The StandDown Texas Project

Philadelphia Event

The Philadelphia Inquirer reports, "An effort to fund art instead of death row," by A.D. Amorosi.

The Philadelphia poet, painter, musician, and activist Aja Beech spent the Memorial Day weekend — whose official observance commemorates those who died serving their country — finalizing the annual "Execute Art Not People" event, which seeks to redirect state funds from prison death rows to arts and education programs.

 "With everyone volunteering time and space, we had to work around some very busy schedules — quite a round-the-clock labor of love," says Beech, noting this year’s participation by Rittenhouse Square’s Ethical Society, host of Friday’s exhibition, and the Mural Arts Program, which will hold a related interactive painting session.

Interactive involvement from across Philadelphia’s arts scene has been key to expanding the event, which was started in Harrisburg five years ago by Pennsylvanians for Alternatives to the Death Penalty (PADP). Beech has been the regional face of the operation since 2010.

"The interactive-art thing has always been an important aspect of the event, so that people experience the art and its relationship to the death penalty," says Beech, author of a 2011 book of poetry titled Beccaria, after 18th-century Milanese philosopher and jurist Cesare Beccaria, who opposed the death penalty.

To that end, on Friday evening "Execute Art" will screen Concrete, Steel and Paint, a 2009 documentary about the Mural Arts Program’s work inside Graterford Prison. It also will display artwork by prisoners. Among them is Charles Lawson, who is serving a life term at Graterford, works with Mural Arts’ Healing Walls program there, and is a cofounder of Art for Justice, which encourages prison artists.

And:

Screening/Exhibition  Execute Art Not People Free. 6-9 p.m. Friday at the Ethical Society of Philadelphia, 1906 Rittenhouse Square. For information, e-mail PhillyPADP@gmail.com, or call 267-639-6169

More Indigent Defense System News From Alabama

The Mobile Press-Register reports, "Indigent defense: Alabama expects to save millions in payments to lawyers."  It's by Katherine Sayre.

Alabama’s new Office of Indigent Defense Services projects it will cut costs in hiring lawyers to represent the poor by $8 million this year and another $15 million the following year after imposing stricter oversight.

Gov. Robert Bentley last year pushed for changes in the way that the state pays for lawyers to defend the indigent in criminal courts, and state lawmakers responded by creating the statewide office.

In the 2011 budget -- prior to the new office -- the state spent about $63 million on indigent defense, according to Deputy Finance Director Clinton Carter. The state expects to spend about $55 million this year, he said, and $40 million in fiscal 2013.

Each court circuit chooses its own way to provide legal services to the poor: contracting with lawyers to handle all of the cases on a flat rate; appointing lawyers on a case-by-case basis and paying them hourly; or creating a public defender’s office, in which lawyers become state employees with benefits.

In Mobile County, judges use the appointed system. In 2011, Mobile County had $3.4 million in indigent defense expenses. In Baldwin County, with fewer felony cases, judges use the contract system, which cost them about $1.28 million in 2011.

Carter said there was considerable evidence of “exaggeration in the billing process” and a few cases of fraud discovered in the appointment system. He declined to say specifically where those problems were found.

The new law set the hourly rate for the lawyers at a flat $70. Previously, Carter said, lawyers might charge as much as $110 per hour, based on rates of $45 for out-of-court work and $65 for in-court work, plus $25 to $45 hourly for overheard expenses.

Earlier coverage from Alabama begins at the link.

Expense and Execution

That's the title of an Alabama report in today's Florence Times Daily written by Dennis Sherer.  It's subtitled, "Death-penalty cost issue resurges as state struggles."  Here's the beginning of the lengthy report:

As many states look for ways to reduce spending, a battle is brewing between supporters and opponents of the death penalty.

Opponents contend states could save millions of dollars by abolishing the death penalty. Proponents argue the death penalty is needed to punish defendants convicted of heinous homicides, even when it means decades of paying attorneys to argue the merits of a death sentence and for housing an inmate, such as former Sheffield resident Tommy Arthur.

Assistant Attorney General Clay Crenshaw, chief of Alabama's death penalty litigators, said he is unsure how much the state has spent attempting to carry out Arthur's execution, which was first ordered in 1983.

"It's been so long, I'm not sure if anyone knows how much the state has spent keeping Tommy Arthur on death row all these years," Crenshaw said.

Arthur, 70, has been on death row for 29 years for the 1982 murder-for-hire killing of Muscle Shoals resident Troy Wicker. His conviction was overturned twice on technicalities. The state Supreme Court has set an execution date for Arthur five times only to have it halted when defense attorneys raised legal issues, most recently in March when they objected to Alabama's use of the drug pentobarbital in executions.

Arthur continues to maintain his innocence.

Alabama Department of Corrections spokesman Brian Corbett said the agency does not keep tabs on the amount of money spent on legal fees for death row inmates, only the cost of housing them, which is now about $43 per day. He said the department does not separate the cost of housing inmates on death row from the expense of keeping them in other areas of a prison.

Alabama has 101 men and four women on death row. The average age of the death row inmates is 41 and they have been there an average of 11 years and 7 months, Corbett said.

Richard Deiter, executive director of the Washington, D.C.-based Death Penalty Information Center, said states typically do not keep track of the amount of money spent on a single inmate from the time they are sentenced to death until an execution takes place.

"There's probably not anyone in Alabama who knows exactly how much money has been spent keeping Mr. Arthur on death row, but there is no doubt it has been very expensive," Deiter said. "All states need to take a serious look at how much they are spending on death penalty cases and decide if it is money well spent."

Earlier coverage of Tommy Arthur's case begins at the link.  Related posts are in the cost index.

Innocent, But Broke

That's the title of an article at Salon on North Carolina exoneree Glen Chapman, subtitled, "Glen Chapman was exonerated from death row in 2008. Why hasn't he received the $750K he deserves in compensation?"

Glen Edward Chapman, or “Ed,” was exonerated in 2008 after spending 15 years on death row for crimes he did not commit. Though North Carolina is one of the 27 states with statutes that provide some level of compensation for the wrongfully convicted, the state continues to refuse Chapman any compensation for the loss of his freedom, reputation, family, friends and much more.

Chapman was sentenced to death in 1994 at the age of 26 for the murders of Betty Jean Ramseur and Tenene Yvette Conley in Hickory, N.C. After more than a decade of court appeals, Superior Court Judge Robert C. Ervin ordered a new trial based on revelations that detectives “lost, misplaced or destroyed” several pieces of evidence that pointed to another suspect. It was also discovered that lead investigator Dennis Rhoney lied on the witness stand at Chapman’s original trial. Shortly thereafter, the district attorney dismissed all charges against Chapman due to lack of sufficient evidence leading to his exoneration in 2008.

Chapman is just one of a growing number of wrongfully convicted inmates who have been cleared thanks to criminal justice reforms and new DNA testing laws put in place over the last decade. But oftentimes the hardship doesn’t end there.

And:

In North Carolina, the exonerated are eligible to receive $50,000 for each year of wrongful imprisonment capping out at $750,000 but only if they are granted a pardon of innocence by the governor who is not required to give a reason for her decision. Chapman filed a pardon request in 2009 but a decision has yet to be made. The office of North Carolina Gov. Bev Perdue did not respond to a request for comment.

Chapman’s experience is consistent with statistics from the Innocence Project that show it takes an average of three years to secure compensation. Meanwhile, the wrongfully imprisoned face an uphill battle almost immediately upon release, starting with where they will sleep that night and how they will get their next meal. Only 10 states even offer the kinds of services — housing, transportation, education, healthcare, job placement, etc. — crucial to helping exonerees transition back into society as free citizens.

The article notes that Chapman has an interview scheduled for May 30 with the state's clemency office.  Related posts are in the wrongful incarceration index.

The Exoneration of Billy Frederick Allen

"Texas Supreme Court defines 'actual innocence' more broadly," is the Fort Worth Star-Telegram editorial. 

After decades of legal motions challenging two murder convictions, it appears that Billy Frederick Allen will receive $2 million from the state of Texas for wrongfully imprisoning him for almost 26 years.

The Texas Supreme Court on Friday issued a significant interpretation of the Tim Cole Act that allows compensation even in cases where DNA evidence is not available to nullify a conviction.

In a unanimous opinion by Justice Dale Wainwright, the court said the definition of "actual innocence" in the law includes claims like Allen's in which the trial was constitutionally flawed enough to undermine confidence in the conviction.

And:

Allen kept challenging his conviction, and a trial judge repeatedly ruled that he should receive a new trial. After the law changed for raising claims of new evidence, the Court of Criminal Appeals in 2009 threw out Allen's conviction based on the ineffective assistance of his trial lawyer in not presenting evidence pointing to someone else as the killer. Prosecutors later dropped the charges.

When Allen filed a claim with the Texas comptroller's office for compensation that's available to exonerated inmates, he was denied.

The comptroller argued that the Court of Criminal Appeals' ruling didn't amount to the declaration of "actual innocence" required by the law.

But the Supreme Court said the Legislature had made clear its intent to cover cases like Allen's.

In a detailed examination, the court said "actual innocence" encompasses both claims such as exonerations based on new evidence from DNA testing and those in which "the constitutional error at trial probably resulted in the conviction of one who was actually innocent."

"The Legislature has drawn no distinctions between the two types of 'actual innocence' claims," Wainwright wrote.

The Texas Supreme Court Ruling in In RE: Billy Frederick Allen is available in Adobe .pdf format.  Here's additional news coverage of the ruling.

Jim Vertuno writes, "Texas high court orders state to pay ex-inmate $2M," for AP.

The Texas Supreme Court ordered the state Friday to pay about $2 million to an ex-inmate who spent 26 years in prison for murder before his conviction was overturned, a decision legal experts said could set a new standard for when ex-prisoners should be compensated.

Texas has paid nearly $50 million to former inmates who have been cleared. But state Comptroller Susan Combs had resisted paying Billy Frederick Allen, arguing that his conviction was overturned because he had ineffective lawyers, not because he had proven his innocence.

The state Supreme Court, in a unanimous opinion written by Justice Dale Wainwright, disagreed, saying the state's criminal courts had shown Allen had a legitimate innocence claim and he should be paid.

Jeff Blackburn, chief counsel of the Innocence Project of Texas, which works to free wrongfully convicted inmates, said Friday's ruling could open the door for more compensation claims from ex-prisoners.

"The floodgates are not opening, but what this will do is give a fair shake to people who are innocent," Blackburn said. "This is a major step forward in terms of opening up and broadening the law of exoneration in general."

Texas' compensation law is the most generous in the U.S., according to the national Innocence Project. Freed inmates who are declared innocent by a judge, prosecutors or a governor's pardon can collect $80,000 for every year of imprisonment, along with an annuity.

What makes Allen's case different is that he didn't have an innocence declaration. What he had instead was a Court of Criminal Appeals ruling that reversed his conviction based on ineffective counsel and supported a lower court's finding that the evidence against him was too weak for a reasonable jury to convict him.

In effect, the Court of Criminal Appeals, the state's highest court in criminal matters, supported Allen's claim of "actual innocence" and he should be paid, the state Supreme Court ruled.

"Court to Texas: Pay $2 million to man imprisoned for 26 years," is the Los Angeles Times report by Molly Hennessy-Fiske.

Billy Frederick Allen, now in his 60s, was convicted of two 1983 Dallas-area murders. Unlike other inmates freed after DNA evidence proved their innocence, Allen was freed in 2009 after a court found problems with witness testimony and his trial attorneys' representation. Allen sued the state for compensation for wrongful imprisonment.

Allen's attorney said the Supreme Court ruling may prove key to developing standards for when the state must compensate former prisoners.

"There are many cases where people are struggling and they don't have DNA, but they now have hope," Allen's attorney, Kris Moore of McKinney, Texas, told The Times. "The implications of this for the Texas justice system are probably larger than people realize."

He said the ruling may make it easier for inmates such as Richard Miles of Dallas -- who served 14 years for crimes he didn't commit, then spent two years awaiting a court ruling that finally came in February -- to be  compensated more quickly.

But he said it's not clear what bearing Allen's case may have on other ongoing high-profile exoneration battles. In one such case, Kerry Max Cook has written a book and attracted celebrity supporters in his fight to prove his innocence and receive compensation for serving 22 years on Texas' death row for an East Texas murder he says he never committed.

Courthouse News Service posts, "Texas Owes $2M to Man Exonerated of Murder."  It's by David Lee.

The comptroller said Allen was freed because of ineffective assistance of counsel, not actual innocence.

A unanimous panel of the state Supreme Court concluded otherwise Friday, saying the habeas relief amounted to actual innocence.

Substantive claims based on newly discovered evidence, such as DNA, are not the only permissible actual innocence claims under the act, according to the 19-page decision.

Procedural claims that are "intertwined" with constitutional errors are permissible as well

"He asserted a constitutional claim for ineffective assistance of counsel, which coupled with a proper defense of his case at trial would probably have concluded in a not guilty verdict," Justice Dale Wainwright wrote for the panel.

The court based its holding on Schlup v. Delo, a 1995 ruling in which the U.S. Supreme Court defined actual innocence as "not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty."

Under Schlup, the standard does not address the trial court's independent judgment as to whether reasonable doubt exists. Rather the standard requires the court to make a probabilistic determination about what reasonable, properly instructed jurors would do.

In 2001, for example, the Texas Legislature changed the term "not guilty" in the statute to "actual innocence." This gives credence to the idea that lawmakers wanted to include Schlup claims of actual innocence, the judges found.

More on Schlup, via Oyez.

Relates posts are in the wrongful incarceration index.

w.star-telegram.com/2012/05/20/3973424/texas-supreme-court-defines-actual.html#storylink=cpy

Los Angeles Times Endorses Repeal Ballot Initiative

"Yes on the SAFE California Act: It would replace the death penalty with a sentence of life without parole, and solve a host of problems bedeviling the state law enforcement system," is the editorial in today's Los Angeles Times.

Carlos DeLuna was, in all likelihood, murdered by the state of Texas on Dec. 7, 1989.

It's hard to come to any other conclusion after reading an exhaustive analysis of his case published online by a Columbia law school professor and his students. And he may not be the only innocent death row inmate executed by that notably bloodthirsty state. Cameron Todd Willingham, a man whose conviction for setting a fire that killed his three young daughters was based on spectacularly shoddy forensics work, was injected with a death cocktail on Feb. 17, 2004.

This should never happen in California. In November, voters will have a chance to ensure that it doesn't.

Ordinarily, this page doesn't endorse ballot initiatives until shortly before an election, but the SAFE California Act isn't an ordinary ballot measure. It is the culmination of a movement that has been building for many years to replace the death penalty with a sentence of life without the possibility of parole. With one vote, Californians can solve a host of problems bedeviling its law enforcement system: the spiraling costs of incarceration and appeals for death row inmates, the legal tangles over methodology that have stalled executions in this state since 2006, and the unfairness built into a system in which convicts are more likely to be sentenced to death if their victims were white. And, more important, eliminating the death penalty would end the risk that the hands of all Californians will be stained with the blood of an innocent.

