The StandDown Texas Project

Radley Balko on America's 2% Death Penalty

"U.S. Counties Killing The Most People Are Good At Getting Death Penalty, Not So Good At Justice," is by Radley Balko at Huffington Post.  Here's the beginning:

Just 2 percent of counties in America are responsible for more than half the nation's executions, and those same counties have been responsible for a disproportionate share of high-profile prosecutorial misconduct and exonerations following wrongful convictions.

In a report released last month, the Death Penalty Information Center found that 2 percent of counties, as well as being responsible for a majority of executions, can also claim credit for 56 percent of the current death row population. What's more, just 15 percent of U.S. counties account for all of the executions since 1976, according to the DPIC.

There are lots of different ways to think about these figures. And my Huffington Post colleagues Katy Hall and Jan Diehm have broken them down with some informative graphics. Since only 32 states have the death penalty, perhaps it shouldn't be terribly surprising that such a small percentage of counties account for such a large portion of executions, particularly if most of them are counties with large populations. (And that seems to be the case, although these counties aren't all necessarily the largest in their respective states.) At the very least, it is more evidence that the death penalty is applied inconsistently.

But what, if anything, do these numbers say about justice and fairness in these counties that are populating the country's cells on death row?

Earlier coverage of the Death Penalty Information Center's latest report is at the link.

New Hampshire Roundup - Commentary & Analysis

The Concord Monitor publishes an editorial, "It’s time to repeal the death penalty."

It is to the significant credit of the prosecutors in the capital murder case against Michael Addison that their arguments withstood numerous strong arguments from defense attorneys before the New Hampshire Supreme Court. It is to the significant credit of the lower court judge that the process was deemed fair.

But it is to the extreme detriment of New Hampshire as a whole that Addison is now one step closer to death. This week’s ruling should strengthen the resolve of those working to overturn the state’s death penalty statute, to keep New Hampshire government from ever again playing executioner in our name.

The Monitor also publishes an OpEd, "Violence in any form is never the answer," by Rev. Jonathan Hopkins.  He's president of the New Hampshire Council of Churches.

On Nov. 24, Christ the King Sunday, there will be a preach-in supported by Bishop Peter Anthony Libasci of the Roman Catholic diocese, Episcopal Bishop Rob Hirschfeld, Bishop James Hazelwood (my bishop) of the New England Synod of the Evangelical Lutheran Church in America and Rev. Gary Schulte, conference ministry of the United Church of Christ.

On that day we will talk about the spiritual issues involved when addressing the death penalty – how the use of retaliatory violence only continues the cycle. The need for redemption, forgiveness, healing, compassion and reconciliation are all spiritual truths that should help us to come to conclusions about the death penalty. In 2014 we have a chance in New Hampshire to be the 19th state to abolish the death penalty. We have a chance to do away with an expensive, noneffective, nonspiritual way of fighting crime. We have a chance to send a real message that violence in any form is never the answer to the problems we face.

Foster's Daily Democrat publishes the editorial, "A weak case to end death penalty."

The decision last week by the N.H. Supreme Court to uphold the conviction of Michael Addison raises serious doubts about the efficacy of an effort being mounted in the Legislature to repeal the state’s death penalty.

In 2008 Addison was convicted of killing Manchester police officer Michael Briggs in 2006.

On Wednesday, the court unanimously turned back all 22 challenges raised by Addison’s defense team. Meanwhile, it is expected the next session of the Legislature will consider a bill to revoke the death penalty.

"Ruling on death row convict not the last word," is Lynne Tuohy's AP report, also via the Concord Monitor.

The New Hampshire Supreme Court’s ruling this week that upheld the conviction and sentence of the state’s only death row convict is far from the last word.

The court will next review the fairness of Michael Addison’s death sentence by comparing it with cases in other states where jurors had to reach life-or-death verdicts on convicted cop killers.

Defense attorney David Rothstein said Friday he doesn’t anticipate arguments to happen before 2015, and Senior Attorney General Jeffery Strelzin said there is still much more work to do before the appeal wraps up.

Earlier coverage from New Hampshire begins at the link.

