluate its so-called "effective death penalty" statute, which neuters legitimate post-conviction appeals. And it would at long last shame state court judges to cast off the yoke of their campaign contributors, who push them to be "tough on crime" at the expense of fealty to the Bill of Rights.

Georgia says that it has given Davis more due process than any single man would have a right to expect. Up the state appellate ladder and down again. Up to the Supreme Court and back. Hearing upon hearing. Brief upon brief. At some point, Georgia says, there has to be finality in capital cases. At some point, the justice system has to accept the work of judges and juries and impose the sentence that was initially given. There is truth to all of this. And there is both rhyme and reason to many of the rules which govern appellate law and practice in capital cases. But those rules almost always place the state's interest in finality ahead of the condemned's interest in accuracy. "Enough is enough" is a great campaign slogan -- but it's hardly a worthy motto for a civilized nation's death penalty scheme.

"The Slow Death of Certainty.  Will the Troy Davis case be the one that finally turns America against the death penalty?" is the title of Dahlia Lithwick's post at Slate.

Whatever else it may come to mean, the execution of Troy Davis by the state of Georgia can stand for the proposition that the death penalty in America is finally dying. That's because the fight over the death penalty is now happening in public, at the grassroots, and with reason triumphing over emotion. In the debate over capital punishment, the desire for certainty is finally beginning to carry as much weight as the need for finality. Americans are asking not so much whether this particular prisoner should be killed as whether this whole capital system is fair.

And:

Advances in science and the empirical research on erroneous convictions are only going to create more doubt in the future. There is an almost unlimited supply of prosecutorial error and misconduct to draw on, and as it grows so will public uncertainty. And as the new media and social media broaden the debate about the death penalty, the folks who are leery of that uncertainty are ever more likely to be heard. America's conversation over capital punishment has long been weighted toward the interests of finality. But there is a growing space for reason and doubt and scientific certainty. It's hardly a surprise that prosecutors, courts, and clemency boards favor finality over certainty. That—after all—is the product they must show at the end of the day. But maybe the surprise, and the faint hope, of the massive outcry over the execution of Troy Davis, is that the rest of us have found a way to demand more from a system that has—for too long—only needed to be good enough.

At the Wall Street Journal Law blog, Nathan Koppel posts, "Will the Davis Execution Fuel Opposition to the Death Penalty?"

Let’s take one more moment to digest the execution last night of Troy Davis.

The level of interest that the case generated was striking — political figures, celebrities, and anti-death penalty opponents worldwide rallied to Davis’s defense, pleading in recent days for Georgia to spare his life.

The question now is whether the debate over the Davis execution will fuel a broader debate about the merits of the death penalty?

And:

This Salon article tackles the question of what the Davis case will mean for the broader death-penalty debate. In short, the piece expresses doubt that the Davis case will move the needle of public opinion about capital punishment. Gallup has found that support for the death penalty has remained consistent for the past decade, with Americans favoring it by a more than two-to-one margin, Salon reports, noting, however, that the level of death-penalty support has declined from the late 1980s and early 1990s, when it peaked at 80 percent.

“The reality is that we have seen other cases like Troy Davis’ before,” the Salon piece posits, “and it will probably take a lot more of them before Americans ever give up on the death penalty for good.”

Earlier coverage of Troy Davis' case and execution begins with the preceding post.

Andrew Cohen on the Buck Case - and What It Means

The noted legal analyst posts, "Coming Thursday: Another Texas Execution Under Perry," at the Atlantic.  As usual, it's a must-read.  Here's an excerpt from the beginning:

The federal trial judge in a case issues her vital ruling before the capital defendant's lawyers have completed their argument. A local prosecutor who helped convict the death row inmate now pleads with the state parole board to give the guy a new sentencing trial. Defense attorneys say that lawyers for the Attorney General's office are lying to the court. And the governor who can help stop this parade of horribles, Gov. Rick Perry, earns public cheers for his chillingly remorseless stand on capital punishment.

Welcome to Texas, to its death penalty regime, and to the excruciating case of Duane Edward Buck.

Buck is scheduled to be executed Thursday in Huntsville for a double murder he committed in Houston in 1995. No one contests his guilt. Instead, his lawyers say that Texas owes him a new sentencing trial because his first one was unlawfully tainted by race. An expert witness at his trial in 1997 impermissibly told jurors that Buck would be more dangerous in the future because he is black. As I chronicled last week, the six other men in Texas whose trials were similarly tainted all got new sentencing hearings after then-Attorney General John Cornyn conceded the state's error in 2000. Buck, however, has not.

Texas now is opposed to Buck's request. It is squeezing him because it can and because it is politically expedient to do so. The state claims that Buck did not timely raise the issue on appeal in federal court. Even though each of the other men were subsequently re-sentenced to death -- and even though that would be a likely outcome in Buck's case -- Texas says the time for Buck's judicial relief has come and gone. Even though the state helped each of the other men vindicate their constitutional rights, it will not do so in Buck's case. At a time when other states are moving away from capital punishment, this is how far to the right Texas has come on the death penalty since 2000.

On Tuesday afternoon, the Texas Board of Pardons and Paroles denied Buck's clemency request. Here is the extent of the Board's findings and conclusions: "After a full and careful review of the application and any other information filed with the application, a majority of the Board has decided not to recommend a 120-day Reprieve and Commutation of Death Sentence to Lesser Penalty." That's it. The complete document is two pages long -- the cover letter is three short paragraphs ending with the salutation, "Sincerely," by Clemency Director Maria Ramirez.

Earlier coverage of Duane Buck's case begins at the link.

Children and the Law

Law schools are hives of activity, and the University of Houston Law Center is an excellent example.  Its Center for Children, Law & Policy is activley reviving the Children and the Law blog.  I'm adding it to the Essential Law Blogs in the left column webroll.  Here's hoping it will become a regular information source for scholars and observers in the field.

I'll also take this opportunity to note the closing of one trusted, valued blawg, Capital Defense Weekly.  Karl Keys stopped posting at the end of July.  For years, CDW was a faithful reporter of issues and developments on the web.  Karl's archives remain.  Thanks for all your good work, Karl.

The West Memphis Three and False Confessions - A Special Guest Post

This guest post comes from Brandon L. Garrett, Professor of Law at the University of Virginia School of Law, and author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong.:

-----

The West Memphis Three and False Confessions

This past Friday at a hearing in Jonestown, Arkansas, the West Memphis Three, who had been convicted in 1994 of murdering three young boys, but had long claimed their innocence, finally became free men by entering a rare deal in which they officially pleaded guilty while maintaining their innocence. Over the years, the cases against the Three had come into doubt. One of the Three, Jessie Misskelley Jr., had implicated the other two after a twelve hour police interrogation. His confession was the basis for the arrests. The alleged ringleader, Damien Echols, had been sentenced to death and had been on death row for 18 years. However, new DNA tests excluded all of the Three and instead matched one of the victim’s step-fathers. With that evidence in hand the Three seemed headed towards a new trial, one in which the prosecution acknowledges the men would likely have been acquitted. This deal securing their release preempts the staging of a new trial, though the prosecutor maintains that Misskelley’s confession was true and all three are guilty.

The case has received national attention over the years, particularly after a remarkable movie about the case, Paradise Lost: The Child Murders at Robin Hood Hills, was released in 1996. The case of the West Memphis Three is the latest high-profile case of a contested police interrogation that was not carefully recorded, making it far more difficult to unravel who said what. The lawyers for the Three maintained that Misskelley’s confession was false, unreliable and included all sorts of statements totally inconsistent with how the crime happened. Misskelley was borderline mentally retarded, with an IQ of 72, yet police persisted with his lengthy interrogation. The few recorded pieces of the interrogations showed police using leading questions to try to tell him what had happened, something that interrogators are trained not to do because it contaminates a confession. We do not know what threats or other techniques were used to secure that confession. Misskelley had promptly recanted his confession, but it was used to arrest and convict him.