And:

If juries and courts were infallible, the death penalty might seem a reasonable punishment for society's most brutal killers. They aren't. In the absence of certainty, which is impossible to achieve, it is more ethical to impose less permanent sentences.

Earlier coverage of the California ballot initiative begins at the link; more on the Columbia HRLR article on Carlos DeLuna and the case of Todd Willingham, also available.

Alabama Indigent Defense Changes

The Anniston Star reports, "Changes to how Alabama runs indigent defense spark debate."  It's written by Cameron Steele.  Here's the beginning:

Anyone in the United States charged with a crime has the constitutional right to help from an attorney.

Good lawyers don’t work cheap — even when governments wind up footing the bill for defendants who can’t afford to hire attorneys on their own, a type of legal work known as indigent defense.

Because the poor make up a huge portion of those charged with crimes in Alabama, indigent defense is expensive — costing the state $63.2 million in fiscal 2011.

While state officials agree indigent defense is a vital function of the courts, there is less common ground about how to fund and deliver quality legal services to poor defendants on the state dime.

For years, different counties in Alabama have chosen different systems — contract, appointment and public defense office — to provide that adequate representation for indigent people and adequate compensation for the lawyers who do the work. That decentralized approach is still in place today, but last year, the state Legislature took its first steps toward overhauling the indigent defense system and bringing down its cost with the creation of a new office within the state Finance Department.

Called the Office of Indigent Defense Services, it monitors the systems used by the different counties, reviews the bills that attorneys submit to the state and, somewhat controversially, is helping to switch many of the appointment-based systems to contract work — the cheapest way to provide indigent defense services.

Related posts are in the indigent defense index.

Garcetti: Death Penalty Serves No Useful Purpose

"The risks of the death penalty outweigh any justification," is the title of former Los Angeles District Attorney Gil Garcetti's letter to the editor of the Washington Post.  Garcetti is active in the SAFE California ballot initiative to repeal that state's death penalty.

In his April 30 column, “Connecticut’s courage,” E.J. Dionne Jr. wrote that “American politics is still capable of springing surprises.” For some, the California vote in November to replace the death penalty with a life sentence without parole will be surprising — as was my own change of mind. I served in the Los Angeles County District Attorney’s Office for 32 years, eight as district attorney. I was responsible for enforcing the death penalty law when appropriate.

I now believe that the death penalty serves no useful purpose, that spending $184 million annually to enforce it is obscenely expensive and that it is not a deterrent. With more than 720 people on California’s death row, my guess is that like some in Illinois and other states, a few of California’s condemned are innocent. We might not yet know who they are, but virtually every week, throughout our nation, evidence is found that proves someone’s innocence.

Coverage of the California ballot initiative begins at the link.  E.J. Dionne's syndicated column is also noted.

From South Carolina

"Rate of death sentences, executions slows in SC," is the title of the AP report by Jeffrey Collins.  It's via Spartanburg Herald Journal.

A judge in Lexington County is considering doing something that hasn't been done in South Carolina in over 14 months — send a convicted murderer to death row.

If Kenneth Lynch is sentenced to death for killing a 7-year-old girl and her 53-year-old grandmother, he would be the 52nd inmate on South Carolina's death row, boosting the population up from its nearly two decade-low.

The pace of executions has slowed considerably too. South Carolina has executed just one inmate in past three years. There were 72 people awaiting execution in the state at the end of June 2005, and just 10 executions in the state since then. Prosecutors in South Carolina sent no one to death row in 2011, the first time that happened since at least 1994.

And:

There may be no better way to illustrate how seeking the death penalty has changed in South Carolina in the past two decades than the case of Shaquan Duley, who is serving 35 years in prison after pleading guilty in March to suffocating her 2-year-old and 18-month-old sons, putting them into a car and rolling them into a Orangeburg County river to try to make it look like an accidental drowning

The case brought immediate comparisons to Susan Smith, who left her two sons in her car to drown in a Union County lake.

Smith's prosecutor sought the death penalty, but Duley's didn't.

Prosecutor David Pascoe said his immediate reaction was to try to send Duley to death row. But after thinking long and hard, he decided against it.

"Once you file for the death penalty, the clock gets moving and the money, the taxpayers start paying for that trial," said Pascoe. He added that Duley's clean record before her arrest and the fact that her relatives did not want her executed also factored into his decision.

Related posts are in the cost index.

Dallas County Records 31st & 32nd Exonerations

"Two more Dallas County men cleared after serving decades for rape they didn’t commit," is the title of Jennifer Emily's Dallas Morning News report.

Raymond Jackson and James Williams returned to the same Dallas County courtroom Monday where they were wrongly convicted of rape nearly 30 years ago.

This time, though, court was in session to clear their names.

State District Judge Susan Hawk and District Attorney Craig Watkins shook their hands and apologized for the miscarriage of justice. Hawk declared the men “actually innocent” in the 1983 kidnapping, rape and shooting of a Canadian woman.

“To say I’m sorry is not enough,” Hawk said to the beaming Jackson, 67, and Williams, 54. “But I hope you both have very full and happy lives.”

They are the 31st and 32nd men to be exonerated in Dallas County since 2001. Dallas County has had so many exonerations because, unlike in other jurisdictions, evidence was preserved at the county crime lab, sometimes dating back to the late 1970s.

And:

An all-white jury sent the men, who are black, to prison based on eyewitness testimony, which has been proven notoriously unreliable in recent years. Most DNA exonerations in Dallas County and around the country involve the victims or witnesses wrongly identifying defendants as the perpetrator.

Jackson and Williams had alibis, but the jury did not believe them. They were sentenced to 99 years in prison.

Related posts are in the exoneration and wrongful incarceration indexes.

Death Penalty in California Does Not Make Us Any Safer

That's the title of an OpEd in today's Sacramento Bee written by John Van de Kamp, a former state attorney general and for Los Angeles County district attorney.

In November, by supporting the SAFE California death penalty initiative, we can put the money saved toward apprehending the guilty and making our state a safer place for our families, while providing public protection by making those now subject to the death penalty go to life in prison without parole.

The system is broken and wasteful. Former Chief Justice of California Ronald George called it "dysfunctional." Newly appointed Chief Justice Tani Cantil-Sakauye agrees, telling the Los Angeles Times that keeping the death penalty structure as it exists now is the "worst possible option" and that it is "not working." Cantil-Sakauye is a former prosecutor herself, and she knows that time now given to death penalty cases could be better spent on the beleaguered courts that she oversees.

Overall, the death penalty doesn't make us safer – better crime-solving can do that. I was recently inducted into the California Forensic Science Institute's Hall of Fame for my work in advancing forensic science tools such as our state's DNA database, which helps us find the guilty and exonerate the innocent. SAFE California will provide public protection by keeping those truly guilty of death penalty crimes locked up for life, and in the meantime saving us millions of dollars that will be invested in crime-fighting measures leading to the apprehension of serious criminals.

Earlier coverage of the California ballot initiative begins with the preceding post.

It's Official - Repeal Initiative on California November Ballot

"Californians to vote on abolishing death penalty," is Paul Elias' AP report, via the San Francisco Chronicle.  It's also available from the New York Times.  Here's the beginning:

A measure to abolish California's death penalty qualified for the November ballot on Monday.

If it passes, the 725 California inmates now on Death Row will have their sentences converted to life in prison without the possibility of parole. It would also make life without parole the harshest penalty prosecutors can seek.

Backers of the measure say abolishing the death penalty will save the state millions of dollars through layoffs of prosecutors and defense attorneys who handle death penalty cases, as well as savings from not having to maintain the nation's largest death row at San Quentin prison.

Those savings, supporters argue, can be used to help unsolved crimes. If the measure passes, $100 million in purported savings from abolishing the death penalty would be used over three years to investigate unsolved murders and rapes.

The measure is dubbed the "Savings, Accountability, and Full Enforcement for California Act," also known as the SAFE California Act. It's the fifth measure to qualify for the November ballot, the California secretary of state announced Monday. Supporters collected more than the 504,760 valid signatures needed to place the measure on the ballot.

"Our system is broken, expensive and it always will carry the grave risk of a mistake," said Jeanne Woodford, the former warden of San Quentin who is now an anti-death penalty advocate and an official supporter of the measure.

The measure will also require most inmates sentenced to life without parole to find jobs within prisons. Most death row inmates do not hold prison jobs for security reasons.

Though California is one of 35 states that authorize the death penalty, the state hasn't put anyone to death since 2006. A federal judge that year halted executions until prison officials built a new death chamber at San Quentin Prison, developed new lethal injection protocols and made other improvements to delivering the lethal three-drug combination.

A separate state lawsuit is challenging the way the California Department of Corrections and Rehabilitation developed the new protocols. A judge in Marin County earlier this year ordered the CDCR to redraft its lethal injection protocols, further delaying executions.

Since California reinstated the death penalty in 1978, the state has executed 13 inmates. A 2009 study conducted by a senior federal judge and law school professor concluded that the state was spending about $184 million a year to maintain Death Row and the death penalty system.

Supporters of the proposition, such as the American Civil Liberties Union, are portraying it as a cost-savings measure in a time of political austerity. They count several prominent conservatives and prosecutors — including the author of the 1978 measure adopting the death penalty — as supporters and argue that too few executions have been carried out at too great a cost.

"My conclusion is that he law is totally ineffective," said Gil Garcetti, a former Los Angeles county district attorney. "Most inmates are going to die of natural causes, not executions."

Garcetti, who served as district attorney from 1992 to 2000, said he changed his mind after publication of the 2009 study, which was published by Judge Arthur Alarcon of the 9th U.S. Circuit Court of Appeals and law professor Paula Mitchell.

The Los Angeles Times reports, "Measure that would end death penalty in California qualifies for ballot."  It's by Maura Dolan.

California is set for a major debate on the death penalty following qualification Monday of a November ballot measure that would replace capital punishment with a life term without possibility of parole.

If passed, the measure would make California the 18th state in the nation without a death penalty. During the last five years, four states have replaced the death penalty and Connecticut is soon to follow.

Growing numbers of conservatives in California have joined the effort to repeal the state's capital punishment law, expressing frustration with its price tag and the rarity of executions. California has executed 13 inmates in 23 years, and prisoners are far more likely to die of old age on death row than by the executioner's needle.

November's ballot measure would commute the sentences of more than 700 people on death row to life without possibility of parole, a term that would then become the state's most severe form of criminal punishment.

Most death row inmates would be returned to the general prison population and be expected to work. Their earnings would go to crime victims.

Backing the new measure are Ron Briggs, who ran the 1978 campaign for a successful ballot initiative that expanded the reach of California's death penalty; Donald J. Heller, an ex-prosecutor who wrote the 1978 initiative; Jeanne Woodford, a former warden of San Quentin State Prison who oversaw four executions; and former L.A. County Dist. Atty. Gil Garcetti, who said his experience as D.A. helped change his mind about the fairness of the system.

Although their views on the proposition are unknown, former California Chef Justice Ronald M. George and current Chief Tani Cantil-Sakauye, both Republican former prosecutors, have stated publicly that the death penalty system is not working.

Reuters posts, "Death penalty repeal to go before California voters," by Dan Whitcomb.  It's via the Chicago Tribune.

California could join 17 other states and the District of Columbia without capital punishment, assuming the Connecticut law goes into effect.

"It's unusual and could be historic. I don't think any state has removed the death penalty through referendum since the 1960s. That was Oregon. They (later) reinstated it," said Richard Dieter, executive director of the Death Penalty Information Center.  "In most states, it's a legislative process," he added.

Illinois, New Mexico and New Jersey have all chosen to abolish the death penalty in recent years, and New York's death penalty law was declared unconstitutional in 2004.

Other state legislatures are considering bills to end the death penalty, and Oregon's governor has said he would halt all executions on his watch.

"Death Penalty Ban Makes Nov. Ballot, is Michael Gardner's report in the San Diego Union-Tribune.

Secretary of State Debra Bowen announced Monday that an initiative to repeal the state’s 33-year-old death penalty law has qualified for the ballot.

If voters approve, the measure would replace the death penalty with a mandatory sentence of life in prison without the possibility of parole. That would make California the 18th state to enact such a change.

Supporters say voters are open to banning capital punishment given the cost of the lengthy death penalty appeals process and the fact that executions are carried out so rarely.

“The law is totally ineffective and obscenely expensive,” said initiative supporter Gil Garcetti, a former Los Angeles County district attorney who once favored the death penalty.

Marc Klaas, whose daughter’s killer remains on death row 16 years after being convicted, sees it differently.

“It really galls me to think about reversing his death penalty. To do what? To make him a ward of the state for the next several decades?” said Klass, whose daughter Polly was kidnapped from her Petaluma bedroom and murdered by Richard Allen Davis.

Supporters had submitted more than 800,000 signatures of registered voters statewide and needed slightly more than 500,000 valid ones to qualify the initiative. San Diego County reported that 67,948 signatures were turned in. Of those, a sampling projected that 53,522 are valid, according to the Secretary of State’s Office.

Supporters of the initiative contend the change in the law would save the state $184 million a year by closing down death row and reducing the number of drawn-out appeals in the state and federal court systems.

The measure would set aside a share of the savings — about $100 million over three years — to investigate unsolved killings and rapes. The rest could be redirected to other needs, say those arguing for the initiative.

Earlier coverage of the California ballot initiative begins at the link.  The Alarcon-Mitchell law review article, "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," is available in Adobe .pdf format.  You can also view news coverage of the study.

The Repeal Momentum

"Fight against death penalty gains momentum in states," is Dalina Castellanos report for the Los Angeles Times.  It's also available via the Chicago Tribune.  Here's the beginning:

The fight against the death penalty is gaining momentum, opponents of the practice say, with Connecticut's decision this month to abolish capital punishment making it the fifth state in five years to so do.

"For this to be happening in succession, and coupled with the decline in death penalty convictions, it creates a momentum that other states will at least consider to be a part of," said Richard Dieter, executive director of the independent Death Penalty Information Center.

Connecticut legislators voted to abolish the death penalty Wednesday, and Democratic Gov. Dannel P. Malloy has said he will sign the bill. Connecticut will be the 17th state to do away with capital punishment and the seventh state to stop the death penalty since it was reinstated as constitutional by the U.S. Supreme Court in 1976. The District of Columbia abolished it in 1981.

Opponents of capital punishment still cite moral and religious arguments — and last week's vote in Connecticut was preceded by more than nine hours of gut-wrenching debate. But another force behind the recent trend is cost.

"Right now, budgets are still unbalanced in many states and programs are being cut in many areas," Dieter said. "Schools, libraries and police forces … their budgets are all being cut. Lawmakers are thinking of getting rid of things they might not believe in that are expensive."

California spends an additional $184 million per year total on its more than 700 death row prisoners than if they had been sentenced to life without the possibility of parole, according to a comprehensive 2011 study by Loyola Law School in Los Angeles.