A Former Oregon Chief Justice Speaks Out on Capital Punishment

"Oregon's death penalty is unjust, this former chief justice says," is the Oregonian OpEd by Edwin J Peterson.  He served on the Supreme Court of Oregon from 1979 to 1994, including eight years as Chief Justice.

In 1978 and 1984, along with most Oregon voters, I voted for and supported the death penalty initiative that reinstated the death penalty in Oregon. Today I don’t. Oregon’s death penalty system is dysfunctional, expensive, unworkable and unfair. Even supporters of the death penalty - I was one – should vote to end the Dickensonian system we have in Oregon.

Dysfunctional. I was appointed to the Supreme Court of Oregon in 1979. In that same year John Wayne Quinn was sentenced to death in an Oregon trial court. In 1981, on Quinn’s appeal, the Oregon Supreme Court held that the 1978 law was unconstitutional. Quinn’s conviction was reversed. On remand he was sentenced to life in prison.

The Quinn decision required an amendment to Oregon’s death penalty law, which, as a citizen, I again voted for in 1984.

Since the restoration of the Oregon death penalty in 1978, 65 persons have been sentenced to death. Some of the convictions have been reversed. Since 1978, not one of those 65 persons has been involuntarily executed. (Two ‘volunteers’ gave up their appeals and were executed.) Today there are 37 persons on Death Row. Those on Death Row, on average, have been there for over 15 years. None of the appeal rights of the 37 persons on Death Row have been exhausted. None! And it will be years before their appeals are exhausted.

And:

Let’s admit it. Our system has failed. Recognize it and repeal Oregon’s death penalty.

Earlier coverage from Oregon begins at the link.

James Holmes' Lawyers Expand Challenge to Colorado Death Penalty

"Lawyers for James Holmes seek to throw out the death penalty," is the Denver Post report by John Ingold.  Here's an extended excerpt from the beginning:

Lawyers for Aurora movie theater shooting defendant James Holmes want the judge in the case to declare Colorado's death-penalty laws unconstitutional.

In multiple motions filed Friday and made public Tuesday, lawyers for Holmes say the state's death-penalty laws are unconstitutionally arbitrary, that the jury-selection process unfairly skews the jury pool, and that the punishment is sought and used so infrequently in Colorado as to make it cruel and unusual.

"Imposition of the death penalty is rare, unusual, freakish, and inconsistently applied throughout the State of Colorado," the defense lawyers write in one motion.

Prosecutors are seeking the death penalty against Holmes, whose lawyers have admitted that he killed 12 people and wounded dozens more in an attack on the Century Aurora 16 movie theater last summer. Holmes has pleaded not guilty by reason of insanity.

A number of the motions are based on the findings of a study by two University of Denver law professors — a study commissioned by the defense team in another murder case — that found that almost all murder cases in Colorado are eligible for the death penalty.

According to the study, 92 percent of the 544 first-degree murder cases in Colorado between 1999 and 2010 were eligible for the death penalty. But prosecutors pursued the death penalty at trial in only five of those cases, according to the study. Based on those findings, Holmes' lawyers argue in the motions that Colorado's laws don't limit the use of the death penalty enough to comply with U.S. Supreme Court rulings.

They also argue that, when the death penalty is used, it is applied inconsistently. The only district attorney's office to take death penalty cases to trial in the past decade is the 18th Judicial District attorney's office, the same one prosecuting Holmes.

AP coverage is, "Holmes' lawyers broaden challenge to death penalty," by Dan Elliott, via the San Francisco Chronicle.

Battling to save their client's life, lawyers for theater shooting defendant James Holmes broadened their attack on the death penalty, saying in motions released Tuesday that the sentence is so unevenly imposed in Colorado and so rarely carried out that it is unconstitutional.

The lawyers also argued that death penalty opponents should be allowed to serve on Holmes' jury, and that victims of the shooting shouldn't be permitted to testify when the jury is deciding punishment.

Separately, the judge on Tuesday delayed a possible showdown hearing for a Fox News reporter over whether she has to reveal her confidential sources for a story about Holmes. The delay gives the reporter time to hear whether a court in her home state of New York will reject a Colorado subpoena seeking the names.

"Attorneys for Movie Massacre Suspect Challenge Colorado's Death Penalty Laws," is by Sam Reynolds for Courthouse News Service.