In my book, Convicting the Innocent, I discuss what went wrong in the first 250 cases in which DNA cleared innocent people in the U.S. Chapter Two of the book focuses on the forty cases where DNA brought false confessions to light. Many of the forty were young or mentally disabled, partially explaining why they may have been susceptible to police pressure. In addition, all but two of their confession statements were reported to have “inside information” that only the true culprit could have known. Those details may have been fed by police. However, none of the forty false confessions that I studied was recorded in its entirely. We do not know everything that happened in those interrogation rooms. As a result, until DNA technology was developed and provided decisive evidence of innocence, those false confessions appeared to powerfully support the convictions.

A new multimedia resource, called “Getting it Right,” co-produced with the Innocence Project, with support from the Open-Society Foundations, shows how wrongful convictions display patterns that can tell us how to improve our criminal justice system. The resource includes video from the false confession of Frank Sterling, who, like Jessie Misskelley, endured a grueling twelve hour  
interrogation. His case illustrates the importance of requiring the videotaping of entire
interrogations. “Getting it Right” offers a series of links to research and resources for those interested in reading more about false confessions. “Getting it Right” also features an incredibly moving video featuring Jennifer Thompson, describing how she misidentified Ronald Cotton as the man who raped her and how poor lineup procedures played a role. There are also interactive resources on informants and forensic evidence, and on the roles played by law enforcement and lawyers.

The vast majority of criminal cases lack usable DNA evidence. Like the West Memphis Three case, the 250 cases that I studied are all unusual cases in which the “truth machine” of DNA can call into question seemingly rock-solid evidence. That is why it is so important to learn from the wrongful convictions that do come to light – so that we can get it right.

-----

Many thanks to Brandon Garrett for his work.

Earlier coverage of Professor Garrett, Getting It Right and his book begins at the link.  Coverage of the release of the West Memphis Three is also available.  Related posts are in the false confessions index.

This post also appears on Harvard University Press Blog.

New California Law on Corroboration

"Law requires corroboration of cellmate's testimony," is the title of Bob Egelko's report in the San Francisco Chronicle.

Testimony by jailhouse informants will no longer be enough to convict criminal defendants in California under hotly contested legislation signed Monday by Gov. Jerry Brown.

SB 687 by Sen. Mark Leno, D-San Francisco, applies to cases in which an inmate, often in exchange for leniency, testifies that a cellmate confessed to a crime. The bill, effective next year, will require prosecutors to corroborate that testimony.

Similar laws are in effect in 17 other states. But Gov. Arnold Schwarzenegger vetoed the same proposal twice at the urging of the California District Attorneys Association, which also opposed Leno's bill.

The prosecutors' group argued that there was no need for such a law, since judges already tell juries to consider an informant's testimony with caution. The association also said a ban on uncorroborated informant testimony would make jailhouse crimes harder to prosecute.

But Leno said informant testimony is often self-serving and unreliable and can lead to convictions of the innocent. Defense lawyers and civil-liberties advocates who supported SB687 were joined by the district attorneys of San Francisco and Los Angeles, who say a requirement of corroboration, already in effect in their offices, actually leads to stronger prosecutions.

Leno praised Brown's action, saying, "Without the safeguards created in this legislation, the potential for the miscarriage of justice when informant testimony is involved is just too high."

The informant measure was one of several proposed by a statewide commission, headed by former Attorney General John Van de Kamp, that the state Senate established in 2004 to look into the causes of wrongful convictions.

More on SB 687, via the California State Legislature website.

Alexandra Natapoff posts, "California passes jailhouse informant corroboration law," at Snitching Blog.

Governor Brown just signed important new legislation requiring corroboration before a jailhouse informant can testify. SF Chronicle story here: Law requires corroboration of cellmate's testimony. California joins Texas, Illinois, Massachusetts, Idaho, and several other states that require safeguards to counteract the well-documented unreliability of jailhouse snitch testimony. Here is part of the bill:

A jury or judge may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.

I'm adding Snitching Blog to the More Criminal Justice Web Resources webroll in the left-column.  It's a fantastic resource.  Thanks to Saor Stetler for forwarding.

Related posts are in the informant / snitch testimony index.

More From David Lat

The co-author of Sunday's New York Times OpEd, "Executions Should Be Televised," has more in a post at his Above the Law blog.

Transparency has been a major theme of my writing over the years. With my first blog, Underneath Their Robes, I tried to shed light on the often opaque federal judiciary. Here at Above the Law, my colleagues and I reveal some of the secrets that law firms and law schools don’t want the public to know. The criminal justice system could benefit from greater transparency as well.

Although there are occasions when secrecy is truly required, transparency is generally a good thing. Having more information available helps people make more-informed decisions. If transparency can help young people decide whether to attend law school, and if it can help lawyers decide which firms to work for, surely transparency can and should be applied to something as important as capital punishment.

Looking the death penalty in the eye can help citizens decide whether they support capital punishment and, if so, how it should be implemented.

And:

P.S. We explore the idea of making executions public in greater depth in an article in the Tennessee Law Review (currently available on Lexis).

The Shemtob-Lat OpEd is noted at the link.

The Filing Fees Project

A group of attorneys has recencly started The Filing Fee Project. 

We’re trying to put together a comprehensive directory of filing fees for every court in America.  This project was born out of the frustration that is experienced when filing something in a foreign jurisdiction.  Some courts make their filing fees really easy to find, but others can be very difficult.  We conjectured that, by gathering all of the filing fees into one location, we could make things much more convenient for solo practitioners, paralegals, and pro se litigants.

Lawyers have adapted well to the Internet, establishing resources for other attorneys and lay people trying to get basic information.

Andrew Cohen on Witnessing Executions

The legal analyst posts, "Why Lawyers and Judges Should Watch Executions," at the Atlantic.   He is writing about Georgia's recent videotaped execution.  Here is an extended excerpt from this must-read analysis:

No one involved in the latest drama, mind you, wants to see taped executions come to the primetime television lineup. Instead, the criminal defense attorneys who convinced Fulton County Superior Court Judge Bensonetta Tipton Lane to authorize the taping of the DeYoung's execution argued that the current legal and political debate over injection protocols and drug mixes would be aided by giving judges access to tapes of the executions. The jurists would benefit from seeing direct evidence of precisely how state executions are unfolding now that Georgia is using pentobarbital instead of thiopental in its lethal injection cocktail.

This, in turn, would better enable the courts to accurately determine whether such injections violate the "cruel and unusual punishment" clause of the Eighth Amendment. The debate on this topic has gained ferocity recently because Georgia, like other states that still perform executions, have had to scramble this year to concoct a new deadly "cocktail' after the Italian maker of one of its ingredients, thiopental, decided that it no longer wanted to be a part of what United States Supreme Court Justice Harry Blackmun once famously called America's "machinery of death."

So why, specifically, did Walker's attorneys want the tape?  "We've had three botched lethal injections in Georgia prior to Mr. DeYoung, and we thought it was time to get some hard evidence," defense attorney Brian Kammer told The New York Times. Walker's attorneys told the court:

Following three consecutive irregular Georgia executions, DEA seizure of Georgia's thiopental supply for its violation of federal drug importation laws, exposure of illegal narcotics activity by the medical personnel overseeing state lethal injections, Georgia's precipitous switch from thiopental to pentobarbital -- an anesthetic whose manufacturer warns is untested and unsafe for use in judicial elections, and the subsequent botched execution of Roy Blankenship, who  lurched and grimaced in obvious pain for several minutes while dying, Mr. Walker, who stands to be executed in the same manner, moved to preserve evidence of Georgia's next intended execution.

Judge Lane, smartly, framed her ruling in practical terms. She wrote:

The briefing on this motion reflects that eye witnesses to an execution may often have varying recollections regarding the details of what happened. In some of the other cases cited by the respondent the State has attacked the conclusions suggested by witnesses on the basis that the witness has not witnessed an execution performed by the State of Georgia and/or is unfamiliar with the protocols used here. These arguments tend to underscore the potential relevance of the evidence the petition seeks to gather.