An Urban Institute study in 2008 found that a single death sentence in Maryland costs almost $2 million more per case than a comparable non-death-penalty case.

"It's not just the cost in a vacuum," said Shari Silberstein, executive director of Equal Justice USA, a national grass-roots organization that opposes the death penalty. "It's not to say that if it was a good economic time, we'd be supporting it. But people are weighing the cost … and realizing that the death penalty is a very ineffective way to keep the public safe, especially for the money."

The Times article is accompanied by a graphic, "States with no death penalty."

Also from California, Natasha Minsker posts, "Replacing the Death Penalty: From Connecticut to California," at California Progress Report.  She's the Campaign Manager for the SAFE California Campaign.

Last week, the Connecticut Assembly voted to replace the death penalty with life without parole as maximum punishment for murder in that state. Governor Dannel Malloy has already pledged to sign the bill into law. Once he does, Connecticut will be the 17th state to turn from the death penalty in the United States.

This is great news for the people of Connecticut. They’ve plugged a major drain on state resources and have freed up funding for effective public safety solutions.

The impact of Connecticut’s decision will be felt far beyond the state’s own borders. Connecticut is now the fifth state to replace the death penalty in five years – and observers from around the world rightly expect California to be the next state to do the same.

The death penalty system is broken in many of the exact same ways here in the Golden State. But there are some important differences:

• Connecticut’s estimated $5 million in annual death penalty costs pale in comparison to California’s $184 million per year. Spending on the death penalty for the entire state of Connecticut comes to about 3% of what we spend in California in just one year.

• California has the largest and costliest death penalty system in the country. We have over 700 prisoners on death row – with the attendant special housing, security and legal costs – even though there is no practical or legal possibility that any of them will be executed for many years, if ever.

Earlier coverage from Connecticut and Califonia begins at the links.  Related posts are in the abolition and state legislation indexes.

The Pennsylvania Death Penalty & Ray Krone's Exoneration

"10 years after DNA cleared York County man, death penalty still debated," is the retrospective article by Teresa Ann Boeckel from the York Daily Record.  Here's the beginning

Ten years ago today, Ray Krone walked out of an Arizona prison after DNA tests showed he did not murder a Phoenix bartender in 1991.

He became the 100th death row exonoree, and his case came at a time when federal legislators were considering death penalty reform, said Richard Dieter, executive director of the Death Penalty Information Center.

What shook many was that Krone had been convicted twice in the murder, he said.

Krone was a military veteran, a Bible reader, and one of the top graduates in his Dover Area High School class. He had maintained his innocence during the 10 years he spent in prison, two of those years on death row.

"It was a revelation that so many mistakes could havebeen made," Dieter said.

In the past 10 years, several states, such as Illinois, New Mexico and New Jersey, have abolished the death penalty, Dieter said. Others, such as Maryland, Connecticut and California, are seriously considering it.

The number of executions nationwide has dropped in the last 10 years, and the public is more aware of the errors that can occur.

Though Krone had moved to Arizona following service in the military, he had deep routes and family in York, Pennsylvania, and the Daily News championed his case in the years before Krone was exonerated.

"Death penalty a bad option," is the editorial of the Pocono Record.

The same week Connecticut's Senate voted to repeal the death penalty, a Monroe County jury agreed to impose that ultimate penalty on convicted murderer Michael Parrish.

That death penalty shouldn't have been recommended — but not because of the jury's decision. Jurors only did their duty in a state whose sentencing guidelines include capital punishment for the most egregious crimes.

Rather, Pennsylvania ought to be reconsidering the death penalty altogether. Before Connecticut, four other states — New York, Illinois, New Mexico and New Jersey — all abolished the death penalty, citing moral and fiscal reasons.

Important moral considerations aside, the death penalty is unarguably costly thanks to protracted, expensive appeals. Even years of incarceration don't add up to such legal costs.

But the fundamental problem with the death penalty is that it always carries with it the possibility of error. Sending the wrong person to death for a crime that person did not commit is not a risk moral people should be willing to take.

And:

Clearly the Parrish jurors deemed him guilty of the most heinous of crimes and felt he deserved the ultimate punishment. But by allowing the death penalty, states keep open the possibility, however slight, that someday, in some case, an innocent person could be wrongly convicted and put to death. A majority of Connecticut's House members recognize that as unacceptable and voted last week to abolish the death penalty. That state's Senate and governor are expected to follow suit. Pennsylvanians, too, should acknowledge that there is no margin for error when it comes to putting someone to death.

"Pocono religious leaders weigh in on death penalty," by Andrew Scott also appered in the Sunday Pocono Record.

Members of various faiths and denominations in the Poconos religious community were asked to weigh in about the death penalty after a jury this week convicted Michael Parrish of Effort of murder and decided he should be executed.

Earlier coverge of Pennsylvania capital punishment issues begins at the link.

Nevada Cost Study

The Las Vegas Sun reports, "Study lays out costs associated with death penalty in Nevada."  It's written by Gregan Wingert.

The ACLU of Nevada recently highlighted a study conducted by a UNLV professor who found that defending the death penalty in Clark County costs at least $170,000 more than defending cases where life in prison is sought.

Terance Miethe, of UNLV's department of criminal justice, began the study in January and determined that the 80 pending capital murder cases in Clark County will cost approximately $20 million, according to the report.

Miethe's research estimates that public defense attorneys have spent double the time, about 2,300 hours, on capital murder cases as opposed to non-capital murder cases, the report says.

According to the study, 35 cases resulting in the death sentence between 2009 and 2011 took, on average, more than three years to complete. The study concluded that life with parole and life without parole cases took 2 to 2 1/2 years, respectively.

The ACLU of Nevada issued a press release, "Study on Murder Cases in Clark County Completed."  Here's the release text:

The American Civil Liberties Union of Nevada thanks Dr. Terance Miethe of the Department of Criminal Justice, University of Nevada—Las Vegas, for conducting a study on defense attorney time spent on murder cases in Clark County, and also Clark County Commissioner Chris Giunchigliani for having commissioned the study by Dr. Miethe. Dr. Miethe observes that defense costs associated with capital cases are $170,000 to $212,000 higher than in those cases where the death penalty is not sought.

ACLU welcomes the insights provided by Dr. Miethe, but cautions that the information provides only a necessary first step in analysis. It is critically important that the full array of costs associated with the death penalty be examined.

This study, dated Feb. 21 but not obtained by the ACLU of Nevada until April 4, provides an independent reference point for discussions about priorities, staffing, and funding of Clark County District Attorney’s office, and provides some harder numbers in place of estimates given to the Clark County Commission by former District Attorney David Roger in early 2011. However, as concerning as some of these numbers might be—such as the estimate of $20 million to handle 80 pending capital murder cases—the study was based on a survey of only 22 defense attorneys. The study also correctly points out, on page 7, its own substantial limitations: “It is important to note that this statistical extrapolation does not cover the full array of time spent in capital cases by other court officials (e.g. judges, prosecutors, jurors), staff and administrative personnel, mitigation specialists, investigators, and expert witnesses. It also does not take into account the additional costs of capital litigation that are associated with state/federal appeals and the extra costs of imprisonment of death-eligible inmates pending trial and sentencing.”

Thus, Dr. Miethe also states on page 7: “Given these major omissions in the present analysis, a more comprehensive study is required for estimating the overall costs and benefits of capital litigation in this jurisdiction across all groups involved in the criminal processing and adjudication of these cases.”

In the 2011 Nevada Legislature, the commission of a statewide cost study on the death penalty was passed by the Assembly and the Senate, only to be vetoed by Gov. Sandoval, who said he did not think the bill was specific enough to ensure that such a study would be “reliable” and “fair.” This seems to have overlooked the fact that death penalty cost studies have been performed nationwide (Nevada could simply replicate the methodology of the best study[s] performed in other states) and that the state government employs numerous experienced and highly trained accountants, auditors, economists, and attorneys.

The American Civil Liberties Union of Nevada will be back in the 2013 Legislature again advocating for a moratorium on the death penalty in Nevada, which was originally part of the 2011 bill but was amended out, and the kind of comprehensive cost study that now has also been called for by Dr. Miethe.

The complete study, "Estimates of Time Spent in Capital and Non-Capital Murder Cases: A Statistical Analysis of Survey Data from Clark County Defense Attorneys," and the Executive Summary are available in Adobe .pdf format from the ACLU of Nevada.

Cost has been an issue in Nevada in the past.  Related posts are in the cost index.

The California Ballot Initiative

"Fighting to Repeal an Execution Law They Once Championed," is Adam Nagourney's New York Times report.  It's set to appear in the Saturday edition.

The year was 1978, and the California ballot bristled with initiatives for everything from banning gay teachers to cracking down on indoor smoking. Both lost. But one, Proposition 7, sailed through: expanding the state’s death penalty law to make it among the toughest and most far-reaching in the country.

The campaign was run by Ron Briggs, today a farmer and Republican member of the El Dorado County Board of Supervisors. It was championed by his father, John V. Briggs, a state senator. And it was written by Donald J. Heller, a former prosecutor in the New York district attorney’s office who had moved to Sacramento.

Thirty-four years later, another initiative is going on the California ballot, this time to repeal the death penalty and replace it with mandatory life without parole. And two of its biggest advocates are Ron Briggs and Mr. Heller, who are trying to reverse what they have come to view as one of the biggest mistakes of their lives.

Partly, like most death penalty opponents, they changed their minds for moral reasons. But they also have a political argument to make.

“At the time, we were of the impression that it would do swift justice, that it would get the criminals and murderers through the system quickly and apply them the death penalty,” Mr. Briggs, 54, said over tea in the kitchen at his 100-acre farm in this Gold Rush town, where he grows potatoes, peppers, melons, watermelons, cherries and (unsuccessfully, so far) black Périgord truffles.

“But it’s not working,” he said. “My dad always says, admit the obvious. We started with 300 on death row when we did Prop 7, and we now have over 720 — and it’s cost us $4 billion. I tell my Republican friends, ‘Close your eyes for a moment. If there was a state program that was costing $185 million a year and only gave the money to lawyers and criminals, what would you do with it?’ ”

California is not the first state to reconsider the death penalty in an era when questions have been raised about its morality and effectiveness. And even with these unusual advocates — and a new argument, that the death penalty has cost the state a fortune but produced only 13 executions in 34 years — the repeal faces tough going.

Earlier coverage of the California ballot initiative begins at the link.

No Danger of Excess Justice

That's the title of Marc Bookman's Philly.com commentary on capital indigent defense in Philadelphia.  He's executive director of the Atlantic Center for Capital Representation.

Two astonishing but largely unnoticed events recently took place in the Philadelphia criminal justice system: A young man was sentenced to death after proceedings that were often reminiscent of a routine felony case; and John Herron, the administrative judge of the Common Pleas Court, dismantled a committee of judges, defense lawyers, and prosecutors convened to monitor and improve the quality of representation in death-penalty cases.

Almost 25 years ago, when a majority of the U.S. Supreme Court refused to address the overt racism of capital punishment in Georgia, Justice William Brennan wrote that his brethren seemed to have a "fear of too much justice." It's a fear Philadelphians need not have.

The man sentenced to death here was represented by court-appointed lawyers who have represented scores of other indigent defendants. They were paid an absurdly small amount to defend him in the face of the ultimate punishment.

What did the money buy? A review of the court record doesn't take long. There isn't a single motion filed by the attorneys in defense of their client. Nor is there a request for a jury questionnaire, which is standard in most jurisdictions that regularly handle capital cases, or for a mitigation specialist to prepare a case against the death penalty. Indeed, the only motion in the record was handwritten by the defendant. Prison logs indicate that his lawyers visited him a total of three times.

Jury selection took only two days, partly because the defense didn't ask prospective jurors a single question about the death penalty. In Texas, which executes more convicts than any other state, the average jury selection in death-penalty cases takes a month.

And:

Was this case an aberration? Hardly. Court-appointed lawyers in Philadelphia rarely visit their clients much, seldom file motions on their behalf, and never use a jury questionnaire.

The reason is obvious, and it was clearly articulated in a report to the Pennsylvania Supreme Court by Common Pleas Court Judge Benjamin Lerner, who found that the fees paid to these lawyers were "grossly inadequate." Judge Herron recently ordered that the fees be raised, but they are still well below national standards. Worse, the new fee schedule doesn't pay lawyers for their court time - giving them that much more incentive to finish trials as quickly as possible. In other words, if we're asking attorneys to work for next to nothing, we are likely to get next to nothing from them.

This is not a technical issue. Death sentence after death sentence has been reversed based on the quality of legal defense in Philadelphia.

This is no secret to the city's criminal justice system. A RAND Corp. study released in December revealed the consequences of the disparity between the city's under-compensated court-appointed lawyers and the well-trained, well-funded attorneys of the Defender Association of Philadelphia. It found that the result actually cost taxpayers more than $200 million just for incarceration.

Earlier coverage of Philadelphia indigent capital justice issues begins at the link; related post in the indigent defense index.

Additional Coverage of the Alabama Lethal Injection Challenge

"Attorney questions lethal-injection drug," is the Florence Times Daily report written by Bernie Delinski.

While the Alabama Attorney General’s office seeks to have another execution date set for death-row inmate Tommy Arthur, his defense attorney is hoping for a day in court to challenge the way Alabama carries out executions.

Arthur, 70, a Sheffield native, avoided death for the fifth time last week when the state’s appeal to the 11th U.S. Circuit Court of Appeals to lift Arthur’s stay of execution was denied.

And:

Arthur’s attorney, Suhana Han, said she is relieved by the ruling, but it only upheld the stay. It did not address whether to reconsider an earlier decision to let Arthur challenge the execution protocol.

“It’s a three-drug protocol,” she said. “It’s the first drug that’s at issue.”

Han said if that drug — pentobarbital — does not work correctly, it would cause the inmate to experience feelings associated with drowning and excruciating pain as though he were burning up internally.

Arthur contends Alabama’s three-drug lethal injection process is cruel and unusual because pentobarbital might not render an inmate unconscious before the lethal drugs are administered.

Also on the lethal injection from, Khadeeja Safdar posts, "Legally Killing People Has Gotten A Lot More Expensive," at Huffington Post. 

The price of execution drugs is now 15 times higher than it was a year ago, according to The Austin American-Statesman. This is most significant for Texas, a state that continues to carry out the largest number of executions while struggling with a $4.1 billion budget gap.

A year ago, it cost the Texas Department of Criminal Justice approximately $83 to execute an inmate by lethal injection, the American-Statesman reported last month. That price has risen to nearly $1,300.

Although the cost for all three of the drugs that comprise each lethal injection have increased, the total price jump is mostly due to the replacement of sodium thiopental with a more expensive substitute called pentobarbital, the Los Angeles Times reports. Hospira, the Italian supplier of the sodium thiopental, discontinued production because the Italian government wanted proof that the drug wasn't used for executions, the Associated Press reported last year.

While death penalty abolitionists are pointing to rising prices as yet another reason to end the practice, the constraint on the drug supply is only increasing. Lundbeck, the Danish manufacturer of pentobarbital, has already tightened its supply amid death penalty opposition from overseas, the Financial Times reported last year.