In a second motion , the defense claims that Colorado's punishment for capital murder is cruel and unusual as defined by state and federal law.

"In measuring and assessing contemporary standards of decency, one important consideration is whether there is a decline in the use of a practice," the second motion states. "Throughout the country and in Colorado, the death penalty is in steep and consistent decline.

"Across the country, states are abandoning the death penalty. In 2004, the courts declared the death penalty to be unconstitutional in New York. In 2007, New Jersey repealed its death penalty law, with New Mexico following suit in 2009, Illinois in 2011, Connecticut in 2012, and Maryland in 2013. In several other states, there has been a de facto moratorium on executions for many years. In 2013, a majority of Nebraska lawmakers voted to repeal the death penalty, but the bill died because of a filibuster by opponents.

"Even the very architects of the modern capital scheme have given up. In 2010, the American Law Institute withdrew its support for the model capital sentencing stature it had drafted, citing 'intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.'"

Death sentences have declined by 56 percent nationwide since 1999. Colorado has executed just one inmate since 1967, the second motion states.

The Denver Post also reports, "Fox News reporter wins delay in crucial theater shooting hearing," also by John Ingold.

A Fox News reporter facing possible jail time in a dispute over a story she wrote about the Aurora theater shooting has been granted a delay in a crucial hearing.

Jana Winter, who is based in New York, had been scheduled to return to court Sept. 30 for a hearing. Now, she is scheduled to return on that date only so that her subpoena can again be postponed — this time to Jan. 3.

The hearing could decide whether Winter will be ordered to testify about her sources for a story she wrote about the case.

Earlier coverage of James Holmes' case begins at the link.

Ohio Joint Task Force - Update

"Ohio death penalty review panel to meet again," from the AP, via Martins Ferry Times Leader.  

The committee examining capital punishment in Ohio and reviewing possible changes to the state's death penalty law is ready to meet again. 

The task force convened by Ohio Supreme Court Justice Maureen O'Connor is divided on issues involving the role that geography and race play in determining who becomes eligible for the death penalty. 

The committee, which meets Thursday in Columbus, recently proposed restricting the use of capital punishment by eliminating cases where an aggravated murder was committed during a burglary, robbery or rape. 

But some members who oppose such a change, including prosecutors on the panel, weren't present for that vote and others. 

Any major recommendation would need legislative approval, which is not guaranteed in what remains a death penalty friendly state. 

More information is at the Joint Task Force to Review the Administration of Ohio's Death Penalty website.

Earlier coverage of the Joint Task Force's work is at the link; also available, more recent capital news from Ohio.

Ohio Prosecutor Examining Past Death Sentences

"Prosecutor reviewing other death sentences," is the AP report by  Andrew Welsh-Huggins.  It's via the Columbus Dispatch.

The prosecutor in Ohio’s most-populous county isn’t limiting his review of capital punishment to the case of a man scheduled to die next month for fatally stabbing a woman 17 times.

Cuyahoga County Prosecutor Tim McGinty also will examine the death sentences of three other inmates set for execution this year or next.

McGinty, who promised to reduce the number of capital indictments when running for election last year, also will look at the county’s other 18 Death Row inmates as they receive execution dates. Those include 15 prisoners sentenced to die before life without parole was an option in the state, beginning in 1996.

Anyone sentenced before then will be looked at differently, Assistant Cuyahoga County Prosecutor Matthew Meyer said on Friday. In addition, the “heinousness” of a killing now plays an important role in McGinty’s approach to capital punishment, Meyer said.

“The office is very much interested in pursuing capital cases as an exception and not as the rule,” Meyer said.

A slightly different version of the article is, "Cleveland prosecutor plans review of all county death penalty cases under new approach," via the Washington Post.

McGinty has made the rare move of asking the Ohio Parole Board to recommend mercy for Billy Slagle, set to die next month for the 1987 killing of his neighbor, Mari Anne Pope, while two children she was watching were home.

McGinty argues it would be difficult to get a death sentence today in the case of Slagle because of his age at the time — 18, the minimum age for execution in Ohio — and because of a long history of drug and alcohol addiction.