If prison officials have nothing to hide, in other words, they should at least be willing to gather and hand over such videos for subsequent use by the courts; a simple matter of giving judges the "best evidence" available. Echoing Judge Lane, Richard Dieter of the Death Penalty Information Center told me Monday that the use of videotaped executions within the criminal justice system makes sense for several reasons: 

Basically, the country is in a period of experimentation (with involuntary human subjects) as it tries to find a suitable means of execution. Although I believe the problems with the death penalty far exceed this narrower question, it is one over which there has been a veil of secrecy. Prisons and state governments have been reluctant to explain why they are choosing certain new drugs, whether they have explored all alternatives, and whether they have consulted about the side effects of new drugs being used. Having an objective view of what actually happens in the execution chamber could provide some degree of transparency in evaluating the various procedures.

And:

Update: I received an interesting note Tuesday afternoon from Megan McCracken, an expert in lethal injection law at the University of California/Berkeley School of Law. She wrote:

"The videotaping of Mr. DeYoung's execution is a step in the right direction in terms of shedding light on what happens during an execution. However, videotaping only captures what witnesses see and cannot transmit the information we actually need. When something goes wrong in a lethal injection execution, witnesses, lawyers for condemned prisoners, and the public are prevented from knowing what happened because of the paralytic that is administered to the prisoner and the secrecy surrounding the entire process. A video will not tell us what actually happened in the room where the drugs are administered, and until DOCs reveal what happened behind the scenes, it is likely we will never know what happened to Mr. Blankenship or any of the other men and women who have been executed by an unnecessarily dangerous process."

Earlier coverage of Georgia's videotaped execution and the lethal injection challenge behind it begins at the link.  Related posts are in the lethal injection index.

Bhuiyan's Fight - From the Blogs

"'My Islamic Faith Teaches Me This Too'," is Ta-Nehisi Coates' post at the Atlantic.  He notes yesterday's New York Times Q&A with Bhuiyan.

According to the Times, Bhuiyan -- who was uninsured -- was immediately discharged the next day, and spent weeks sleeping on friends sofas and relying on physician samples for painkillers.

Stroman, for his part, was sentenced to die.

Bhuiyan wants no part of it:

I was raised very well by my parents and teachers. They raised me with good morals and strong faith. They taught me to put yourself in others' shoes. Even if they hurt you, don't take revenge. Forgive them. Move on. It will bring something good to you and them. My Islamic faith teaches me this too. He said he did this as an act of war and a lot of Americans wanted to do it but he had the courage to do it -- to shoot Muslims. After it happened I was just simply struggling to survive in this country. I decided that forgiveness was not enough. That what he did was out of ignorance. I decided I had to do something to save this person's life. That killing someone in Dallas is not an answer for what happened on Sept. 11.

It is tempting to direct this toward the likes of Herman Cain and the anti-Muslim bigots who he delights in stoking up. That would be a mistake. Attempting to carry other people's ignorance generally. 

This should be directed at those of us who believe in the injustice of the death penalty, and believe in free worship. It's deeply inspiring.

At the Dallas Morning News, Michael Landauer posts, "Does it matter if a juror has regrets?"

This press release just came through the inbox (bold added for emphasis by me):

    On the eve of the execution of Mark Stroman in Texas, a juror that sentenced him to death admits that she made a mistake at trial -- and asks that his life be spared

    One of twelve jurors who served in the trial of Mark Stroman in 2002 has made a last-minute appeal to the Governor of Texas to spare his life.

    With only 24 hours until Mr Stroman's scheduled execution, Jenifer Sheehan has come forward to reveal how she was badly misled by the District Attorney Greg Davis during the trial. She has also expressed regret at her decision in the case, insisting that she was not given an opportunity to understand the wishes of the victims.

    "When I walked into that courtroom to serve as a juror I believed in the Death Penalty, but as time has passed I have come to deeply regret my decision to sentence Mark to death. Unfortunately, although I had doubts when we were deliberating, I was not able to stand up to the other bullies on the jury.

    "I was misled by the prosecution into believing that the murder of Mr. Patel was a capital crime and know now that Mark did not go into the gas station to rob Mr. Patel. I am sure of that and so I should not have taken the decision to give him the death sentence because his crime did not warrant the death penalty.

    "I also did not know that surviving victim Rais Bhuiyan, did not want Mark to be executed, and the other victims supported his efforts. The prosecution presented the evidence in such a way as to give us just the opposite impression. If I had known that they had such a strong belief in forgiveness there is no way that I would have taken the decision for him to be executed.

    "I know that some of the other jurors feel like I do and I urge them to come forward as I am in this appeal for Mark's life to be spared. I also urge Rick Perry to listen to my voice as a juror as I say that I made the wrong decision and that Mark Stroman should not be executed."

And:

Normally, I would say that a juror has a right to reconsider, but that it means nothing. After all, the system has very strict rules about what information can be given to the jury, and if jurors learn some things after the fact that change their opinion, well, that's just part of the process.

But in this case, I am troubled by the notion that the prosecutors convinced the jury that the victims wanted retribution and that they made the legal technical argument that the death of Mr. Patel was a robbery. How can they argue it both ways? It's a hate crime and a robbery?

That said, I am not sure the family's wishes should be considered too heavily. After all, I don't think it's right to allow victims to choose the punishment for a crime. Otherwise, why have a legal system at all?

Morning News Editorial Board member Mike Hashimoto posts, "One remaining detail from the Rais Bhuiyan story."

Rais Bhuiyan seems like a well-meaning person with a good heart. He survived a shotgun blast to his face fired by a racist idiot. His crusade today is to spare the life of that idiot, Mark Stroman, who's scheduled for lethal injection Wednesday.

Bhuiyan's motives are his own, and I won't question them. He's a better man than I am on this score. And since he came to the attention of an Editorial Board that opposes capital punishment, period, I'm not surprised we've taken up his cause. (I dissent, but what's new in that?)

Earlier coverage of Rais Bhuiyan's work begins with the preceding post.

Linda Greenhouse on the Supreme Court Term

For those who follow the Supreme Court, Linda Greenhouse is a national treasure.  Her latest New York Times Opinionator blog post is, "A Supreme Court Scorecard."  I'll excerpt her comments on the Leal case, but the entire post is a must-read.

The recently concluded Supreme Court term is not lacking for sober analysis, so I’ll indulge my freedom to take a different approach. This is an annotated scorecard, a personal take on the term based on what jumps out at me as I look back over the past year.

And:

Most regressive decision: In a competitive category, I’ll give the nod to a little-noticed decision the court issued just a week ago. By a vote of 5 to 4, with an unsigned opinion speaking for the majority, the court denied a temporary stay of execution to a Texas death-row inmate despite the urgent pleas of the federal government and the government of Mexico.

The inmate, Humberto Leal Garcia, who was executed within hours of the court’s ruling, was a Mexican citizen convicted in 1995 of the kidnapping, rape and murder of a 16-year-old girl. There was no dispute that his conviction was obtained in violation of a treaty to which the United States is a signatory, the Vienna Convention on Consular Relations. The treaty provides that a foreign national who has been charged with a crime must be notified of the right to the assistance of officials of his native country’s consulate. Law enforcement officials in the United States routinely violated this provision, a situation that led in 2004 to a successful lawsuit by Mexico in the International Court of Justice on behalf of 51 Mexicans then on death row in several states. The Bush administration declared that the United States would abide by the judgment.

But in 2008, when one of the 51, Jose Ernesto Medellin, attempted to avoid execution by invoking the consular treaty and the international court’s judgment, the Supreme Court ruled that the treaty was not “self-executing” and was unenforceable in the absence of congressional legislation. There matters stood until last month, when Senator Patrick Leahy, at the behest of the Obama administration, introduced the requisite legislation, the Consular Notification Compliance Act.