There is some of that same pressure at home, where more states are closer to a ban on capital punishment. Californians, for example, have made moves to put it on the state ballot, while Maryland and Connecticut are about to abolish the practice, the AP reports.

Earlier coverage of the Alabama challenge in Tommy Arthur's case begins at the link

Related posts are in the cost and lethal injection indexes.

Retrials Offer Some a Path Off Death Row

That's the title of Brian Roger's report in today's Houston Chronicle.

Death penalty trials, beginning with weeks of hand-picking jurors, continuing through relentless questioning and concluding with arguments about justice and mercy, are exhausting and emotional.

Yet, with more than a dozen death row cases from 20 years ago overturned in recent years for flawed jury instructions, Harris County prosecutors have been faced with doing them over again.

Since 2009, three of the defendants have had their lives spared after Harris County District Attorney Pat Lykos allowed them to plead guilty in exchange for stacked life sentences.

Three other men whose capital murder cases were reversed have gone through a second grueling trial and are back on death row, including Carl Wayne Buntion, who was again sentenced to death earlier this month.

The death penalty cases tied to flawed jury instructions continue to come back to Harris County as they exhaust their other appeals.

And:

"We look at it again, from start to finish, and decide if it is still a death penalty case," said Jim Leitner, the district attorney's first assistant. "We really have to look at who is the worst of the worst."

The office has to balance the time and energy of redoing an old case against finite resources, which may mean a death row inmate can get a deal by pleading guilty to stacked life sentences.

"Even though a jury once decided this is a death penalty case," Leitner said. "We look at what evidence we still have, access to witnesses, strength of the case and the willingness of the person to plead to something that will keep them out of commission forever."

Some attorneys have been able to persuade prosecutors to walk away from the death penalty.

"Death penalty trials take weeks and weeks longer, everything is amped up," said attorney Danalynn Recer. "It takes a huge amount of resources and exhausts everyone, including the victim's family, and then the case goes on forever."

Problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case, Penry v. Lynaugh.  That ruling was more fully applied following the 2007 case, Abdul-Kabir v. Quarterman; more on both cases via Oyez. Juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty did not allow jurors to do that.

Earlier coverage of this issue begins at the link.

An Update on the Texas Regional Public Defender for Capital Cases

"Public defender office returns $400,000 to counties," is the title of Logan G. Carver's report in today's Lubbock Avalanche-Journal.

A capital defense program comprising almost every county in the region on Thursday returned more than $400,000 to participating counties.

Lubbock County officials, along with staff from the Regional Public Defender for Capital Cases, presented a check to county judges at a conference of the Texas Judicial Academy, a partnership between the County Judges Education Committee of the Texas Association of Counties and the Texas Tech School of Law.

“We’re hoping we’re going to be able to do this each year,” office director Jack Stoffregen said.

The office provides legal representation in cases where a defendant faces the death penalty.

Since its creation in 2007, when it started serving the seventh and ninth administrative judicial districts, it has expanded to the second, third, fourth, fifth and sixth districts.

The money returned Thursday went to the 77 participating counties out of the 85 total counties in the seventh and ninth districts.

Lubbock County Court Administrator David Slayton, who was instrumental in establishing the office, said it wasn’t fair to keep more money in the reserve fund than was originally budgeted for.

In five years, the reserve fund has never been touched, he said.

And:

By last year, the fifth year, the office was completely self-funded.

“We had high hopes from this program when we funded it in 2007. It has met and exceeded our expectations. Programs like this that can increase the quality of defense and be cost-effective for counties and the state are exactly what the commission is looking for,” Texas Court of Criminal Appeals Presiding Judge and Chair of the Texas Indigent Defense Commission Sharon Keller said in a statement.

Because of some additional support from the commission during the second year, as well as scrupulous budgeting on Stoffregen’s part, the office had amassed a surplus nearly twice what was needed in case of an unusually expensive case, Stoffregen said.

Since his office intends to keep a reserve of about $500,000 in the coffers, Stoffregen returned to the counties $408,336.

Earlier coverage of the Regional Public Defender for Capital Cases begins at the link. 

Related posts are in the indigent defense and  Texas Indigent Defense Commission (formerly known as the Task Force on Indigent Defense) category indexes. 

Pennsylvania and the Death Penalty

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

In the past year, the appalling injustice of Pennsylvania’s death penalty system has been the subject of review and debate among the state judiciary, lawyers and the media. Two new judicial reports and a recent death sentence for an indigent defendant in Philadelphia further bolster the case to abolish the system.

In February, a report by a Philadelphia judge ordered by the Pennsylvania Supreme Court found that the amount the city has long paid court-appointed private lawyers in death cases is “grossly inadequate” and has increased “the risk of ineffective counsel.” A RAND study in December similarly found that low pay and lack of support for court-appointed lawyers in Philadelphia were significant factors in inadequate legal representation. The consequences have played out in legal appeals: of the state’s capital convictions since 1976, 32 percent were reversed or sent back for new hearings because of errors by lawyers, according to an investigation by The Philadelphia Inquirer last October.

Another Philadelphia judge issued an order late last month suspending the work of a committee of judges and lawyers charged with identifying lawyers qualified to represent death penalty defendants. The committee came up with 12 names, which the judge said was “insufficient to meet the immediate needs.” He stopped the committee from doing further work, and, expressing frustration, put the task in the hands of a single judge.

And:

Although Pennsylvania has carried out only three executions since 1976, its system is no less barbaric for that fact. Two hundred and five inmates are on death row. The White case underscores the state’s continuing failure to meet constitutional standards in capital cases. It is well past time for the state to stop its machinery of death.

Earlier coverage of Pennsylvania death penalty issues begins at the link.

In the Kansas Legislature

"House panel explores views on death penalty," is Tim Carpenter's report for the Topeka Capital-Journal.

Former District Judge Steven Becker urged lawmakers to acknowledge Thursday imperfection of the state's criminal justice system and cast aside the lone absolute, final punishment.

The retired Reno County judge attached himself to a series of prosecutors, defense lawyers, church leaders and activists testifying at the Capitol in support of a House bill repealing capital punishment. No action was taken on the measure.

"As long as the death penalty is a part of our imperfect system," Becker said, "there will always be the unacceptable possibility of the execution of an innocent person."

The House Corrections and Juvenile Justice Committee hosted the hearing on a bill providing a path for reversal of Kansas law on capital punishment. The measure appears stalled in the House Federal and State Affairs Committee, where Republicans oppose the reform, and the Senate hasn’t taken up the issue in the 2012 session.

And:

Capital punishment was reinstated in Kansas in 1994 when Democratic Gov. Joan Finney allowed a bill to become law without her signature. Kansas hasn't executed an inmate since the mid-1960s.

In 2010, the Senate fell one vote shy of adopting a bill replacing the death penalty with a sentence of life in prison without the possibility of parole for the crime of aggravated murder.

The League of Women Voters of Kansas submitted testimony arguing the state couldn't afford financial ramifications of the death penalty. Two years ago, the cost of prosecution and appellate action on a single case was estimated at $1.2 million. The incarceration of someone sentenced to life in prison in Kansas was placed at $740,000.

Ron Wurtz, a federal public defender and the original director of the state's Death Penalty Defense Unit, said proponents of the death penalty couldn’t escape the reality of 140 people in 26 states having been released from death row with evidence of innocence since 1973.

Earlier coverage from Kansas begins at the link.  Related posts are in the state legislation index.

CBS News '48 Hours" to Revisit Anthony Graves' Exoneration

This Saturday's edition of CBS News "48 Hours" will revisit the wrongful conviction and exoneration of Anthony Graves.  A preview of this updated telling of "Grave Injustice," is available from CBS News.  The program is scheduled to air at 10:00 pm (EDT), 9:00 pm (CDT); check local listings for your CBS affilliate.

You can also view CBS News' press release, announcing the program.

“If it hadn't been for 48 Hours Mystery, I don't think I would be getting my compensation,” said Anthony Graves following the announcement that he would be awarded restitution after nearly 20 years of wrongful incarceration.

On April 23, 2011, 48 HOURS MYSTERY correspondent Richard Schlesinger reported the story, “Grave Injustice,” of Anthony Graves, a Texas man who walked free in October 2010 when it was proven that he had been wrongfully convicted in 1994 on six counts of capital murder. Formerly known as Inmate #999127, Graves was on death row when a group of journalism students from the University of St. Thomas in Houston began looking at his case. After four years of investigating, they uncovered the truth: Anthony Graves was an innocent man.  

Despite gaining his freedom and good name back, Graves did not receive complete justice. According to a 2009 Texas law, those exonerated can receive $80,000 for every year they were imprisoned; however, because two words – “actual innocence” – were missing from Graves’ prison release papers, Texas refused to compensate him.

“They (48 HOURS MYSTERY) laid out my case for the whole world to see and as a result it made Texas do the right thing. I owe it all to 48 Hours, for first taking an interest in my case, seeing the injustice for what it was, and then showing the rest of the world,” said Graves.

Earlier coverage of Anthony Graves' wrongful conviction and exoneration begins at the link.  All coverage is in the Anthony Graves index.  Additional coverage of Texas compensation for those wrongfully incarcerated is also available.

Another Call for California Repeal

"First, abolish the death penalty," is the title of a Los Angeles Times editorial.  It appeared in the Sunday edition.

This page has a long history of opposing the death penalty. As far back as 1971, before the alternative sentence of life without the possibility of parole had been devised, we were pining for such a choice. If there were a way to ensure that convicted killers would remain in prison for life, a member of The Times' editorial board wrote during the Nixon administration, "would it not be better to forgo, in some humility about the limitations of human judgment, the imposition of the ultimate punishment? We are inclined to think it would."

We are still so inclined. So when an activist group called SAFE California submitted 800,000 signatures to election authorities this month for a November ballot measure to end capital punishment in the Golden State, it seemed we were headed for one of the easiest endorsement decisions we've been confronted with in years. It still may be, though the measure contains a provision we wish it didn't.

The so-called SAFE California Act would do two things we wholeheartedly support: It would change the maximum penalty imposed by California courts from death to life without parole, and it would retroactively apply that same penalty to inmates currently on death row. But it doesn't stop there. It would also order the state to transfer $30 million a year for three years to municipal police and prosecutors "for the purpose of increasing the rate at which homicide and rape cases are solved."

Although it's true that eliminating the death penalty could save more than $100 million a year, this kind of ballot-box budgeting is one cause of California's annual budget nightmare, imposing a straitjacket on lawmakers when revenues fall and making it impossible for them to set reasonable funding priorities because money is legally committed to specific programs.

Earlier coverage of the California repeal ballot initiative begins at the link.

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.

A View From Colorado

"The death penalty and the company we keep," is the title of Englewood Courier View columnist Norma Engelberg's latest. 

Some call the death penalty a crime deterrent, but statistics don’t bear this out.

According to the Federal Bureau of Investigation’s 2010 Unified Crime Report, the South accounts for 80 percent of executions and had the highest murder rate. The North, which has an execution rate of under 1 percent, had the lowest murder rate.

In “Death penalty not efficient,” an October 2009 article in the Dayton Daily News, Dayton Police Chief Richard Biehl is quoted as saying, “If it’s deterrence, it doesn’t seem to get the job done at all. If it’s justice, that’s another question.”

Other police chiefs interviewed for the article said the death penalty doesn’t deter murder because most murders are impulsive acts, and those that aren’t are planned by people who don’t think they’ll be caught.

And:

When it comes to countries that permit the death penalty, the United States keeps company with such developed countries as Japan, Taiwan and Singapore but also with the likes of Iran, Iraq, Libya, Pakistan, Saudi Arabia, Syria, Somalia and other hotbeds of social injustice. Are these examples of the company we want to keep? Not likely.

Related posts are in the column index.

Georgia Indigent Defense

"Georgia House approves indigent defense measure," is written by Dave Williams for the Atlanta Business Chronicle.

Georgia lawmakers created a statewide indigent system nine years ago for fear of being sued.

On Monday, the Georgia House of Representatives overwhelmingly passed a constitutional amendment guaranteeing the system’s source of funding for the same reason.

Lawmakers voted 164-1 to ask Georgia voters this fall whether the revenue from court fees should be dedicated to legal services for defendants too poor to afford their own lawyers.

A constitutional amendment is required because under the current Georgia Constitution, all revenues raised by the state must go into the general fund budget.

And:

Faced with tight budgets during the Great Recession, Georgia governors and lawmakers have diverted revenues raised by court fees away from indigent defense to help prop up the general fund, said Rep. Rich Golick, R-Smyrna, chairman of the House Judiciary Committee (Non-civil) and the amendment’s chief sponsor. As a result, the system is being under-funded, he said.

Earlier coverage of Georgia indigent defense issues begins at the link.

The Illinois Repeal

"Abolishing death penalty was right choice for state," is an OpEd by Charles W. Hoffman for the Chicago Sun-Times.  It appeared in the Sunday edition.  He's an assistant defender in the Office of the Illinois State Appellate Defender, who has argued death penalty appeals before the Illinois Supreme Court.

One year ago this Friday, Gov. Pat Quinn signed legislation abolishing the death penalty in Illinois.

The rightness of that decision is more clear than ever. Violent crime rates have not climbed. The public is no less safe. And the pursuit of justice has been served, not undermined.

Although hundreds of convicted murderers had been sent to Death Row since Illinois reinstated capital punishment in 1977, only 12 men had been executed in the 34 years the death penalty law was on the books. Yet during that same period, 20 innocent men were convicted of murder and sentenced to death, only to be exonerated after spending decades in prison facing execution for crimes they didn’t commit.

The last execution in Illinois took place in 1999, one year before former Gov. George Ryan declared a moratorium on the death penalty, as the only way to avoid what he termed “the ultimate nightmare” of the state wrongfully executing an innocent person. That moratorium remained in effect until capital punishment finally, and officially, ended last year.

Death penalty proponents had long argued that capital punishment was necessary to deter murders. But no evidence ever supported such an argument. In fact, in the year since abolition, the Chicago Police Department reports that the murder rate in the city remains at a 40-year low.

And:

Our system of capital punishment was abolished because it was broken beyond repair, infected with racism and inherently arbitrary and prone to mistakes. There is no doubt we’re better off without the death penalty, both morally and fiscally.

The first anniversary of the abolition of that barbaric practice in Illinois is a joyous, and yet somber, occasion, which gives us all the opportunity to reflect on the profound fact that we, as a sovereign state, no longer kill people to show that killing people is wrong.

Coverage of Illinois' repeal of capital punishment begins at the link; coverage of the costly last Illinois capital prosecution is also available.  Related posts are in the abolition and OpEd indexes.

California Editorials Call for Repeal

Today's Silicon Vallery Mercury News carries the editorial, "California voters should abolish the death penalty."

In November, California can join 16 other states in doing away with the death penalty. It can't happen soon enough.