Earlier coverage of the Billy Slagle case begins at the link.  The Ohio Parole Board is expected to announce its clemency recommendation tomorrow.

Helen Prejean's Impact

Amy Goodman's latest syndicated column is, "The Catholic nun who changed the US debate on the death penalty forever.  Sister Helen Prejean's Dead Man Walking shook American attitudes on capital punishment. And 20 years on, it still inspires."  It's via the Guardian.

Thirty years ago, a Catholic nun working in a poor neighborhood of New Orleans was asked if she would be a penpal to a death row prisoner. Sister Helen Prejean agreed, forever changing her life, as well as the debate on capital punishment in the US.

Her experiences inspired her first book, "Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States," which has just been republished on its 20th anniversary. She was a penpal with Patrick Sonnier, a convicted murderer on death row in Louisiana's notorious Angola prison.

"Dead Man Walking: Extended Interview with Sister Helen Prejean on Decades of Death Penalty Activism," is the Democracy Now interview conducted by Amy Goodman and Nermeen Shaikh.  There is video at the link.

Here's a brief excerpt from this must-watch, must-read interview:

AMY GOODMAN: It’s interesting that Archbishop Desmond Tutu wrote the introduction to the new book, which has a new subtitle, Dead Man Walking: The Eyewitness Account of the Death Penalty That Sparked a National Debate. And he writes, "As we held our national 'Truth and Reconciliation Commission' hearings and worked to rebuild our country, people around the world were making the same connections about the death penalty—how racist, unfair, and broken it is—and slowly a new global movement for the abolition of the death penalty began." So, you wrote this book 20 years ago. Eighteen states have now banned the death penalty. I think most people don’t realize that of the thousands of murders that take place, far less than 1 percent of those cases is a death penalty imposed. And as you point out—so, when people just say, "Well, of course, if you murder someone, you should be murdered," as you point out, you want to look at who actually gets murdered in that very small—who actually gets the death penalty in that small percentage of cases.

SISTER HELEN PREJEAN: Yeah, yeah.

AMY GOODMAN: So what about the fact that 18 states have banned the death penalty and where it’s going today?

SISTER HELEN PREJEAN: Yeah. We started seeing in 2001 a trend away from the death penalty, in huge contrast to the 10 Southern states that practiced slavery, that do 80 percent of all the executions in this country, and we just have witnessed in Rick Scott, Florida governor, who said, "We’re going to put the death penalty on a fast track. It’s taking too long." And he has the power to do that as governor. And so, there are 13 people who have exhausted their appeals in the courts that he’s lining up on a fast track to be executed. And I just read that his—that he just got bumped up in terms of support of the people.

We have different cultures in this country. The Deep South states have always been the ones with the toughest penal reform. We are the highest incarcerator in the world, and Louisiana, my state, is the highest incarcerator of everybody. And we’re one of the death penalty states. All the Southern states are. And here’s another constitutional issue. Here’s another thing the court never looks at: the huge disparity of practice that 80 percent of all the worst of the worst people, who are on death row, happen to be in the 10 Southern states that practiced slavery. Whereas, when New York had it, when New Jersey had it, and the states that don’t have it—you know, they did less than 1 percent of all the executions. So the Northeast has been the first states to do away with it.

There is more coverage of Sister Helen's work at the link.

An Update From Ohio

The Cleveland Plain Dealer reports, "Task force urges state panel be created to evaluate death penalty prosecutions," by Robert Higgs.

A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.

Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors.

But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.

The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation.

And:

Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision.

It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force.

“It would be a significant change in how things operate now,” Cline said.

The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law.

Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.

Earlier coverage of the Ohio task force begins at the link.  More information is at the Joint Task Force to Review the Administration of Ohio's Death Penalty website.

Case Roundup - News from Colorado, Montana, U.S. Government

There is news in cases involving Colorado, Montana, and the federal death penalty.

The Denver Post reports, "Judge to decide Nathan Dunlap's execution date in May," by John Ingold.

Nathan Dunlap, who murdered four people in an Aurora Chuck E. Cheese restaurant 20 years ago, could be executed in August, after a judge on Friday set a hearing to determine a new reckoning date for the killer.