With Mr. Leal Garcia’s July 7 execution date approaching, the inmate’s lawyers, the administration, and the Mexican government all urged the court to grant a stay of at least several months to give Congress time to act. Solicitor General Donald B. Verrilli Jr. told the court that the case, Leal Garcia v. Texas, “implicates United States foreign-policy interests of the highest order” and that the execution “would cause irreparable harm to those interests by placing the United States in irremediable breach of its international-law obligation.” American citizens detained abroad might also face consequences as a result, the government warned.

But “our task is to rule on what the law is, not what it might eventually be,” the court’s majority responded. If the bill “had genuinely been a priority for the political branches, it would have been enacted by now.” One might ask: what part of Congress don’t they understand? There was an air of judicial triumphalism to the unsigned opinion, a tone between petulant and scolding more appropriate for use on an annoying teenager than on the president and Congress – or, as Justice Breyer pointed out in dissent, the world. The other dissenters were Justices Ginsburg, Sonia Sotomayor and Elena Kagan.

Earlier coverage of the Leal execution and international treaty law begins with the preceding post.

U.S. Treaty Promises Must Mean What They Say

That's the title of an editorial in today's Fort Worth Star-Telegram.

The grisly crime for which Texas executed Humberto Leal on July 7 -- the 1994 rape and murder of a San Antonio teen -- makes it difficult to generate sympathy for him.

But the rule of law applies to everyone, even unsympathetic characters.

The law that brought an international glare to Leal's case was the Vienna Convention on Consular Relations, a 1963 treaty that obligates the United States and more than 160 other signatories to let foreigners they arrest ask their home embassies for legal help.

But when Leal, a Mexican citizen, was arrested, authorities didn't tell him about his right to contact his native country's embassy. He didn't find out about it until he'd been convicted and sentenced to death. And despite an international court's later ruling that he was entitled to a hearing over the deprivation of his consular right, he never got one.

U.S. officials acknowledge this country's treaty obligations toward citizens of other nations. Following the treaty is especially important because we expect other countries to let Americans detained abroad get aid from the U.S. Embassy.

But Leal was among dozens of Mexican nationals on Death Row in the U.S. who weren't told they could seek embassy help. A dispute over the issue has stewed for years.

And:

Though his case is over, that shouldn't remove the urgency of Congress approving legislation to make clear that this nation takes treaty promises seriously and will enforce them.

Linda Greenhouse discusses the case in her "Supreme Court Scorecard," freshly posted on her NYT blog.  Coverage of her commentary will occupy the next post.

Earlier coverage of the Leal execution and international treaty law begins at the link.

 

Bloggers on Leal

"The rights of Texas, Mexico and Americans jailed abroad," is the title of Tim Johnson's post at his Mexico unmasked blog on the McClatchy DC Bureau website.  He's the Mexico bureau chief for McClatchy Newspapers.

Pity the poor American who ends up in jail abroad. 

If Texas gives a lethal injection to Humberto Leal Garcia on Thursday, after failing to notify Mexican consular officers when he was arrested, then certainly foreign countries will feel free to give Americans a dose of their own medicine.

Some 2,000 Americans are arrested and locked up abroad each year, according to this article, and some of them are given bizarre punishments. Remember Michael P. Fay, the Missouri youth sentenced to caning in 1994 in Singapore for theft and vandalism? Then there are the Americans who have been held in Myanmar, Syria, Iran or North Korea. 

Dozens of Americans are probably in jails in Mexico. Read about two of them here. Many of them are likely guilty. But certainly it helps if U.S. consular officers can be notified when they are arrested, visit them in prison and ascertain facts about their cases.

Mexico has spent a lot of money and time on Leal, 38, accused of the rape and murder of a 16-year-old girl in 1994. He is one of 57 Mexicans on death row in the United States. El Universal says the Secretariat of Foreign Relations has spent $10.5 million just to one Tucson law firm for the defense of its nationals on death row.

At Talking Points Memo DC, Thomas Lane post, "Will Perry Order Last-Minute Halt To Controversial Execution?" 

For a convicted murderer, Humberto Leal Garcia seems to have plenty of powerful people in his corner. In the last few days appeals for delaying the execution of this death row inmate have come from the Mexican ambassador, various UN officials and even the Obama administration's Solicitor-General.

However, it's not really Mr. Leal they're defending, but a point of international law; a point that many say the US is obliged to uphold, and which Texas Governor Rick Perry will violate if he doesn't halt the killing.

And:

The right to consular access, then, is the key here. Neither the Obama administration nor the international officials are saying Mr. Leal is innocent. What they are saying is that his case should be the subject of a review to determine whether Mexican assistance could have changed his sentence.

They're backed by a 2004 ruling from the International Court of Justice. That specifically requested such a review for Mr. Leal and fifty other Mexican nationals like him. These officials say if Texas proceeds with the execution, violating this ruling and showing disregard for the original treaty, then it could have "serious repercussions." Relations with Mexico would certainly be damaged. More worryingly, they claim, it could encourage other nations to show a similar disdain for allowing consular access when Americans find themselves in legal difficulties abroad.

"Humberto Leal Execution Raises Thorny International Issues," by David Dayen at FireDogLake.

I would imagine that the perspective of the White House is that this is less about Leal than the precedent it sets for US nationals abroad. The Vienna Convention on the arrest of foreign nationals would be violated by this execution, although it wouldn’t be the first time. In 2008, in a separate Texas case, Jose Medellin was executed after conviction for murder, even though his lawyers raised the Vienna Convention issue as well. The Leal case has been more publicized, and goes back to a 2005 ruling in the International Court of Justice. They said that Leal needed a new hearing to see if his consular rights were violated by being denied access to the Mexican consulate at the time of his arrest. George W. Bush agreed with that ruling, but the Supreme Court negated it.

The hopes that they will stay the execution of Leal today rest on the notion by the US solicitor general that Congress has pending legislation to allow this kind of consular rights review, bringing the country in line with the Vienna Convention. I’m wondering if the solicitor general has seen Congress operate lately. There’s no such thing as “pending” legislation there anymore. In fact, this law has been introduced and failed twice before. So far, lower courts rejected the stay.

Texas Governor Rick Perry appears to have no interest in a reprieve while the international issues are sorted out, especially given that he may run for President, and wouldn’t want anything resembling compassion on his record heading into a GOP primary.

"Mexican national set for execution in Texas, despite treaty concerns," by Jason Ukman at the Washington Post.

The Obama administration urged the Supreme Court on Friday to delay the execution, saying that if it were carried out, it would affect “foreign-policy interests of the highest order.” The Mexican ambassador to the United States, Arturo Sarukhan, has also requested a reprieve for Leal based on concerns about legal representation.

The breach of international obligations would “have serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention,” Solicitor General Donald B.Verrilli, Jr. wrote in an amicus brief filed with the court.

Despite the pleas, the Texas Board of Pardons and Paroles on Tuesday rejected Leal’s request for a delay.

Three years ago, Texas executed another Mexican national on death row despite international entreaties. Jose Ernesto Medellin, who also had not been informed of his right to access consular officials, was put to death following pleas for a stay by the Bush administration, which also cited U.S. treaty obligations.

One more current Leal post before turning to news of the past week - and that will include a roundup of Leal case news, also.

Earlier coverage begins with the preceding post.  For more on the case, and a petition, go to the Humberto Leal website.

More Todd Willingham, Rick Perry, 2012 Politics

The Atlantic's Ta-Nehisi Coates posts, "'Death Isn't Fair'."

Probably the best thing about writing that column was the sheer amount of great, great journalism I got to read. The Chicago Tribune series is incredible and classic even ten years later. Incendiary is a gripping fact-based explanation, not just of fire science, but how the science that convicted Willingham was wrong. It's one of the most sober debunkings I've ever seen. I don't think there's much more we can say about David Grann's piece that hasn't been said already. Obviously it was essential.