Backers of the initiative to scrap the death penalty in favor of life in prison without the possibility of parole have gathered enough signatures to put the measure on the ballot. It's now up to voters. Passing the initiative will allow California to put an extra $180 million into its general fund every year to improve education, health care and even public safety. The fortune now spent trying to execute people instead could pay for more police officers and crime prevention programs.

San Quentin Warden Jeanne Woodford supports scrapping the death penalty. So does Don Heller, the former prosecutor who helped write the 34-year-old law, which now is proven to be ineffective in every way.

And:

The death penalty always has been barbaric. Now we also know it is ineffective. It's time to stop. Just stop.

"Time to end the charade," is the Stockton Record editorial.

More than a dozen men sit on San Quentin Prison's death row for crimes they committed in San Joaquin County.

Likely the men - among them serial killer Wesley Shermantine - will die there, although not in the manner prescribed by law.

Since California reinstituted the death penalty in 1978, 94 condemned inmates have died, but only 14 by execution. Fifty-five others died of natural causes, 19 committed suicide, and the others expired by means such as being shot in an exercise yard or being stabbed in an exercise yard. One died of a heart attack after a pepper spray exposure.

And for that, the state has spent billions - literally billions - maintaining the charade of a functioning capital punishment system. Truly, does any rational person believe California is actually going to execute all of the 725 men and women condemned to die? Ever?

It's time to end this, to stop kidding ourselves that this broken system can or will be fixed.

Earlier coverage of the California ballot initiative to replace its death penalty begins at the link

Texas Execution: How Much Is a Death Worth?

That's the title of an article in the BBC News Magazine.  It's written by Daniel Nasaw.  It examines practices in several states, and the use of foreign-sourced drugs.  Here's a brief excerpt:

The cost of lethal injection drugs used in the US to kill criminals on death row has risen dramatically over the past year. The increase comes as their manufacturers move to prevent them being used in executions.

The state of Texas is scheduled to spend $1,286.86 (£811) to kill Keith Thurmond on Wednesday night.

And:

The cost of the death drugs has risen 15-fold since 2010, when the mixture cost the state $86 (£55).

That is because the drug formerly used to sedate the patient, thiopental sodium, is no longer available, having been pulled off the market in 2010.

As a result, Texas and several other states switched to another sedative, pentobarbital. The drug is significantly more expensive - and it may soon become impossible for capital punishment prisons to purchase.

"Even though it is a small amount in the big scheme of things, it represents one more spiralling expense that makes the death penalty less reliable and more costly," says Richard Dieter, executive director of the Death Penalty Information Center in Washington DC.

Recent posts on the stock, cost, and use of lethal injection drugs include:

• The Cost of Lethal Injection Drugs
• Oklahoma Also Running Low on Execution Drugs
• FDA Sued Over Lethal Injection Imports
• Judge Halts Killer's Ohio Execution, Scolds State
• Hospira Under Fire for Sales of Pancuronium, Used in Executions
• European Union Steps Up Pressure With New Controls

Related posts are in the lethal injection index.

Additional Coverage of ABA Missouri Report

The ABA Missouri Assessment Report is available at the link.

Today's Kansas City Star reports, "Missouri death-penalty cases should be reduced, study says."  It's by Jason Hancock.

Missouri should narrow the kinds of cases subject to the death penalty so that only the most serious murders are eligible, according a two-year study sponsored by the American Bar Association.

The state also should prohibit the execution of the severely mentally ill and do a better job of preserving forensic evidence such as DNA samples. it said.

The study, which does not take a position on whether the death penalty should be legal, was released Thursday and conducted by a panel of law professors, private attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents.

They said serious problems with the death penalty in Missouri must be addressed to ensure fairness in the system and prevent an innocent person from losing his or her life.

“It is the ultimate penalty, and we’ve got to get it right every time,” said Douglas Copeland, a St. Louis attorney who served on the panel.

Among the panel’s other suggestions: improving standards for defense counsel in death penalty cases; revising jury instructions to help jurors better understand their roles in death penalty cases, and narrowing the number of cases subject to the death penalty.

“We discovered important procedural and resource changes that could dramatically reduce errors and inconsistencies in Missouri’s death penalty system,” said Paul Litton, a law professor at the University of Missouri-Columbia.

"Study recommends changes to Missouri death penalty system," by Elizabeth Crisp for the St. Louis Post-Dispatch.

Missouri prosecutors too often are given the opportunity to seek the death penalty in murder cases, according to a new report.

Aside from limiting the types of cases in which the death penalty can be sought, the American Bar Association-sponsored report makes more than 25 recommendations that it says would improve fairness in the use of capital punishment here. The recommendations range from new evidence preservation policies to laws that aim to protect the mentally disabled.

Currently, prosecutors can use one of 17 aggravating circumstances to argue for death sentences in murder cases.

“Under the current law, virtually any murder is eligible for the death penalty,” said St. Louis attorney Douglas Copeland, who co-chaired the assessment committee that drafted the recommendations.

And:

Missouri is the 10th state for which the ABA has sponsored a death penalty report.

Copeland said the committee members’ views on the death penalty were split. The ABA has sought a moratorium on use of the death penalty in the United States, but the Missouri group did not consider whether the state should end the use of capital punishment, he said.

Instead, the goal, Copeland said, was to “minimize the risk of executing the innocent” and make sure that capital punishment is used only in the most egregious cases.

“Everyone must recognize that it is the ultimate penalty and one that cannot be undone,” he said. “We must get it right every time.”

"Bar Association: Missouri death penalty needs reform," by Jessica Machetta at MissouriNet.  There is video at the link.

A Missouri law panel says crimes punishable by the death penalty are too broad in our state. The American Bar Association report calls for consistency and clarification in state law.

Missouri is the tenth state for which the American Bar Association has released an in-depth analysis — 400 pages worth — of the death penalty. St. Louis Attorney Douglas Copeland was on the panel that has examined the system for two years.

He makes one thing clear — it was not the panel’s function to decide whether there should be a death penalty, or that a moratorium should be implemented.

The Missouri Association of Prosecuting Attorneys responded to that by issuing a statement that says, “Missouri’s prosecutors are pleased the ABA did not recommend a moratorium on the death penalty, as they have in many other states. They obviously realize that, while there is always room for improvement, Missouri’s criminal justice system is fundamentally sound.”

The group did identfiy several factors it says leads to possible inconsistencies in sentencing, including mental illness, preservation of DNA evidence and trial court instruction for jurors. Now, prosecutors can argue to a jury that someone should be sentenced to death, the report says. It lists 17 aggravating circumstances that give prosecutors a wide birth for recommending the death penalty.

"Commission finds death penalty unevenly applied in Missouri," by Dick Aldrich at Missouri News; also with video..

The goal of the assessment team was not to support or rally against the state’s current capital punishment law. Rather, panel member Douglas Copeland said the panel’s assignment was to conduct a review of the laws, procedures, and practices by which the death penalty is implemented in Missouri.

“We kind of left our opinions on the death penalty at the door,” said panel spokesman Douglas Copeland, a private practice attorney from St. Louis.

Overall, the committee found that inconsistencies in Missouri’s laws lead to broad interpretations that in turn lead to inconsistent sentencing. University of Missouri Law School professor Paul Litton said the U.S. Supreme Court has ruled that the death penalty should be reserved only for the most extreme cases of murder. Litton said the assessment team found 17 aggravating circumstances in Missouri law that trigger the death sentence, with many creating broad categories under which a criminal can receive a death sentence.

“As a result, the aggravating circumstances provide little guidance to prosecutors with respect to sentencing decisions,” said Litton.

Professor Rodney Uphoff of the University of Missouri School of Law said Missouri courts hand out the death sentence in a seemingly arbitrary manner.

“And the problem with that is, in a run of the mill armed robbery that sadly ends in a murder, that young man gets the death sentence, when across the state, somebody who commits a double homicide only gets life, or life without the possibility for parole,” Uphoff said. “We’re not criticizing prosecutors, what we’re saying is when you look at crimes across the state, you shouldn’t have a vastly different sentence for somebody who commits a crime on end of the state and not on the other end of the state.”

The report concludes that the state legislature is going to have to work out a solution to the statutory problems to bring more consistency to the death penalty process in Missouri.

Earlier coverage of the ABA Missouri Assessment Report is at the link.

Signatures Submitted for California Repeal Ballot Initiative

"Californians may vote on death penalty in November," is the Sacramento Bee report by Sam Stanton.

The SAFE California Campaign said it has collected about 800,000 signatures to get a measure on the November ballot to transfer the sentences of death-penalty inmates to life without the possibility of parole.

The campaign, whose name stands for "Savings, Accountability, Full Enforcement," needed to turn in slightly more than 504,000 signatures to the secretary of state's office. If approved for the ballot, the measure would mark the first time since Californians approved the death penalty in 1978 that state voters have an opportunity to weigh in on the practice.

Only one other state – Oregon – has set aside capital punishment by a vote of the people, though it was reinstated in 1978. Sixteen other states have done away with it through legislation or the courts.

California's situation is different from most states' because of the sheer size of its death row – 725 inmates and counting – and the cost of maintaining it.

Advocates for abolishing the state's death penalty – a coalition of the American Civil Liberties Union, lawyers, crime victims and law enforcement officials – will argue it's a pocketbook issue: They estimate that the death penalty costs the state $137 million a year because of the time-consuming court appeals that ensue and requirements for maintaining prisoners on death row.

Given the lengthy appeals process, only 13 men have been executed since capital punishment was restored in California. The average time they spent on death row before execution was 17.5 years, state prison officials say.

"Bid to end death penalty headed to the ballot," by Bob Egelko for the San Francisco Chronicle.

For the third time in 40 years, Californians will likely vote in November on the death penalty, a practice that has had at least as much impact on the state's politics as on its institutions of crime and punishment.

Opponents of capital punishment said Thursday they were submitting 800,000 signatures on petitions for an initiative to close the nation's largest Death Row, which has 725 condemned prisoners. The measure needs 504,760 valid signatures to make the ballot.

"California voters are ready to replace the death penalty with life in prison with no chance of parole," declared Jeanne Woodford, who oversaw four executions as warden of San Quentin State Prison. She now heads the anti-capital-punishment group Death Penalty Focus.

It was an unusually optimistic statement in a state whose residents have consistently supported the death penalty. The most recent Field Poll, in September, showed 68 percent support - although respondents in the same survey, when asked their preferred sentence for murder, backed life without parole over death, 48 to 40 percent.

"End death penalty measure likely to be on November ballot," by Howard Mintz for the Silicon Vallery Mercury News.

The SAFE California Act would replace the death penalty with life in prison without the possibility of parole. If approved, the law would convert the death sentences of the state's 725 death row inmates to life in prison terms and eliminate the death penalty option in murder cases.

Californians historically have strongly supported the death penalty, famously ousting former Chief Justice Rose Bird and two Supreme Court colleagues in 1986 for refusing to uphold death sentences.

But at the same time, the state's death penalty system has been marred by epic delays of 20 years or more in legal appeals. Just 13 inmates have been executed since the restoration of capital punishment in 1978, prompting even some leading death penalty supporters to question its benefits.

California has not executed an inmate in six years, the result of ongoing legal challenges to the state's lethal injection method that are expected to extend a moratorium on the use of the death chamber for at least another year.

"Death penalty opponents move closer to November ballot initiative," by Carol J. Williams of the Los Angeles Times.  It's via the Bellingham Herald.

"Our focus in times of fiscal crisis should be crystal clear. The death penalty wastes $184 million a year over life without parole," said Gil Garcetti, a former Los Angeles County district attorney whose support for the death penalty has been eroded by the soaring costs of maintaining a punishment seldom meted out.

But those who support capital punishment say the opponents' cost-savings figures are inflated. The number of new death sentences fell dramatically last year and for the last decade have been well below the rate of the 1990s, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation.

Audio of the complete press conference is available at, "California death penalty ban headed towards November ballot," by Rina Palta for KALW-FM.

This morning at San Francisco’s City Hall, members of the SAFE California Coalition submitted signatures to the Department of Elections to put an initiative on the November ballot that would end the death penalty in California. Proponents say they gathered over 800,000 signatures, which will now be reviewed by elections officials before they’re able to send the proposal to voters. If passed, the initiative would replace capital punishment with life without the possibility of parole.

SAFE California’s message is three-pronged. The group says California’s death penalty is expensive, prone to error, and ineffective–both in that it hasn’t been carried out in years because of constitutional lawsuits, and because, they say, it doesn’t make California safer.

Southern California Public Radio posts, "Death penalty to get up or down vote from California voters," by Corey Moore of KPCC-FM.  There is audio at the link.

Come November, California voters can decide whether lawmakers should switch out the state’s death penalty for life in prison without parole. Supporters of the SAFE California Act have gathered more than the 500,000 signatures they need to place the measure on the ballot — almost 300,000 more.

“799,589 signatures," said L.A. County District Attorney Gil Garcetti after checking his text messages for the latest petition update. "That’s incredible. That is incredible.”

More on the measure is at SAFE California.

Earlier coverage from California begins at the link.

ABA Assessment in Missouri

"Study says Missouri death penalty too broad," is the AP post by David A. Lieb, via the Kansas City Star.  It's also available via the St. Louis Post-Dispatch.

Missouri has too many reasons for which prosecutors can pursue the death penalty against murder suspects and needs to do a better job of preserving forensic evidence such as DNA samples, according to a report being released Thursday.

 The report is the result of a two-year study sponsored by the American Bar Association that was conducted by a panel of law professors, private-sector attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents. The Associated Press obtained a copy of the report before it was to be publicly released later Thursday at a Capitol news conference.

 The study notes that Missouri has 17 "aggravating circumstances" that give prosecutors wide discretion by which they can argue to jurors that someone should be sentenced to death. One justification, for example, is that the murder was "wantonly vile." The result is that the circumstances "are so broadly drafted as to qualify virtually any intentional homicide as a death penalty case," the report says.

 The report recommends narrowing the law so that only the most serious murder cases are eligible for the death penalty.

Also from Missouri, KMOX-AM reports, "Death Penalty Under Review."

The death penalty in Missouri is again under scrutiny, and this time the concern is the cost.   A senate committee heard testimony from a number of people including the Deputy Director of the Missouri Public Defender System, Dan Gralike.

“I am personally familiar with one death prosecution. It had to be retried because because of various errors five times since 1992. I estimate the cost to the state to be well over three or four  million dollars simply for the cost of the public defender.” said Gralike.

A bill under consideration would have the state auditor study the cost of Missouri’s death penalty.   Republican Representative Stanley Cox testified some crimes deserve the death penalty and the option should not be eliminated.

The ABA Missouri Assessment is available at the ABA Moratorium Implementation Project website.

Late last year, a Kentucky Assessment was released.  Related posts, including other state assessments, are in the ABA index.

Maryland Legal Scholars Demand Death Penalty Repeal

That's the title of a Baltimore Sun report, subtitled, "State's requirements create arbitrary and expensive system, attorneys say."  It's written by Steve Kilar.