Judge William Sylvester scheduled a hearing for May 1 to designate a week during which Dunlap will be executed. Under state law, the final date of the execution is selected by the head of the Department of Corrections.

The law says judges must set the execution week between 91 and 126 days out from the day of the hearing at which they set it. If Sylvester were to designate a week at the May 1 hearing, that means Dunlap could be executed some time between July 31 and Sept. 3.

Sylvester's order came after a federal judge's decision earlier this week to lift a stay of execution he had imposed while Dunlap appealed his death sentence in federal court. That appeal ended in February, when the U.S. Supreme Court declined to hear the appeal.

"Montana prosecutors won't seek death penalty in killing of Illinois man kidnapped from hotel," is the AP report filed by Matthew Brown.  It's via the Republic.

Montana prosecutors will not seek the death penalty against the defendant charged with killing an Illinois man who was kidnapped from a Billings hotel, Yellowstone County Attorney Scott Twito said Monday.

Simon Jacobson, 28, is charged with deliberate homicide and other crimes in the January death of Dejuan Laster, 29.

Authorities allege that Jacobson and an accomplice posed as FBI agents to kidnap Laster and his girlfriend from the Extended Stay America hotel during a robbery. Jacobson later admitted to shooting Laster and hiding his body in a culvert in a rural area of Yellowstone County, investigators said.

Jacobson was being held on $1 million bail after pleading not guilty.

Ronald Smith and William Jay Gollehon are the only two inmates currently awaiting execution in Montana.

In comparing Jacobson's alleged actions against those other cases, Twito said Jacobson had only one aggravating factor — the kidnapping — that would merit a death sentence under Montana law, versus multiple aggravating factors in the others.

"It was the assessment of this office that a sentence of death would not likely be imposed," Twito said.

The Billings Gazette reports, "Twito: No death penalty in Laster murder case," by Greg Tuttle.

Yellowstone County Attorney Scott Twito announced Monday that he will not seek the death penalty for the Billings man accused of kidnapping and killing Dejuan Laster.

And:

Under state law, the death penalty can be sought only under certain circumstances, including cases that involve aggravating factors such as multiple victims or aggravated kidnapping.

The aggravating kidnapping charge against Jacobson sparked Twito's review of whether his office should seek the most severe punishment.

Twito said Monday he had consulted with Laster's family about his decision. He said they had been "very open" during his review.

"I believe that they trust the decision that's been made here today," Twito said when asked about the family's response to his decision.

Twito said he also reviewed the cases of the only two inmates currently on Montana's death row, Ronald Smith and William Gollehan. Both the men had multiple aggravating factors, Twito said.

Smith was convicted and sentenced to die for killing two men in 1982. Gollehon received the death sentence for his role in the death of five inmates during a 1991 riot at Montana State Prison. 

It became clear, Twito said, "that a sentence of death would not be imposed (against Jacobson) during the sentencing phase."

In a potential federal death penalty case, the New York Post reports, "US Justice Department will not see death penalty for Colombo crime family consigliere."  It's by Mitchel Maddux.

The US Justice Department won't seek the death penalty for a Colombo crime family consigliere accused of sanctioning the 1997 murder of NYPD Officer Officer Ralph Dols.

US Attorney General Eric Holder issued the course-reversing directive -- made public today -- without citing a rationale for his shift.

Now Colombo wiseguy Joel "Joe Waverly" Cacace, 72, will face a maximum penalty of life in prison if he's convicted at his upcoming mob murder trial in Brooklyn federal court.

Cacace is already serving a 20-year sentence for other mob crimes that has him scheduled to be released in June 2020, according to prison records.

Back in Feb. 2011, Holder authorized Brooklyn prosecutors to pursue the death penalty for Cacace, who's charged with ordering the carefully planned Aug. 25, 1997 hit on the off-duty officer in Brooklyn.

"Attorney General Eric Holder: no death penalty in mob murder trial," is the New York Daily News report by John Marzulli.

U.S. Attorney General Eric Holder ordered prosecutors in Brooklyn to withdraw its intention for the ultimate punishment against former acting boss Joel (Joe Waverly) Cacace, who is still awaiting trial in the case.