But one piece of journalism that deserves to be remembered and re-read over and over again is The Texas Monthly's monster of an investigation, "Death Isn't Fair." My favorite part of the piece is how it demonstrates that even statements like my own ("Texas fumbles at the machinery of death" or whatever I said) actually don't communicate the true nuance of the state. Consider this:

 

Only about one in a hundred killings ends up as a death penalty case. Who decides? The local district attorney. What does he base his decision on? There's no simple answer. Prosecutors have enormous discretion and are accountable to no one, except to the voters who elect them. You might think that politics would cause all DAs to be death penalty advocates, but this is not borne out by the facts. Since 1976, only 116 of Texas' 254 counties (fewer than half) have sentenced a person to death; more than half the counties (138) have never sent anyone to death row.

The Week posts, "Rick Perry's death penalty 'disgrace': A 2012 dealbreaker?"

Texas Gov. Rick Perry has not officially entered the race for the 2012 GOP presidential nomination, but a Wall Street Journal report quotes a reliable Republican source who says Perry has decided to run. Political strategists say moderate frontrunner Mitt Romney is vulnerable to a challenge from the right, making Perry a potentially strong candidate.

And:

Outside Texas, this case will cost him: The fact is that Perry denied Willingham a stay of execution despite "the overwhelming post-execution evidence that Texas made an irreversible mistake," says the Los Angeles Times in an editorial. The evidence used to convict Willingham of setting a fire that killed his three small children was based on junk science. It's understandable that execution-happy Texas would overlook that and re-elect Perry to his third term, but "the rest of the nation may not be so forgiving."

Ta-Nehisi Coates' NYT OpEd column, begins the Willingham coverage.  

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

 

A Conversation With David Kaczynski

Josh Medsker, the propietor of Twenty-Four Hours, has posted a terrific interview with David Kaczynski of New Yorkers for Alternatives to the Death Penalty.  Here are two excerpts.  You'll want to follow the link to read the entire interview, and see more of Twenty-Four Hours.

Why did the NTADP change from "against the death penalty" to "alternatives to the death penalty"? What philosophical change went on?

When New York’s death penalty was ended by the Court of Appeals in 2007, NYADP had a choice: either continue in a watchdog role to prevent reinstatement of the death penalty, or use our groups’ relationships and ethical capital to work toward a reduction in violence and healing for victims of violence. We argued that the death penalty was ineffective in reducing crime, and that it tended to aggravate rather than alleviate the grief of murder victims’ family members. As NYer’s Against the DP, we had formed many collaborative relationships with members of law enforcement, victims families, mental health advocates, social justice advocates, and clergy. What if we expanded our mission to promote common-ground goals? We had this crazy idea that if we brought all these folks together, we could create a critical mass of influential, committed people dedicated addressing the problem of violence in a serious way. We figured our only obstacles would be apathy and ingrained thinking. It actually did feel like a relief to finally be For something instead of Against something. In this case, we think the best alternative to the death penalty is for violence not to occur in the first place.

And:

Going back to the Journeys question... What historically has caused Texas to have such a strong affinity (so to speak) for the death penalty? Do you think that if your group helped change peoples' minds in Texas that it would reverberate out towards the weaker states?

Well, I lived in Texas for eight years in the 1980’s and [my wife] Linda and I still have vacation property and plans to retire in West Texas. Yeah, there are cultural differences, but I think people are pretty much the same everywhere. No one wants a system that executes the innocent and Texas has a bad record in that regard. The rate of death sentencing has gone down about 50% in Texas in recent years. Prosecutors are now less eager to seek it and juries are far less willing to impose it. Religion may play a part in Texas, since Southern Baptists, I believe, have a statement that favors the death penalty, unlike most religious groups that have statements opposing it. I think the Journey of Hope has been extremely effective in Texas, because it invites people to think more deeply about what their faith means. Unfortunately, I suspect that the more the death penalty gets used, the harder it is to get rid of since there is a general reluctance to question the status quo. There’s a certain hard-headedness in some people that desires the death penalty no matter how counter-productive it is shown to be. I’ve met a few hard-headed Texans. But, as we know, Texas has no monopoly on that breed.

Again, thanks to Josh.

Learn more about the NYADP vison, After the Death Penalty: More Justice, Less Violence.

Richard Florida on the Crime Rate

"Don't Fear the City: Urban America's Crime Drops to Lowest in 40 Years," is the title of his post at the Atlantic.  Florida is the Director of the Martin Prosperity Institute at the University of Toronto.

The long-held image of violent, crime-filled cities permeates popular culture. Thanks to TV shows, rap music, and a deep-seated antipathy to cities that has been apparent in some political and cultural quarters since at least the nineteenth century, countless Americans continue to perceive big cities through the lens of 40-year-old movies like Taxi Driver and The Out of Towners -- as cauldrons of crime, filth, and corruption (and magnets for immigrants, gays, Jews, intellectuals, and other "disreputable" minorities).

The past couple of decades have seen a powerful back-to-the-city movement that has transformed many once-notorious districts into residential quarters and high-end shopping districts. Times Square, a byword for crime and urban decay, has become a Disney-like tourist magnet, and parts of Herald Square, the heart of NYC's feared Tenderloin district a century ago, have been closed to traffic and filled with tables and chairs. Clearly something must be happening with urban crime. Crime -- both property crime and violent crime -- is down to its lowest level in 40 years, especially in America's biggest cities, according to newly released data from the FBI's annual Uniform Crime Report.

And:

Even more striking is the trend in violent crime, which is also down substantially in big cities. These crimes against people, which include murder, forcible rape, robbery, and aggravated assault, fell 5.1 percent in big cities with more than 1 million people. That's better than the decline for the smallest communities, with populations under 10,000 (4.3 percent), and only slightly off the national average.

The report notes that law-enforcement agencies provide the figures voluntarily and cautions against making city-to-city or agency-to-agency comparisons, which could "lead to simplistic and/or incomplete analyses that often create misleading perceptions adversely affecting communities and their residents." Nor does the report venture any guesses as to the cause of the downward trend.

But one factor frequently cited by criminologists is demographics. Crimes are more likely to be committed by young people, so the crime rate drops when the cohort of young people shrinks, as it has in the past few years. Better policing surely helps too, as has urban revitalization, which is bringing relatively prosperous singles, couples, families, and empty nesters into neighborhoods that had been in decline in years past, improving neighborhood quality and safety. We'll be taking a closer look at the social, geographic, demographic, and economic factors associated with crime across America's cities in a future post.

News coverage of the FBI report is in the preceding post; related posts are in the crime rates index.

Missing in Action

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  As usual, it's a must-read; here are excerpts:

By this time a year ago, Justice John Paul Stevens had announced his intention to retire from the Supreme Court. A year earlier, Justice David H. Souter’s retirement announcement was just days away. Those galvanizing mid-spring developments dominated thoughts about the future of the federal judiciary for two successive years.

This year, by contrast, all seems blissfully quiet on the Supreme Court vacancy front. (Of course, that observation comes with the caveat that I possess no inside information, and never did: on the afternoon of March 18, 1993, I assured my editors that no Supreme Court departures were imminent. Justice Byron R. White announced his retirement at nine o’clock the next morning.) It appears that for the first time in the life of the Obama administration, the White House will not face the all-consuming task of choosing a Supreme Court nominee and navigating the Senate confirmation process.

That means, it seems to me, that there are no excuses either for the administration or for the Democratic leadership in the Senate not to get down to the business of filling the 92 vacancies that now exist on the federal district courts and courts of appeals (up from 54 vacancies when President Obama took office, or from six percent to more than 10 percent of the 857 authorized judgeships).

In his state of the judiciary message on New Year’s Day, Chief Justice John G. Roberts Jr. gave a welcome shove to both parties and both branches when he said there was “an urgent need for the political branches to find a long-term solution” to filling the vacancies. Since then, though, not much has happened but a lot of finger pointing, a surprising amount of it between Senate Democrats and the White House. Each accuses the other of not making judicial nominations a sufficient priority. There is some kind of seriously baffling and dysfunctional shadow play going on here, which of course helps no one except the Republicans.