More than three dozen legal scholars and attorneys — including former Gov. Harry R. Hughes and two former Maryland attorneys general, J. Joseph Curran Jr. and Stephen H. Sachs — are sending a letter and report to members of the General Assembly urging the repeal of the state's death penalty.

"There's a lot of misconception about Maryland's law" among legislators and the general public, said Jane Henderson, executive director of Maryland Citizens Against State Executions, which organized the lobbying effort. The group was prompted to release the report, she said, because "many people think that Maryland had shut down its death penalty."

The attorneys argue that Maryland's death penalty law, enacted by the General Assembly in 2009, is still too arbitrary and costly to be worthwhile. Under the law, prosecutors can seek death only in cases where there is biological or video evidence tying the defendant to the murder or a videotaped confession.

Those evidentiary limits are artificial, Henderson said.

"It's a really odd way of limiting the death penalty," said Henderson. Instead of focusing on the nature of the crime and remorse of the criminal — the "worst of the worst" offenders — prosecutors are deciding to pursue death on evidentiary issues, she said.

The current death penalty law is also costly, she said, because it adds "a second phase to the sentencing trial," according to the report, which cites a 2008 Abell Foundation study that found "execution cost almost three times more than a non-death sentence — including the cost of long-term incarceration in life sentences."

Wednesday marks the fifth day of an Anne Arundel County jury's death penalty deliberations in the case against Lee Edward "Shy" Stephens, found guilty this month of stabbing a correctional officer to death in 2006 at a state prison in Jessup that has since closed.

If the jurors decide that Stephens — who is serving a sentence of life plus 15 years for a 1997 murder —should be put to death, he would be the first person to receive a capital sentence under Maryland's more restrictive death sentence law.

Earlier coverage from Maryland begins at the link.

From Philadelphia

Today's Philadelphia Inquirer reports, "Phila. courts increase pay for capital defense."  It's written by Joseph A. Slobodzian.

Moving to reduce a shortage of lawyers qualified and willing to take court appointments to defend the poor in death-penalty cases, the Philadelphia courts have dramatically increased lawyers' fees and temporarily suspended the work of a new committee that screens capital-case attorneys.

An order by Common Pleas Court Judge John W. Herron, administrative judge of the trial division, increases the flat rate paid to capital-case counsel from the current $2,000 to $10,000 for trial lawyers and the fee paid to penalty-phase cocounsel from $1,700 to $7,500.

At the same time, Herron suspended the work of a new screening committee for the rest of the year. Herron noted that the committee has approved only 12 Philadelphia defense lawyers after reviewing their applications.

Last year, an Inquirer report found that more than 125 capital trials in Pennsylvania - 69 from Philadelphia - were reversed or remanded by appeals courts because serious mistakes by defense lawyers deprived the accused of a fair trial.

Lawyers quoted in the story cited low pay for court-appointed lawyers as a major factor.

While not criticizing the so-called HAS (Homicide Appointment System) Committee, Herron wrote Monday that he had to respond to a growing backlog of homicide cases due to a lack of qualified lawyers for court appointments.

Earlier coverage of Philadelphia capital indigent defense issues begins at the link.

Alabama Roundup

Andrew Cohen posts, "Another Death Row Debacle: The Case Against Thomas Arthur," at the Atlantic.  Here's the beginning:

Another month, another man on death row, another excruciating case that illustrates just some of the ways in which America's death penalty regime is unconstitutionally broken. This time, the venue is Alabama. This time, the murder that generated the sentence took place 30 years ago. And this time, there is an execution date of March 29, 2012, for Thomas Arthur, a man who has always maintained his innocence. He also has the unwelcome distinction of being one of the few prisoners in the DNA-testing era to be this close to capital punishment after someone else confessed under oath to the crime.

Late last month, I profiled the wobbly capital conviction against Troy Noling in Ohio and there are remarkable similarities between it and the Arthur case. Both involve white defendants. Both include contentions of innocence and allegations of bad lawyering at trial. Both include a lack of physical evidence linking the defendants to the crime. Both include crucial witness testimony that borders the farcical. And both include state officials reluctant to permit sophisticated DNA testing that might definitively answer questions about whether the defendants committed the murders they will die for.

Arthur's attorneys are even willing to pay for that testing, the few thousand bucks it would be, and the testing could be completed by the execution date. It is here where prosecutors and judges lose me when they prioritize "finality" in capital punishment cases at the expense of "accuracy." It would cost Alabama nothing to let Arthur's lawyers do the testing. And it might solve a case that already has cost the state millions of dollars. Instead, Alabama wants to finally solve its Arthur problem by executing him. No matter how the new DNA test could come out, the state is more interested in defending its dubious conviction.

The Arthur case is also the topic of Andrew Rosenthal's New Yort Times blog post, "Is Alabama About to Execute an Innocent Man?"

Last Wednesday, Alabama scheduled the execution of Thomas Arthur for March 29. I object to the death penalty under all circumstances, but Mr. Arthur’s case is particularly troubling, because it’s possible that he’s innocent.

Mr. Arthur has been on death row since 1982 for the murder of Troy Wicker. He was not an upstanding citizen. At the time of the killing, Mr. Arthur was an inmate at the Decatur Work Release Center serving a sentence for a previous conviction (for second-degree murder). But his character shouldn’t distract us from the facts: No physical evidence linked him to the murder; no murder weapon was found; another man, Bobby Ray Gilbert, confessed to the crime under oath.

DNA testing of evidence in 2009 failed to place Mr. Gilbert at the scene, and a Jefferson County Circuit Court judge ruled that he had lied. This logic seems flimsy. Remember, there’s no DNA evidence proving that Mr. Arthur committed the crime, either.

Mr. Arthur has requested advanced DNA testing of a wig worn by the killer, which could help establish his innocence (or his guilt, for that matter). The Alabama authorities have so far opposed additional testing—despite the fact that Mr. Arthur’s counsel has offered to pay for it and that it could be completed before his execution date.

 Earlier coverage of the Tommy Arthur case begins at the link.

There is also other case news from Alabama, one involving the state's judicial override on death sentences and the other involving indigent defense costs.  First, "Attorney weighs new legal challenge in Henderson case," by Jim Mustian of the Ledger-Enquirer, via the Macon Telegraph.

More than four months after a Lee County jury recommended life in prison for Gregory Lance Henderson, the convicted cop killer’s fate remains in the hands of Circuit Court Judge Jacob A. Walker III.

The judge will decide whether to accept the jury’s 9-3 vote against capital punishment or override it and send the Columbus man to Alabama’s death row. But defense attorney Jeremy W. Armstrong of Phenix City has been exploring a fresh legal challenge to Henderson’s eligibility for execution that could change the equation in an emotional case that shook the East Alabama law enforcement community.

Henderson was found guilty in October of running over and killing Lee County deputy sheriff James W. Anderson during a September 2009 traffic stop in Smiths Station, Ala. His sentencing, initially set for Jan. 31, has been postponed twice, most recently because Armstrong has sought to determine whether Henderson is mentally retarded and therefore legally immune to capital punishment.

The development could delay the case indefinitely if additional testing is warranted. Walker has scheduled a hearing Wednesday to discuss a new sentencing date and Armstrong’s recent motion for continuance.

Coverage of Alabama's practice of judicial override begins at the link. The U.S. Supreme Court ruled in 2002 that the execution of those with mental retardation is unconstitutional; more on Atkins v. Virginia, via Oyez.  As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.  Related posts are in the mental retardation index.

"Alabama wants Amy Bishop trial judge to cancel order for payments to expert witnesses," is by Brian Lawson for the Huntsville Times.

Attorneys for the Alabama Comptroller's Office want the judge in the Amy Bishop capital murder case to vacate his orders for payments to defense expert witnesses and testing, according to a court filing today.

Bishop is set to go on trial March 19 on charges she killed three fellow University of Alabama in Huntsville biology faculty members and attempted to kill three other university employees on Feb. 12, 2010.

The trial date may be in some doubt as Bishop's court- appointed attorneys have asked Circuit Judge Alan Mann to delay the trial until the Alabama Court of Criminal Appeals rules on the state's refusal to accept Mann's orders to make payments for expert witnesses and related testing of Bishop by a neurologist.

And:

Alabama Comptroller David White argues in the filing that a new Alabama law governing payments to expert witnesses does not cover the Bishop case since it began before the law was passed. Previously, Alabama law did not include prior payments to expert witnesses before a case ended. The practice has been criticized by defense attorneys who argue it leaves them either paying for experts out of their own pockets, or being forced to try and find experts, often not as well-regarded in their fields, who are willing to wait months or years to be paid.

The most recent coverage from Alabama concerned the U.S. Supreme Court's ruling in Maples v. Thomas.

The Long-Delayed Phan Case in Georgia

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

"High court warns ‘clock is ticking' in Gwinnett death penalty case," by Steve Visser for the Atlanta Journal-Constitution.

The Georgia Supreme Court warned Monday that Gwinnett County is running out of time to try a man accused  of the execution-style killings of a toddler and his father over a gambling debt.

The high court declined  Khahn Dinh Phan's appeal that his death-penalty case be thrown out because he has not been brought to trial in nearly seven years, in part because of delays caused by the state's financially strained indigent defense system. But the court warned that Gwinnett County Superior Court needs to resolve Phan's case or risk that it will be dismissed if the delay becomes more egregious.

"We warn the clock is ticking," said the opinion by Chief Justice Carol Hunstein. Further delays caused by state budget problems could well tip the scales ...  in Phan’s favor.”

Hunstein wrote that the Phan case is an "object lesson in the perils" of underfunding the state's indigent fund, which has resulted in Phan being in the Gwinnett County jail since his arrest in March 2005. He is accused of the the Dec. 29, 2004  shootings of a Vietnamese couple and their 2-year-old son in their Lilburn home.

And:

“We emphasize that our determination that the trial court acted within its discretion should in no way be construed as an endorsement of the system that has led us down this tortuous path thus far,” the opinion said. “The interests of no one --  neither prosecutors nor defendants, victims nor taxpayers -- are served by the uncertainty and delay attending to a chronically underfunded indigent defense system.”

"Top Georgia court declines to drop murder charge against man awaiting trial since 2005," is the AP filing by Greg Bluestein.  It's via the Republic.

The Georgia Supreme Court refused to dismiss murder charges against an accused killer who claimed his right to a speedy trial was violated because he has spent nearly seven years awaiting a trial. But the opinion released Monday said the case underscores the dangers of underfunding the criminal justice system.

The unanimous ruling found that both the government and Khahn Dinh Phan share the blame for the delays in his trial for the killings of a Vietnamese man and his 2-year-old son in 2004. He was arrested in March 2005 and the setbacks in his case have made it a focal point in the funding debate over the state's oft-maligned public defender system.

In Monday's opinion, Chief Justice Carol Hunstein called the case an "object lesson in the perils of such underfunding" and used the decision to urge Georgia legislators to address the consequences of a financially-strained public defender system.

"The fact that the dismissal of murder charges has had to be legitimately considered for reasons so far removed from the accused's guilt or innocence underscores the stakes involved," she wrote. "We can only hope that those within the branches of government empowered to remedy these institutional problems will make it a priority to do so."

She made clear that the opinion should not be seen as endorsement of the "system that has led us down this tortuous path thus far" and warned that further delays caused by state budget problems or policy decisions could tip the scales of the case in Phan's favor.

Earlier coverage of the Phan case and Georgia indigent defense issues begins at the link.

The Cost of Lethal Injection Drugs

Today's Austin American-Statesman carries the editorial, "Add cost of drugs to death penalty debate."

Add to the list of topics for public discussion the high cost of dying.

The American-Statesman's Mike Ward reported last week that the cost of chemicals used to execute condemned inmates has jumped from $83.35 to $1,286.86 each.

And:

Prison officials are avoiding questions about most aspects carrying out executions, citing the fear of driving up costs and impeding their drug supply.

Prison authorities want Attorney General Greg Abbott to allow them to keep most information about the execution drugs — where they come from and how much they cost — secret.

An informed discussion is vital and not knowing about the drugs and their costs works against that. Texans have a right to know how their money is being spent.

Abbott should open up those books, not close them.

"Death penalty: Cost of execution drugs -- and executions -- rises," is the title of Molly Hennessy-Fiske's Los Angeles Times report.  It's also available via the Chicago Tribune.

Texas prison officials say they have enough of the drug to carry out the five executions scheduled this year, but they declined to comment about how much of the drug they have or what they plan to do if supplies run low.

Prison officials are seeking a ruling from Texas Atty. Gen. Greg Abbott before releasing execution drug records, Clark said.

“We're not releasing information on our supplier, the amount we paid for specific drugs and the amount of drugs on hand,” Clark said. “The agency is seeking an AG's opinion to keep the information confidential.”

And:

The price increase in execution drugs is also being felt in Georgia, Oklahoma, Ohio, Mississippi and South Carolina.

Oregon purchased $18,000 worth of the drugs last year, but the execution for which they were planned was ultimately called off by the governor -- who said he would approve no others. Corrections officials in other states had hoped they might be able to buy some of the leftover pentobarbital, but Oregon officials said last month that they had returned the drug to a wholesaler.

The execution drug shortage was highlighted earlier this month in a report in the Guardian about an investigation by the London-based human rights group Reprieve. Maya Foa, with the group’s Stop Lethal Injection Project, estimated the remaining stocks of pentobarbital in Georgia and Texas based on public records.

Foa calculated that Texas had 27 vials of pentobarbital left. The state needs four vials per execution -- two to inject the prisoner, two as backup -- meaning the state has enough for at least six executions, she estimated.

She estimated that Georgia had 17 vials of pentobarbital, enough for four executions.

The AP report, "New drug sparks sharp increase in execution costs," by Michael Graczyk is via Lubbock Avalanche-Journal.

The switch to a substitute drug for executions has driven up the cost of capital punishment in Texas.

A year ago, the European supplier of sodium thiopental, bowing to pressure from death penalty opponents, stopped making it. When no other vendor could be found, the drug was replaced by pentobarbital as one of the three used in the lethal injection process.

With sodium thiopental, Texas Department of Criminal Justice officials said the cost of the lethal injection cocktail was $83.35. It is now $1286.86, with the higher cost primarily due to pentobarbital, officials said. The other drugs are pancuronium bromide and potassium chloride.

A dozen executions have been conducted with the new lethal cocktail in Texas and at least five are scheduled in the coming months.

According to the new numbers, Texas has spent more than $15,400 — versus $1,000 — to carry out those 12 executions.

Prison officials have declined to identify the state’s drug supplier and the specific amount for each drug and are awaiting an opinion from the Texas attorney general on whether they can keep that information confidential.

Earlier coverage of the cost and availability of of Texas execution drugs begins at the link.  Related posts are in the lethal injection and TDCJ indexes.

Cost of Executions Skyrocketing in Texas, Other States

That's the title of Mike Ward's report in today's Austin American-Statesman.  It's subtitled, "Increased costs due to new execution drug."