Last year two of Cacace’s underlings, Thomas (Tommy Shots) Gioeli and alleged shooter Dino Saracino, were cleared by a Brooklyn jury of the off-duty cop’s killing. Prosecutors contend that Cacace marked the cop for death because he had married the mobster’s ex-wife, Kim Kennaugh.

Earlier coverage of the Dunlap case in Colorado begins at the links.  The federal death penalty category index has more on federal prosecutions.

Arizona PDs Question State's Capital Punishment Scheme

The ABA Journal reports, "PDs argue Arizona’s death penalty law is unconstitutional because it is indiscriminate," by Debra Cassens Weiss.

The motion in Arizona v. Gittens, Jackson, Noonkester, McMahan is at the link.

Two public defenders in Arizona’s Maricopa County contend that the state’s death penalty law is unconstitutional because its aggravating factors allow for a death sentence in virtually every first-degree murder case.

The statute, they argue in the motion filed in February, “has no method of meaningfully distinguishing the few cases in which death is deserved from the many cases in which it is not.” The New York Times mentions the motion in a story about less culpable defendants who draw harsher sentences than co-defendants.

One of those defendants is Patrick Bearup, who helped three co-defendants in the murder of a man they had accused of stealing $200 from his roommate. By all accounts, the Times says, Bearup was not directly involved in the killing, though he did help dispose of the body and severed one of its fingers to retrieve a ring. Bearup was the only defendant in the Maricopa County case to receive the death penalty. The three others, including a defendant who shot the victim, accepted plea deals and avoided execution.

Coverage of the Arizona case begins at the link.

Culpability & Punishment

The New York Times reports, "Less Culpable, but With Longer Sentences," by Fernanda Santos.

Such cases, in which a defendant with lesser culpability draws the harshest sentence, are not uncommon in Arizona, and elsewhere around the country. Of the six inmates executed in this state last year, four were equally or less culpable than co-defendants implicated in the same crimes, according to Dale A. Baich, the supervisor of the capital habeas unit in the federal public defender’s office, which handles appeals of capital cases in federal court. (Prison records show that three of those four co-defendants have been released.)

In many of the 32 other states that carry the death penalty, similar stories unfold as prosecutors, when deciding whom to charge, weigh the cost of mounting a capital trial, which can reach $1 million, against the likelihood of a conviction.

In 2011 in Ohio, Gov. John R. Kasich, using his clemency powers, commuted to life in prison the death sentence of a man convicted of killing two people. The governor, a Republican, said it was unclear if he had been the one to actually commit the murders. Another Ohio inmate, John Getsy, was executed in 2009 for killing the mother of his intended target in a murder-for-hire plot, despite a clemency recommendation by the state parole board, which said that other participants in the crime, including its architect, had not been sentenced to die. (The governor at the time, Ted Strickland, a Democrat, overruled the board.)

Mr. Bearup’s case was one of 135 pending capital cases in Maricopa County in 2006, more than the combined number of cases in the next three jurisdictions at the top of the list: Los Angeles County and Clark County, Nev., each with 36; and Harris County, Tex., with 17.

“In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system,” said Richard Dieter, the executive director of the Death Penalty Information Center in Washington, which tracks the number of executions across the country.

And:

In 1972, the Supreme Court voted 5 to 4 to invalidate all death penalty laws in the country because they had been too arbitrarily applied. One of the concurring justices, Potter Stewart, wrote that the Constitution could not “permit this unique penalty to be so wantonly and freakishly imposed.” States moved to rewrite their statutes, narrowing their definition of first-degree murder or the number of aggravating factors used to define a capital crime. The idea was to make sure the death penalty would be reserved for the worst of the worst.

Related posts are in the Law of Parties and proportionality category index.

Ohio Task Force Continues Work Today

"Task Force On Capital Punishment To Meet Thursday," is the AP report, via WOUB-FM.

A state Supreme Court task force analyzing the effectiveness of Ohio's capital punishment law plans another meeting Thursday as part of its yearlong review.

Ohio Supreme Court Chief Justice Maureen O'Connor has convened the task force while making clear it won't debate whether the state should have the death penalty.

The committee of prosecutors, defense attorneys, judges and death penalty experts is looking at a variety of issues, from how the law affects minorities to the role of clemency.