It is the Republicans who have their priorities in order, and their strategy is perfectly obvious: to deprive President Obama and any future Democratic president of a bench of highly qualified judges who can be tapped when future Supreme Court vacancies occur. In other words, it’s not about anything that the Republicans say or imply that it’s about: not “judicial activism,” nor about which nominee disrespected which Republican Supreme Court nominee at a confirmation hearing, nor about a nominee’s insufficient commitment to permitting every man, woman and child in America to carry a gun.

It’s about the bench.

And:

As I said earlier, the Republican strategy is perfectly clear. It is the Democrats’ behavior, both in the Senate and in the White House, that has progressives seething right now.

The administration is simply not nominating judges at an acceptable rate or making a public push for those it has nominated. For the current 17 vacancies on the federal appeals courts, there are only eight nominees. For 75 district court vacancies, there are 34 nominees. It’s possible to come up with explanations for some of these missing nominees — recalcitrance on the part of home-state senators, tardiness by the American Bar Association committee that vets potential nominees — but these numbers are huge. As of this month, President Obama is 33 judicial nominations behind where President George W. Bush was at the comparable point in his presidency, and 41 nominations behind President Bill Clinton.

That judges are among a president’s most important legacies is an observation so obvious as to be platitudinous. So here’s another observation: you can’t confirm someone who hasn’t been nominated.

Related posts are in the judiciary and politics indexes.  More Linda Greenhouse, at the link.

Capital Punishment Is Sin

That's the title of commentary by Roger Olson, a professor of theology at George W. Truett Theological Seminary of Baylor University.  It's at the Associated Baptist Press.

A controversy is raging over capital punishment in Texas -- a state that executes upwards of 30 to 35 people (almost all men and disproportionately African-American and poor) annually. Most Texas Christians favor capital punishment even though it has been shown repeatedly not to be a deterrent to crime. Life in prison serves just as well for that.

And:

There are several theological and ethical problems with capital punishment.

First, it ends a person’s opportunity to exonerate himself or herself. 

Second, it ends a person’s opportunity to accept Christ and live a God-honoring life in prison ministering to other inmates and guards. 

Third, it usurps God’s place and assumes a God-like right and power to take the life of a person created in God’s image and likeness.

Fourth, it has no social benefit. It only serves a blood thirst for vengeance.

Fifth, no modern, Western country still has capital punishment.

Sixth, capital punishment is barbaric and cruel -- if not to the person being executed (and who can know for sure?), to his or her family.

Seventh, innocent people are executed. A few years ago Ethel Rosenberg’s brother came forward and admitted publicly that he knew she was not complicit in the plot to steal American nuclear secrets and deliver them to the Soviet Union. He fingered her to help himself. She was electrocuted in 1953 leaving behind two small, traumatized boys.

For these and other reasons, capital punishment needs to be abolished and Christians ought to be in the forefront of that effort.

Most Christians who support capital punishment rely entirely on Old Testament material which was transcended by Jesus.

Olson also addresses the Todd Willingham case in his commentary.  Related posts are in the religion index.

Texas Opinion Roundup

"The best eyewitness is an accurate one," is the title of a Fort Worth Star-Telegram editorial.

It's a common perception that an eyewitness to a crime surely provides the best evidence. It's also a misperception.

Memory can be influenced by many factors, and flaws can be reinforced so that someone becomes convinced they saw something quite different from what they actually did.

That's significant because, of more than 44 people in Texas who've been proved innocent through DNA testing, 85 percent were convicted partly or mainly because of eyewitness identifications.

Nationally, about three-quarters of the 266 DNA exonerations involved convictions based on eyewitness IDs that proved to be wrong, according to the Innocence Project. The Texas Legislature this year has an opportunity to start correcting this clear flaw in the criminal justice system.

The state Senate on March 16 approved SB121, which would require police departments to develop written policies for handling photo and live lineups. It also would direct the Blackwood Law Enforcement Management Institute at Sam Houston State University to develop model standards and training materials for improving procedures.

The House on March 31 approved HB215, which was amended to include the same language as the Senate version.

Efforts to pass the legislation died in the 2009 session, but there doesn't appear to be opposition this time.

And:

"Eyewitness reform is a very simple, straightforward change to help create a smarter, more just system," Sen. Rodney Ellis, D-Houston, said after the Senate bill passed.

He's right. Getting prosecutions and convictions right the first time punishes the guilty, protects the innocent, saves taxpayers money and builds trust in the system.

Earlier coverage of the eyewitness id reform legislation is at the post; related posts are in the eyewitness identification category.

Lisa Graybill, Legal Director of the ACLU of Texas posts, "Review of unfair death penalty sentencing as important as innocence," at the Dallas Morning News Death Penalty blog.  Here are excerpts from this must-read:

Though death sentences and executions have declined in recent years in Texas, the state remains the national leader in executions. The Dallas County District Attorney's Office, under Craig Watkins's leadership, should be commended for taking a serious look at the questionable procedures and shoddy evidence routinely used in the past that have plagued former administrations and led to scores of wrongful convictions. But Dallas County still remains a leader among Texas counties in seeking and receiving death sentences and is on track to replace Harris County as the infamous "capital of capital punishment." Its recent handling of decades-old capital cases, including the resentencing trials of Ronald Chambers and Fernando Garcia and the retrial of Jonathan Bruce Reed now taking place, reveal serious shortcomings in its consideration of capital cases and decisions to seek death and its total unwillingness to review the unfair sentencing practices it inherited.

The case of Ronald Chambers, who was once dubbed the "Dean of Death Row" and was the longest serving inmate on Texas' death row at the time of his death, provides a telling example. Mr. Chambers, an African-American man, passed away last November in the Dallas County Jail awaiting his fourth capital sentencing trial for the 1975 murder of Michael McMahan, a white man. He had been tried three times before, in 1975, 1985, and 1992. Following each trial, his case was reversed due to clear, egregious constitutional errors, most recently in 2007 because his jury in his third trial had no mechanism to give meaningful consideration to his mitigating evidence.

The State's own misconduct and refusal to concede these errors or reform its own troubling practices over the 35-plus year history of the case resulted in years of needless delay in Mr. Chambers' appeals. Though the State was willing to spend enormous time and resources over decades fighting his appeals, it was totally unwilling to acknowledge that Mr. Chambers was a model prisoner who would not be a future danger and thus was ineligible for the death penalty under Texas law.

And:

Craig Watkins has also chosen to continue to pursue death against another capital defendant who was, like Mr. Chambers, granted a resentencing trial decades after his conviction because his jury did not have an adequate vehicle to give meaningful consideration to his mitigating evidence. Fernando Garcia was first convicted and sentenced to death in 1989. He, too, faces the very same challenges as Mr. Chambers and Mr. Reed in investigating and presenting mitigating evidence over 20 years after his conviction and sentence of death. Mr. Garcia has offered to accept a plea of stacked life sentences ensuring that he will never leave prison if the State agrees to stop seeking death against him. Against this contaminated historical backdrop, Craig Watkins should accept the offer.

Since his election in 2006, District Attorney Craig Watkins has made a very public commitment to reform. He deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past. In seeking death sentences against Mr. Chambers, Mr. Reed, and Mr. Garcia, however, he has not distanced himself from the misconduct left at his door by former administrations. A true commitment to justice and integrity requires not only taking a look at the sad legacy of wrongful convictions, but bringing the same level of scrutiny to the unfair and troubled sentencing practices of the past. He had the opportunity to do so in Mr. Chambers' case, but of course, for Mr. Chambers it is now too late. However, Mr. Watkins still has an opportunity to consider the tainted legacy and extend his promise of reform to sentencing in other capital cases, starting with the retrial of Jonathan Bruce Reed and the resentencing trial of Fernando Garcia. He should do so.