As Texas prison officials face the likelihood that one of the three drugs used in the nation's busiest execution chamber might no longer be available, they are facing another reality: The cost of executions is skyrocketing as well.

A year ago, it cost the Texas Department of Criminal Justice $83.35 to carry out an execution. But since the state was forced to switch from one powerful sedative to another, the cost is now $1,286.86.

That means that the 12 executions carried out so far with the new drug have cost taxpayers more than $15,400, instead of $1,000.

"The cost of all three drugs has gone up, but the overall increase is because of pentobarbital," Jason Clark, a spokesman for the corrections agency, said Thursday.

Nearly a year ago, in March, the state replaced sodium thiopental with pentobarbital in its three-drug execution cocktail after the maker of sodium thiopental stopped producing it amid international protests over its use in executions in the United States.

Now, the state faces the same dilemma again, after the manufacturer of pentobarbital said it will seek to block its use for executions.

Although Texas prison officials say they have enough of the drug to carry out the five executions scheduled so far this year, they are not discussing any details concerning their suppliers or exactly how much of the drug they have on hand — or even what they plan to do next.

And:

Texas officials are increasingly reluctant to publicly discuss most aspects of the execution process for fear of driving up the costs further or impairing their drug supply.

"We can't comment on that," Clark said several times when asked for more details, even those that a year ago were public.

Texas prison officials are seeking a ruling from Texas Attorney General Greg Abbott to allow them to keep secret many details about execution drugs, where they come from, even how much they cost.

Corrections officials in Texas and other states are saying little about what other drug they might switch to, if the supply of pentobarbital dries up. But propofol is frequently mentioned in private conversations.

That is the powerful sedative that was blamed in the death of entertainer Michael Jackson in June 2009.

"Lethal injection drugs harder and harder to find," is Rina Palta's report for California public radio station KALW-TM.

For the second time in as many years, a drug commonly used in executions will become unavailable.

Word’s come out that pentobarbital, a barbituate several states use in lethal injections, will be much harder to find shortly, as the sole FDA-approved manufacturer of the drug is refusing to sell it to states that use it for executions. Pentobarbital, incidentally, became widely adopted just last year as a replacement for sodium thiopental, which was recently discontinued by its US maker.

And:

States using pentobarbital in executions include Oklahoma, Florida, Ohio, and Texas. California, meanwhile, has a stockpile of  sodium thiopental, which expires in 2014. California obtained its supply from a company in the United Kingdom. European countries have since prohibited companies from selling the drug to US states seeking to use it to carry out the death penalty.

Earlier coverage of Texas lethal injection issues begins at the link; news from Oklahoma is also available.

Related posts are in the lethal injection, international, and TDCJ indexes.

The Lerner Report on Philadelphia Capital Indigent Defense

Today's Philadelphia Inquirer reports, "Report calls pay for lawyers in Philly death-penalty cases 'grossly inadequate'."  It's by Robert Moran.  Here's an extended excerpt:

A report ordered by the state Supreme Court concludes that the pay for court-appointed lawyers in Philadelphia death-penalty cases is "grossly inadequate" and "unacceptably increases the risk of ineffective assistance of counsel."

The report, made public Tuesday, was written by Common Pleas Court Judge Benjamin Lerner, whom the high court ordered to assess the facts and legal issues on the subject and report back. It is now up to the Supreme Court to decide if it will act, and when.

Last year, The Inquirer reported that scores of Philadelphia death-penalty cases had been reversed by appellate courts or sent back for new hearings because of serious errors by defense attorneys. Low pay is a key reason, critics say.

In Philadelphia, fewer than 30 of 11,000 lawyers are willing to take capital-case appointments for indigent clients and also meet minimum state requirements for doing so.

And Philadelphia pays less than any other county in Pennsylvania, according to defense lawyers who petitioned the Supreme Court to increase the fees or halt death-penalty cases until that happens. The high court instead ruled that more information was needed and gave Lerner the assignment.

Lerner, who oversees homicide cases in Philadelphia, was told to determine if the pay for court-appointed lawyers was "so inadequate that it can be presumed that court-appointed counsel are constitutionally ineffective."

He also was asked if the problem needed to be dealt with "in a general, global sense," or case-by-case.

Lerner concluded that each case must be dealt with individually.

"However," he wrote, "the compensation of court-appointed capital defense lawyers in Philadelphia is grossly inadequate, both as to the dollar amount of the compensation and as to the compensation schedule provided by the present fee system.

". . . The existing compensation system unacceptably increases the risk of ineffective assistance of counsel in individual cases and is primarily responsible for the First Judicial District's growing inability to attract a sufficient number of qualified attorneys willing to accept court appointments in capital cases."

"Free lawyers defended," is the brief item in the Phialdelphia Daily News.

A study commissioned by the Pennsylvania Supreme Court has found that although the fees that the state pays court-appointed attorneys in death-penalty cases are "grossly inadequate," those fees do not mean that all such attorneys are "constitutionally ineffective."

The report, filed yesterday and written by Common Pleas Judge Benjamin Lerner, states that the fee system - "a disaster waiting to happen" - could increase the risk of ineffective legal counsel and is primarily responsible for the low number of attorneys willing to accept court appointments in capital cases.

Among the report's recommendations are that a new fee system be created that pays capital-case attorneys a rate of $90 per hour for preparation and court time. Currently, lead attorneys are paid a $2,000 flat preparation fee plus $400 for each full trial day.

Judge Lerner's Report is available in Adobe .pdf format.  Thanks to Jeff Gamso for securing the Lerner Report and Recommendations.

Earlier coverage of the Philadelphia capital indigent defense system begins at the link.  Related posts are in the indigent defense index.

Oklahoma Also Running Low on Execution Drugs

The Oklahoman reports, "Oklahoma is running low on supply of drug used in lethal injections."  It's by Andrew Knittle.

The state Corrections Department is running low on a $1,800-per-dose drug used to execute Oklahoma inmates, and there may not be an acceptable replacement available on the market.

Department spokesman Jerry Massie said the U.S. firm who makes pentobarbital — a fast-acting barbiturate originally designed to sedate animals — has stopped selling the drug to institutions that perform executions.

Pentobarbital is the first of three drugs administered to a condemned prisoner, causing unconsciousness.

It's followed by vecuronium bromide, which stops respiration. Potassium chloride, which stops the heart, is the final drug injected.

In December 2010, Oklahoma became the first state to use pentobarbital during an execution of a human being.

And:

Since then, Oklahoma has executed three prisoners using pentobarbital. The last one was in Gary Roland Welch in January. Welch was convicted of first-degree murder in 1996.

Massie said the state has three doses of pentobarbital left.

“We bought more last year, ahead of any executions because we thought this might happen,” he said. “In the past, our practice had been to buy enough for the year, though.”

The article notes that Oklahoma state law specifies the use of the electric chair and firing squad as alternative methods of execution if lethal injection is not available.

"Prisons chief says Okla. needs execution options," is the AP filing, via the Wichita Falls Times Record News.

Oklahoma's top prison official says the state needs to plan for the future of executions as it faces a shortage of a lethal injection drug that is difficult to obtain.

Corrections Director Justin Jones said Monday the state has four doses left of pentobarbital, which manufacturers have objected to selling for use in executions. It's unclear what the state will do if it exhausts its supply.

It was reported last week that Texas is facing a shortage of pentobarbital.

Florida's Execution Costs Re-Kindle Death Penalty Debate

That's the title of Eric Glasser's report at WTSP-TV.

It took more than 30 years for Robert Waterhouse to even have a date with death, sitting on death row as taxpayers spent millions on appeals, hearings, and delays.

It's just one reason why Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, believes life without parole is a better, less expensive alternative.

He says it's a policy that would save Florida an estimated $51 million per year to spend on victim services programs and resources to solve some of Florida's 12,000 homicide cold cases.

"Those families have gotten no justice," said Elliott. "Those killers have literally gotten away with murder."

He also points out that Florida leads the nation in the number of death row inmates mistakenly convicted.

"In Florida, we've had more than 23 people exonerated off our death row," he said.

Last night's execution in Florida was the state's first in 2012; its 72nd execution since 1979.  To date, there have been four executions this year; 1,281 post-Furman executions since 1977.

Attorney Fees & the Exonerated

AP reports, "Attorney: Lawyer earned fees paid by exonerees," by Betsy Blaney.  It's via the Austin American-Statesman.  Here's an extended excerpt:

An attorney credited for pushing a law that made Texas the most generous state in the nation in compensating the wrongly convicted earned his fees by fighting to get two clients as much money as possible after they were exonerated by DNA, his lawyer said Monday.

Opening statements were held in the State Bar of Texas' lawsuit against Kevin Glasheen. The bar association has accused Glasheen of charging the men unreasonable fees for obtaining compensation, but his lawyer said the pair received more money than they would have under the old compensation system.

"These two clients (of Glasheen's) are millions of dollars better off because of Kevin Glasheen fighting for them," Jim Hund said. "This was not an easy fight. It was a knock-down, drag-out fight."

Glasheen received millions of dollars in compensation for 12 men cleared after DNA evidence showed they were innocent of charges that put some in prison for more than two decades. Two of the men, Steven Phillips and Patrick Waller, filed complaints with the state bar, saying Glasheen's 25 percent contingency fee was too much. The state bar then sued Glasheen, saying his fees were illegal and unconscionable and constituted professional misconduct. Lawyers charging contingency fees usually only get paid if their clients win and receive compensation.

But Phillips and Waller were guaranteed millions under a 2009 law — pushed by Glasheen — that upped compensation for the wrongly convicted from $50,000 to $80,000 for every year of confinement and provided an annuity for lifetime income. Phillips' annuity was set at $3.7 million, or $11,624 per month, and Waller's was $2.8 million, or $6,424 per month.

State Bar of Texas attorney Paul Homberg III said in his opening remarks that the problem was that Glasheen got 25 percent not only on the lump sum each man received but also on their annuities. He called that "outrageous."

"We're not here to say Kevin Glasheen is a bad person or a bad lawyer," Homberg said. "He's an able lawyer. But, judge, with millions of dollars on the table, Mr. Glasheen had some blinders on."

If the court determines Glasheen committed misconduct, he could face punishments ranging from a public reprimand to disbarment.

The bar's lawsuit also accuses Glasheen of fee sharing, which has been illegal in Texas since 2005.

Glasheen collected about $5 million in fees from clients, keeping $3.5 million for his firm and paying the rest to Jeff Blackburn, the chief counsel for the Innocence Project of Texas. Glasheen said in a statement emailed last week that Blackburn helped on the cases because of his expertise and experience in wrongful convictions.

Earlier coverage of Glasheen fee dispute begins at the link.  Related posts are in the wrongful incarceration index.

More From Montgomery County

Today's Houston Chronicle reports, "Montgomery County tries team approach to help mentally ill."  It's by Renée C. Lee.  Here's an extended excerpt:

Montgomery County has begun providing mentally ill defendants with a professional team to help them with legal and personal needs in an effort to keep them out of jail.

The county's Managed Assigned Counseling Mental Health program, launched last month, is the second in the state. Lubbock County started its program, which handles all indigent defendants, a few weeks earlier.

State lawmakers authorized the new model of indigent defense last year. It enables judges to remove themselves from assigning and paying attorneys to represent the poor.

Instead, managed assigned counseling pairs defendants with a specially trained attorney, a case manager coordinator and a case worker. Together, they walk defendants through the criminal process and assist them with obtaining community services, such as counseling, housing and other services.

The team continues to work with defendants for up to six months after their case ends.

"Our goal is to keep them from reoffending and to give them whatever skills or assistance they need," said state District Judge Cara Wood, who helped develop the program.

In fast-growing Montgomery County, courts and attorneys have little time to spend on mental health cases, Wood said. The program gives the county a way to ensure the mentally ill are treated fairly.

The county received a $487,000 grant from the Texas Indigent Defense Commission and matching funds from Commissioners Court to develop the program. The grant also will fund a new mental health court docket to monitor defendants who are on probation. Wood and Montgomery County Court at Law Judge Mary Ann Turner will oversee the docket.

A managing attorney, Sara Forlano, oversees legal education requirements, court appearances and performance evaluations for the attorneys who participate.

Earlier coverage of the Montgomery County program is at the link.  Related posts are in the mental illness index.

California Roundup - Victim's Family Speaks Out

"California's death penalty law: It simply does not work," is the title of Ron Briggs' OpEd in the Sunday edition of the Los Angeles Times.  It's subtitled, "We believed the Briggs initiative — the death penalty measure we wrote in 1977 — would bring greater justice. We were wrong."  Here's the beginning of this must-read:

In 1977, my dad, former state Sen. John Briggs, my brother-in-law and I got together to discuss California's death penalty. We agreed it was ineffective and decided a ballot initiative was needed to expand the number of murder categories eligible for capital punishment. We felt such changes would give prosecutors better tools for meting out just punishments, and that a broadened statute would serve as a warning to all California evildoers that the state would deliver swift and final justice.

We thought we were creating a national model for capital punishment.

On a shoestring budget we collected more than 1 million signatures to put the proposition on the ballot. Half the signatures came via first-class business reply mail, which my wife, Kelly, and I manually processed. We didn't have laptops or self-adhesive stamps then, although we did have a bomb scanner, which we'd been trained to use by the FBI after they discovered a terrorist plot to kill my dad.

On Nov. 7, 1978, California voters passed the Briggs initiative on the death penalty.

Back then, my future brother-in-law was Dad's district chief of staff and I proudly served as my father's personal aide. Today Dad is retired, my brother-in-law is a California Superior Court judge and I am in my second term as a county supervisor representing rural District IV in the county of El Dorado, east of Sacramento.

Recently, the three of us sat together under a rose trellis in the quiet cool of morning to talk politics. Each of us remains a staunch Republican conservative, but our perspectives on the death penalty have changed. We'd thought we would bring California savings and safety in dealing with convicted murderers. Instead, we contributed to a nightmarish system that coddles murderers and enriches lawyers. Our initiative was intended to bring about greater justice for murder victims. Never did we envision a multibillion-dollar industry that packs murderers onto death row for decades of extremely expensive incarceration. We thought we would empty death row, not triple its population.

Each of us, independently, has concluded that the death penalty isn't working for California.

I want to also note several California items from last week.  The National Catholic Reporter has a profile of Jeanne Woodford, "As warden, she oversaw executions; now she fights to stop them," written by Jacqueline Gilvard Landry.

The woman who oversaw four executions by lethal injection is fighting to make sure it never happens again.

Jeanne Woodford served as warden of San Quentin State Prison in California from 1999 through 2004. Now she is the chief law enforcement spokesperson for SAFE California, a ballot initiative that would replace the state’s death penalty with life in prison without parole, require inmates to pay into a victims’ compensation fund, and allocate $100 million over three years to solving crime.

Capital punishment “isn’t effective, it’s costly, it isn’t efficient,” Woodford said. Evidence shows that the death penalty costs more than housing prisoners for life, steals resources from solving other crimes, and hurts victims’ families who wait for executions that may never happen, she explained.