Related posts are in the future dangerousness and sentencing indexes; more on Ronald Chambers, at the link.

 

Additional Commentary on Illinois Repeal

Scott Turow writes the must-read Chicago Tribune OpEd, "The right has reason to applaud."  In addition to being a former federal prosecutor and a best-selling novelist, Turow was a member of the Illinois Governor's Commission on Capital Punishment.

Gov. Pat Quinn's decision to abolish the death penalty in Illinois is commonly viewed as a triumph for progressives. But some of the most persuasive arguments for doing away with capital punishment basically reflect conservative views. The last decade has seen many noted conservatives, including George Will, Richard Viguerie and L. Brent Bozell III, emerge as death penalty opponents. One reason that abolition became a political possibility here was not simply because it attracted Republican votes in the Illinois House and the Senate, but because many conservatives have grown more ambivalent about the issue and less fierce in their opposition.

Here are some of the leading conservative arguments for ending executions.

The death penalty is one more government program that's failed.

This oft-quoted observation is an elaboration on comments and more than a clever turn of phrase by former Illinoisan George Will, perhaps the nation's leading conservative columnist.

And:

The death penalty is incompatible with the notion of limited government.

In western Europe, all of our allies have outlawed the death penalty, most them taking that step after World War II. The reason was not so much popular opposition as historical experience. In Germany, Hitler had come to power as the result of his election, and proceeded to enact a series of tyrannical laws. The fact that the horrors of World War II sprang directly from a democracy run amok persuaded European intellectuals and politicians that the state should never have the lawful power to kill.

In the United States, we are cheerfully oblivious to those risks and with good reason. From 1998 to 2001, for example, we saw one president impeached, another empowered without a popular majority and our nation attacked by a pernicious foreign force; never once in any of those crises did we see troops in the street. The extraordinary durability of the American democracy is one of our greatest achievements, but it is naive to believe in Sinclair Lewis' phrase that it can't happen here. The conservative-libertarian view that says that the powers of government must be strictly limited supports drawing a clear line prohibiting a democratic government from ever lawfully killing any of the citizens from whom it draws power. That way a regime that vanquished its political enemies or executed despised minorities would mark itself, whatever the legal rigmarole, as an outlaw.

At the end of the day, Illinois' abolition of capital punishment is part of an evolving national recognition that the death penalty is truly un-American.

Turow is also the author of Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty, about the death penalty and his service on the Illinois Governor's Commission.  Viguerie and Bozell wrote an OpEd explaining their opposition to the death penalty last year, noted at the link.

Huffington Post is home to three posts.  First, University of St. Thomas Law prof Mark Osler, "Governor Quinn Sets The Right Tone With Abolition Of Illinois Death Penalty."

Governor Pat Quinn has now put pen to paper and abolished the death penalty in Illinois. The signing was a quiet, solemn event, held in private and attended by only a handful of invited guests.

The tone set by Governor Quinn was just right. I am among those who lobbied the governor for this decision, but there is no joy in winning this battle. A lifetime in criminal law has taught me one thing above all else: It is all tragedy, every bit of it.

As a prosecutor, when I won a case after months of work there was no joy in winning. A conviction does not un-murder a man or un-rape a woman. The best we can hope for is not to compound the tragedies that surround crime of all sorts.

The very real risk of compounded tragedy was the real, best reason for Quinn to repeal the death penalty. A murder cannot be undone; no punishment will bring the victims back. Where we risk compounding that irreversible tragedy is in the chance, however small, that we are executing the wrong person. An individual killing an innocent is horrifying; the state doing so is something even worse.

"We Can Breathe a Big Sigh of Relief Today," is written by Diann Rust-Tierney, director of the National Coalition to Abolish the Death Penalty.

When I heard the news about Governor Quinn signing legislation to repeal the death penalty in Illinois today, I remembered a speech given by Supreme Court Justice Sandra Day O'Connor to the Minnesota Women Lawyers Association in 2001. Justice O'Connor, by no means a moral opponent of capital punishment, said: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed."

Justice O'Connor told her audience in Minnesota, which does not have the death penalty: ''You must breathe a big sigh of relief every day.''

Justice O'Connor knew what she was talking about. At that time, 90 people had been released from death row nationally because of innocence. Today, that number stands at 138 people since 1973, in 26 states.

As a Supreme Court Justice, literally a member of the Court of last resort, she had seen more than her share of cases of prisoners raising harrowing claims of innocence. She had become all too aware of how the system can break down, particularly when the lawyers the system depends on to ensure fairness fail to do their jobs: fail to investigate a case or present to the jury the crucial facts that it would enable it to make a fair decision between a long prison sentence and death.

The last HuffPo essay, today, is, "Jury Out On Religion and the Death Penalty," by Cathleen Falsani.

Quinn, who is Catholic, revealed that he turned to his faith -- to the Bible and to Catholic leaders and tradition -- in contemplating the bill lawmakers delivered to him in January.

The governor even quoted Cardinal Joseph Bernardin, the beloved archbishop of Chicago who died in 1996, saying, "In a complex, sophisticated democracy like ours, means other than the death penalty are available and can be used to protect society."

Religious leaders have been at the forefront of the death penalty abolitionist movement in Illinois and nationwide. But there has been a disconnect between their activism and the opinions of their flocks.

And:

"One significant moral problem with the state having the authority of capital punishment is that the decision is irrevocable and so often carried out in ways that are racially questionable -- studies prove this," said Richard Cizik, a former vice president in the National Association of Evangelicals. "My conscience can't accept this appalling reality.

"If it's not a matter of serious reflection ... it should be!" Cizik continued. "To miss the moral questions at stake is to be hard of heart."

Earlier coverage of the Illinois repeal begins with the preceding post.

Additional Commentary on Skinner v. Switzer

Today's Austin American-Statesman carries the editorial, "Win for death penalty advocates."

The U.S. Supreme Court, in a 6-3 decision Monday, provided a significant victory for death penalty supporters by ruling in favor of a condemned Texas man battling for post-conviction testing of DNA evidence gathered at a grisly, triple-slaying crime scene in Pampa.

At the heart of this case is the fundamental question — indeed, the only question — that permeates every death penalty case and every execution: Are we sure we've got the right person?

Death penalty advocates, and we are not among those, should live with the perpetual fear of conclusive post-execution evidence that raises serious questions about guilt.

That is why, as we noted in an editorial last March on the eve of the day on which he was to be executed, death penalty advocates should want the courts to give Hank Skinner the chance to make sure the state has the right man in the Pampa slayings.

The Monday decision, allowing Skinner to pursue a federal civil rights lawsuit in which he is seeking court-ordered testing of DNA evidence not used at his trial, gives him the right to make his case as to why that testing should be done. The ruling does not order such testing. It merely allows his lawsuit — which had been thrown out by lower courts — to proceed.

And:

Last March, the Supreme Court stayed Skinner's execution, hours before it was scheduled to happen, so it could decide whether he should be allowed to pursue his civil rights suit.

The answer, overruling decisions by the Texas Court of Criminal Appeals and 5th U.S. Circuit Court of Appeals, came Monday in a majority opinion penned by Justice Ruth Bader Ginsburg.

Amarillo Globe-News columnist Jon Beilue writes, "DNA test added to Skinner's to-do list."

Whether you believe he is the scum of the earth or that he was too intoxicated on vodka and codeine to commit the crimes is not so much the issues as this is:

If we live in a civil and humane society and are in the process of killing a man and untested evidence exists that could either further confirm his guilt, raise reasonable doubt or perhaps even exonerate him, how can that simply be ignored? What does that say about us?

"That's a very reasonable question to ask - that's my question," said Matthew Wright, a criminal defense appellate attorney in Amarillo. "But for a lawyer, and thinking what the other side would say, the best argument I've heard is that you're sorta giving someone two chances."

And:

The remaining untested crime scene evidence, which Skinner has tried and failed twice to get the state to test, seems a bit more than a condemned man grasping at straws.