“I think there’s something about [the death penalty] to hate by everybody, whether conservative or liberal or somewhere in between,” Woodford said.

KTXL-TV posts, "The High Cost of Death," by Sabrina Rodriguez.

In prison, time is money and death row is the most expensive.

California has had a working death penalty since 1978, but you wouldn’t know it.

There are currently 722 inmates on death row, but the number actually about to be executed is zero.

"The Fate of California's Longest Standing Death Row Inmate Could Change," is by Christina Lusby for KSEE-TV News.

The fate of California's longest standing death row inmate, Douglas Ray Stankewitz, could change. Stankewitz was convicted of murder in 1978.

Stankewitz’s case was the first to be tried after the death penalty was reinstated back in 1978 and the jury handed it to him.

Monday, nearly 30 years after the crime, Stankewitz is asking for a reversal of the decision to be upheld. Now, he may be no closer to death than he was when he was first convicted.

Earlier coverage from California begins at the link.

Texas Scrambling for Treatment Space for Mentally Ill Defendants

"Texas Officials Seeking Room for Mentally Ill Inmates," is the title of Brandi Grissom's report for the Texas Tribune.  It's a must-read for those following the links between mental health and the criminal justice system.

State officials are trying to figure out what to do with about 400 mentally incompetent local jail inmates across the state ahead of a state district judge’s expected ruling to require state hospitals to find beds to treat them. 

“It boils down to space,” said Carrie Williams, a spokeswoman for the Texas Department of State Health Services. 

Judge Orlinda Naranjo of Austin is poised to finalize a ruling this week that will require jails to send mentally incompetent inmates for treatment at a state hospital within 21 days of the time they are ordered committed.

She said in a letter last week outlining her expected ruling that the current average wait of six months for a spot at a state mental hospital violates the constitutional rights of inmates who have been found incompetent to stand trial and are awaiting psychological assessment and treatment. To comply with her ruling, the cash-strapped Department of State Health Services, which runs the hospitals, will have to find the room and the resources for all those inmates. 

“These economic decisions made by the state do not outweigh the incompetent detainees’ liberty interests,” Naranjo wrote.

It's important to note that these are individuals who have not been convicted of a crime.  They have been charged with a crime, but found to be incomeptent to assist in their own defense and stand trial.  The defendants are being detained for treatment in order be tried. 

Earlier coverage the shortage of treatment space for mentally ill defendants begins at the link.

"Montgomery County launches two new mental health programs for incarcerated," is by the editor of the Paper, based in Montgomery.

This week, Montgomery County launches two new programs to address the growing number of defendants with mental health issues incarcerated in the county jail.

The county will be only the second in Texas to have a managed assigned counsel program for indigent defendants. Montgomery County’s program will focus on representing defendants with mental health issues. The program will be led by Sara Forlano, a former assistant county attorney for Montgomery County, who recently left private practice to start up the new program. The County will also have a mental health court docket that closely monitors probationers with serious mental illness. The programs were created through a $487,000 grant from the Texas Indigent Defense Commission, and supported by matching funds from Montgomery County Commissioners Court.

“The goal of this program is to lower the rate of recidivism,” said Judge Cara Wood of the 284th District Court. “There is a high rate of recidivism among this population.”

The programs also have the support of the Montgomery County District Attorney’s Office, the Montgomery County Sheriff’s Office and Tri-County Services and other agencies and departments who have direct contact with the indigent mentally ill defendants.

“Finally, we are seeing something to help folks with mental health issues,” said Montgomery County Sheriff Tommy Gage. “One of the worse things is to see someone locked up in jail and it’s the last place they need to be. Through this grant, we can get help for the people that need it.”

The program will identify indigent adult defendants at the Montgomery County Jail who have been diagnosed with bipolar disorder, major depression, or schizophrenia and refer those cases to private attorneys who have been trained to deal with clients with mental health issues.

Earlier coverage of problems dealing with mentally ill defendants begins at the link.

Earlier coverage of the Montgomery County plan begins at the link.

Travis County was the first jurisdiction in the nation to have a specialized public defender office to deal with mentally ill defendants.  Bexar County has a special mental health court for dealing with mentally ill defendants.

Related posts are in the mental illness index.

More Calls for Kentucky Moratorium

Today's Lexington Herald-Leader carries the OpEd, "Suspend state's death penalty lottery."  It's by Ernie Lewis, the former Kentucky public advocate, now with the Kentucky Association of Criminal Defense Lawyers.

When I became Kentucky's public advocate in 1996, one of the first things I did was to call on policy makers to follow the American Bar Association's call for a moratorium on executions. I'd been a public defender for 19 years and, after handling numerous capital cases, had seen firsthand that the death penalty was broken beyond repair.

In 12 years as public advocate, everything I saw reinforced that view. I saw the death penalty was being used against the poor, people with mental retardation and mental illness, as well as people of color. I saw that many lawyers defending capital defendants were not qualified and that the death penalty was used in some counties but not in others.

The problems with the death penalty are once again staring us in the face. A group of prominent Kentuckians, including two former Supreme Court justices, has spent the last two years conducting an in-depth study of how the death penalty works in our state.

What they found has to undermine significantly any confidence we have in this system of life and death.

And:

The Kentucky assessment team recommended "a temporary suspension of executions until the issues identified in this Report have been addressed and rectified."

Gov. Steve Beshear, Attorney General Jack Conway, and Kentucky legislators cannot ignore this report and continue down the road toward another execution. A moratorium should be declared immediately.

AP's Brett Barrouquere files, "Age catching up with Ky. death row population, state's prison medical bills rise."  It's via the Republic.  Here's the beginning of the report:

Randy Haight wakes every morning to sore hands and a creaking body. The 59-year-old blames the pain on arthritis — something that he describes as rampant at his home for the last 17 years — Kentucky's death row.

"It gets a lot of these guys," Haight told The Associated Press in an interview at the prison in Eddyville.

Other than the recreation time, Haight and the 33 other men housed in the Kentucky State Penitentiary's unit for condemned inmates spend their days in cells that are 6 1/2-feet wide, 13-feet long, and 12-feet high. It's a forced lifestyle that, inmates and experts say, has accelerated age-related health problems for the condemned population — causing hands to ache, knees to pop and hips to degenerate.

Kentucky's 35 death row inmates (including one woman held in a different prison) are an average age of just more than 50 years old — an average of 14 years older than the 23,000 inmates in the Kentucky prison system. Condemned inmates have waited more than 16 years for execution, three years longer than the average prison sentence in the state, and 15 have been on death row for two decades or more.

All that time has been spent living a sedentary life in close quarters in a setting that doesn't change much.

"They don't get any kind of stimulus," said Ronald Aday, a sociology professor at Middle Tennessee State University who has studied death row inmates. "They're aging in place with very little interaction."

Some states are using hospices or medical parole to tackle the aging inmate population. Across the country, Human Rights Watch found, 8 percent of the prison population in 2010 was 55 or older, compared to 3 percent in 1995. That's not an option for inmate sentenced to die in Kentucky, so the state is left housing them and paying increasing medical expenses.

While the state doesn't keep separate statistics for the death row population, medical expenses for the Department of Corrections have risen each year since 2008, from $49.1 million that year to $54.8 million in fiscal year 2011. Corrections Department spokeswoman Lisa Lamb said death row inmates get the same level of care as the other 23,000 inmates in state custody — regular access to doctors and medications when necessary.

Earlier coverage from Kentucky begins at the link.

Texas Criminal Justice Roundup

Yesterday's Austin American-Statesman carried two news reports of note.  "Judge: Mentally incompetent state inmates being kept in jail too long," is by Andrea Ball.  Here's an extended excerpt:

Texas routinely violates the constitutional rights of mentally incompetent prisoners by forcing them to stay in jail for up to six months before moving them to psychiatric hospitals, a Travis County judge ruled this week.

State District Judge Orlinda Naranjo ruled that the Department of State Health Services must start moving "forensic commitments" — people accused of crimes who have been ruled incompetent to stand trial because of mental illness — to state psychiatric hospitals within 21 days of receiving a judge's order. Over the past two years , the average prisoner spent six months in jail waiting for a hospital bed, the ruling states.

"Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time violates the incompetent detainees' due process rights as guaranteed by the Texas Constitution," Naranjo wrote.

A final order that would specifically lay out how the health department should proceed has not been issued, said Tom Kelley, spokesman for the attorney general's office. That agency has not decided whether it will appeal the case. Right now, there is no timetable for when the changes might be instituted.

"Getting people into treatment as quickly as possible is extremely important to us," said Carrie Williams, a spokeswoman for the Department of State Health Services. "The sooner the better. We're always working toward that, and we will explore how we would logistically comply with a final order."

The ruling, issued Monday, stems from a 2007 lawsuit filed by Disability Rights Texas, a federally funded organization that advocates for people with disabilities, including mental illness. In that lawsuit, the group claimed that the health department regularly refuses to take forensic commitments because the hospitals do not have space for them. Once at such facilities, inmates receive psychiatric drugs and other treatments to restore their mental ability to face their criminal charges.

But the delay in getting inmates into hospitals clogs local jails, slows the legal system and violates inmates' rights to due process, said Beth Mitchell, a lawyer with Disability Rights Texas. On Wednesday, the Travis County Sheriff's Office had 18 inmates waiting for a bed at a psychiatric facility.

Related posts are in the mental illness index.

Mike Ward writes, "New study: Texas spends 23 percent more on prisons."

Texas taxpayers pay an average 23 percent more for state prisons than the state’s annual corrections budget reflects, a first-of-a-kind national study shows.

The new report by the Vera Institute of Justice, a New York-based research organization that tracks criminal justice trends, calculates the state’s total costs for its adult corrections and prison programs at $3.3 billion — almost $783 million higher than the $2.5 billion annual budget for the Texas Department of Criminal Justice.

Usually, corrections spending is tracked by comparing the budgets for prison and parole agencies. The Vera Institute study includes additional costs such as contributions to pension and benefit programs and capital costs.

Nationally, corrections spending is the second fastest-growing budget item for states, behind Medicaid. In Texas, the prison system’s budget was trimmed by about 10 percent last year thanks to cuts that were mandated because of a projected revenue shortfall.

The study found that among the 40 states that responded to a survey, the total fiscal year 2010 taxpayer cost of prisons was $38.8 billion, $5.4 billion more than in state corrections budgets for that year.

That is important because as state budgets tighten up, lawmakers in Texas and elsewhere have begun looking at better ways to ensure public safety and provide less-expensive ways of rehabilitating and correcting low-level, non-violent offenders offenders.

With another tight state budget expected in 2013, the costs of state corrections programs — especially the mushrooming cost of providing health care to an aging population of convicts — are expected to be a key topic for debate when the Legislature reconvenes in a year. The cost of prison health care is among the fastest-growing items in the state budget, after Medicaid.

The report, The Price of Prisons: What Incarceration Costs Taxpayers by the Vera Institute of Justice is available in Adobe .pdf format

Arizona's Dirty Secret: Executions

That's the title of E.J. Montini's column in today's Arizona Republic.

The Arizona Republic's Michael Kiefer reported serious problems with how the DOC got the drugs used in executions. Also, proper background checks were not done on members of the execution team.

And the team member who was administering IVs was a DOC employee who got his training in the military, although he wasn't a licensed medical professional and he hadn't been in the service since 1996.

Meantime, the doctor who served as the team's leader (a doctor must be present at executions) called the court experience "very unpleasant" and, according to court records, said, "It's not really anything that I care to go through again."

We don't know if that means he quit. The Department of Corrections isn't saying, although there are executions scheduled for the coming months.

There is a lot of secrecy surrounding executions in Arizona and, again, I can't imagine why.

First, there is a state law that protects the privacy of the execution team. It reads in part: "The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure."

Why? Executions are legal. The public approves of them. Why should we not know who performs what Arizona deems to be a public service?

Besides, the law also declares that any professional who participates in an execution and happens to be licensed by a board -- for example, a physician -- cannot have his or her license suspended or revoked.

So, why not know who they are? Particularly since we are said to pay the leader of our "execution team" about $6,000 a day, with the average execution requiring two days of practice and one day to carry out the death sentence.

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

Washington State Repeal Legislation

"Lawmakers consider bill to abolish death penalty," the AP report by Rachel La Corte, via the Seattle Post-Intelligencer.

Lawmakers are considering a measure to abolish the death penalty, an effort that has failed in Washington state in recent years but which supporters hope will gain traction after other states have recently either issued moratoriums or outlawed it completely.

The bill, sponsored by Democratic Sen. Debbie Regala, of Tacoma, is set to receive a public hearing Wednesday before the Senate Judiciary Committee.

"We can keep the public safe with putting people in prison for the rest of their life, as opposed to the costly expense of executing them," she said.

Regala also argued that the death penalty doesn't deter someone from committing a murder. She cites her own personal experience with the 1980 murder of her brother-in-law. His killer was never caught. Even if the killer was charged, Regala said she wouldn't have wanted the assailant to face death.

"It doesn't do anything to heal your grief," she said. "It doesn't bring the victim back."

Fiscal documents from a similar bill last year showed that, not counting incarceration costs, a death penalty case runs about $1.2 million in state and local costs, compared with $89,000 for a life-without-parole case.

Lawmakers are in the midst of a 60-day legislative session where they are tasked with patching a projected $1 billion dollar shortfall.

"It's always important and valuable for us to look at public policy and see if it's actually getting us the results that we want," Regala said. "When you're facing an economic crisis, you add an extra lens."

Democratic Gov. Chris Gregoire has not taken a position on the measure, said her spokeswoman, Karina Shagren.

The Seattle Times reports, "Some state lawmakers want to abolish the death penalty, although their proposal faces strong opposition."  It's written by Jordan Schrader.

Add another controversial social issue to the Legislature's growing agenda: Abolishing the death penalty.

Supporters of that cause will convene in Olympia Wednesday to rally behind state Sen. Debbie Regala, D-Tacoma, and other lawmakers trying to end capital punishment in Washington.

Regala knows what it's like to want justice for a violent crime. The Tacoma Democrat said her brother-in-law was killed in 1980 and his body dumped in a Seattle park. The killer was never found, she said.

"It's still painful and hard for me to talk about because the hurt never goes away," Regala said, "but executing that person doesn't solve that problem for me."

Her proposal's prospects seem dim this year, especially in a key House committee. Rep. Steve Kirby, D-Tacoma, says he will withhold his vote, effectively blocking it unless his fellow Democrats can persuade a Republican to join them.

And:

"De facto right now, we don't have a death penalty in the state of Washington," said Sen. Mike Carrell, R-Lakewood.

Carrell said capital punishment is little more than a "bargaining chip" for prosecutors to use to force plea deals. But he thinks it's crucial for prosecutors to have that threat, which was used, for example, to force Green River killer Gary Ridgway to reveal the locations of some of his victims' bodies. Ridgway is serving a life sentence.

The legislation is Senate Bill 6283 and House Bill 2468.

Related posts are in the abolition and state legislation indexes.