Maybe I've read too much John Grisham. But his nonfiction book "The Innocent Man" is chilling. An Ada, Okla., man in 1989 was sentenced for a rape and murder he did not commit. Misguided police work, forced "dream" confessions, flimsy evidence and unreliable witnesses helped convict Keith Williamson. Five days from execution, Williamson won a new trial and was exonerated by DNA evidence in 1999. Another man, unconnected to Williamson, was later convicted and sentenced to life without parole.

I'm not suggesting the prosecution was anything like this in the Skinner case. But Williamson was one of 78 inmates exonerated from death row since 1973, according to the Death Penalty Information Center. In addition, The Innocence Project reports that more than 260 have been exonerated through DNA evidence.

So what I am suggesting is because of that, this last evidence needs to tested. If Skinner committed the murders, the evidence should prove that and any remaining doubt will be erased, silencing Skinner supporters and exonerating the memory of Busby's late uncle, who some have accused of the crime. If DNA evidence says something else, well...

"Henry Skinner is going to be a cause celebrity," Wright said, "if the evidence is not tested. It will be 'Texas kills people without regard if he's guilty or not.' None of us wants that. If the test is consistent with the jury's verdict, you won't hear that any more. As a person, I can't believe they haven't tested it yet. I'm shocked. It's beyond me. Just have it tested."

It's simply too important not to.

"The U.S. Supreme Court and the Right to Test DNA Samples," is posted at Time.  It's written by Michael A. Lindenberger.

Skinner's case will head back to lower courts for argument on the merits. But, whatever happens, the Supreme Court decision is another powerful boost, despite its careful tone and narrow limits, for the use of DNA evidence by inmates who are finding new ways to challenge their convictions. And Texas, home to both the busiest death chamber in the country and, in Dallas, maybe the busiest prosecutor in the country when it comes to reviewing wrongful convictions, remains the place to watch as the justice system struggles with the conflict between the human capacity for error and the finality of death.

Politics Daily legal analyst Andrew Cohen posts, "Supreme Court Clears Path Toward Post-Conviction DNA Testing."

Skinner took his cause to federal court and was hours away from being executed by lethal injection last March when the Supreme Court stepped in to halt the proceedings under way at the Texas state prison in Huntsville. By that time, Skinner's cause had become an international one, largely because of the work performed by members of the Medill Innocence Project at Northwestern University, which sends out teams of undergraduate investigators to look into claims of wrongdoing within the criminal justice system. When Medill investigators looked into the Skinner case, starting in 2000, they found significant problems with some of the evidence Skinner's jurors had heard at trial.

In Skinner v. Switzer, Justice Ginsburg ruled that Skinner was entitled to press state officials for testing under Section 1983 in part because "success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction. While test results might prove exculpatory, that outcome is hardly inevitable... results might prove inconclusive or they might further incriminate Skinner." Justice Ginsburg rejected the argument made by Texas' lawyers that allowing such claims everywhere under the federal law would generate a new flood of prisoner litigation. "In the Circuits that currently allow §1983 claims for DNA testing," she wrote, no evidence tendered by Switzer shows any litigation flood or even rainfall."

Earlier coverage of Skinner v. Switzer begins with Texas news reporting of the Supreme Court ruling.

Illinois Tea Leaf Reading

The Chicago Now blog reports, "Governor Quinn's decision on Illinois' death penalty."  It's posted by Brian C. Thomas.

The clock continues ticking down to March 18th. That's the final day Governor Quinn can act on legislation passed by the lame duck legislature banning the death penalty.

And:

In the twenty-five years from the reinstatement of the death penalty to George Ryan moratorium, Illinois has convicted 298 men and women to death. Of those 298 sentenced to death, 20 have been exonerated.

Twenty reasons for Governor Quinn to sign the bill abolishing Illinois' death penalty.

We shall see; Governor's Quinn decision on the bill should come this week. 

Michael Sneed posts, "Death to death?" at his Chicago Sun-Times blog.

Sneed hears rumbles Gov. Quinn plans to sign legislation abolishing the death penalty in Illinois later this week.

Hmmm. Is the upcoming visit by actor Martin Sheen, a strong opponent of the death penalty who has been lobbying Quinn (and who also happens to be the father of actor Charlie Sheen), a planned coincidence? Just asking.

"Quinn Tackles Schools, Seniors, Death Penalty and Ankle Biters," is posted at NBC Chicago's Ward Room blog.

As for whether Quinn will sign the pending bill to abolish the death penalty, he said he "will act on it this week" and that "I have a few more things I want to read on it tonight or tomorrow." (New speculation is this will happen Wednesday, but we also heard it was supposed to happen last Friday.)

Earlier coverage from Illinois begins at the link.

Charles Lane on the Lethal Injection Drug Shortage

The Washington Post writer posts, "Europe's dangerous death penalty gesture," to the Post's PostPartisan blog.

According to political stereotypes, Europeans are worldly, realistic moral relativists while Americans, with our "exceptionalism" and periodic crusades to democratize the world, are comparatively idealistic. On one issue, though, the roles are reversed. America retains the death penalty, with all of its gloomy assumptions about human nature and grim moral trade-offs. Europe, by contrast, views it as immoral per se, a violation of human rights and basic human dignity. No country that practices capital punishment can be a member of the European Union.

I don't happen to agree that the issue is quite so black and white, and even wrote a small book to explain why. Still, I try to accept Europe's moral absolutism on the death penalty in good faith -- the criminological equivalent of pacifism, not a cheap anti-American posture. Europe's hectoring may even benefit the United States, to the extent that it forces us to confront the very real imperfections in our system.

But just when I'm giving them the benefit of the doubt, some Europeans go and do something irresponsible like restricting the export of sodium thiopental, an anesthetic, to the United States -- because some death penalty states use it in lethal injections. Not only is this gesture unlikely to prevent any executions -- it actually could put the lives and health of innocent Americans at risk.

Here's why. Sodium thiopental has long been a mainstay of general anesthesia; the World Health Organization lists it as an "essential medicine" for any health-care system. In the United States, a newer drug, propofol, has mostly -- but not entirely -- replaced thiopental. According to the American Society of Anesthesiologists, sodium thiopental "is still considered a first-line anesthetic in many cases including those involving geriatric, neurologic, cardiovascular and obstetric patients, for whom the side effects of other medications could lead to serious complications."

And:

To be sure, the European Union as a whole exempts medically useful sodium thiopental from its human-rights related export controls. But, as Italy showed, that does not bind individual countries. In addition to the Italian action, Britain is planning new licensing requirements on thiopental exports to the United States. Germany's health minister wrote to German pharmaceutical makers, urging them not to export sodium thiopental for executions in the United States; some firms agreed.

The upshot is that the United States must scramble for new sources of thiopental and will probably have to pay premium rates for what it finds. Existing supplies are dwindling. After Hospira announced its decision, the American Society of Anesthesiologists issued a strongly worded statement saying it was "extremely troubled" by Hospira's forced exit from the market and criticizing the anti-death-penalty movement for "using" thiopental supplies to make a point. The doctors noted the "unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use."

I suppose European restrictions on thiopental might be justifiable if they save a lot of lives on Death Row. They probably won't. U.S. executioners have indeed used thiopental as the first drug in a three-drug lethal injection "cocktail." Thiopental puts a prisoner to sleep. Then two more drugs follow to stop his lungs and heart. But substitutes for thiopental as an execution drug are readily available; Oklahoma uses U.S.-made pentobarbital, as does Ohio, which has moved to a one-drug lethal injection consisting essentially of a massive overdose of that sleep-inducing drug.

Officials in Texas, which executes more people than any other jurisdiction, told me that the state has enough sodium thiopental on hand to conduct the two executions scheduled for February, and is developing plans for later ones. They're not being specific, but my guess is that they will substitute pentobarbital, as Ohio did.

Earlier coverage begins with the post, "Death Row Drug Dilemma."