The committee also is studying whether death sentences are proportional, meaning that any one death sentence is similar to others that have also been handed down.

Earlier coverage of the Ohio Task Force begins at the link.  The Joint Task Force to Review the Administration of Ohio's Death Penalty website has additional information and future meeting dates.

Florida Roundup

"Death Penalty Question Revisited," is the December 23 report from AP filed by Bill Kaczor.  It's via the Lakeland Ledger.

The Florida Supreme Court will be asked to take another look at how judges should determine whether a death row inmate is mentally disabled.

The issue divided the high court last week in a 4-2 opinion upholding Freddie Lee Hall's death sentence for murdering Karol Hurst, a 21-year-old pregnant woman who was abducted while leaving a Leesburg grocery store in 1978. A co-defendant is serving a life sentence.

Defense lawyer Eric Pinkard, who works for a state office that represents death row inmates, said Friday that he will ask for a rehearing and, if that fails, may take the case to the U.S. Supreme Court.

The federal high court has prohibited the execution of mentally disabled inmates as unconstitutional cruel and unusual punishment, but it has allowed states to determine what constitutes mental disability.

The majority of Florida justices ruled Thursday in Hall's case that they are bound by precedent set in earlier decisions prohibiting anyone with an IQ of 70 or higher from being declared mentally disabled, regardless of other evidence to the contrary.

The Palm Beach Post reported, "Lawyers question necessity, cost of local state attorney’s avid pursuit of the death penalty in murder cases," on December 26.  It's by Jane Musgrave.

With his arm wrapped tightly around his wife, Naomi, Gerard Gonsalves seemed to be protecting her from the looming possibility that the loss of one son could cost them the other.

At a recent court hearing, the West Palm Beach couple looked on as psychologists and psychiatrists told a judge what they already knew: Their 24-year-old son, Brandin, suffers from a panoply of mental ills.

Since he was diagnosed at age 13, they tried to get him help to deal with his demons. The search ended in July when Brandin stabbed his 25-year-old brother 69 times in a fatal attack he has said was ordered by God.

Still reeling from the loss, the couple is now confronted with another: The state wants to kill their youngest son for killing their firstborn.

The case underscores the problems with a system State Attorney Peter Antonacci instituted when he was appointed in March, some defense attorneys say. Now, instead of asking a committee of top prosecutors to review every case to determine which accused killer should die for his or her crime, the office automatically seeks the death penalty in all first-degree murder cases.

“It’s crazy,” said Public Defender Carey Haughwout, whose office defends the indigent and represents about half of those charged with murder. “There’s no review done before they file a notice to seek the death penalty. My concern is that it’s handled as a matter of course.”

Under the policy, the number of death penalty cases has doubled from 12 in 2009 to 24 this year. That means costs — both financial and human — have increased as well.

Haughwout and other defense attorneys say they hope the policy changes when State Attorney-elect Dave Aronberg takes office in January. Aronberg declined to discuss how he would decide which accused murderer deserves the death penalty. But on the campaign trail he promised to reinstitute the committee system that was used by his mentor, former longtime State Attorney Barry Krischer, who is helping him prepare to take office.

Three news articles focus on the 2012 DPIC report and Florida death sentences.  The South Florida Sun Sentinel published, "Florida leads nation in sending killers to Death Row," by Rafael Olmeda.  It's also available via Huffington Post.

Florida may be fourth in the nation when it comes to population, but we're still No. 1 when it comes to sending convicted killers to death row, according to a report from a national nonprofit group that studies the death penalty in America.

The Sunshine State sentenced 21 inmates to death in 2012 — more than California, more than Pennsylvania, and even more than Texas, which continues to lead in the number of inmates actually executed, according to the Death Penalty Information Center.

It's the second straight year in which Florida has held the top spot among the states that have a death penalty, but it still represents a big spike over last year, when we sent 13 people to death row. California came in second both years, having sent 10 inmates to death row in 2011 and 14 this year.

"Florida led the nation in death sentences in 2012, report says," by Jeff Weiner for the Orlando Sentinel.

A report by a national nonprofit group that studies the death penalty found that Florida remains among the most active states in using it and put more defendants on death row in 2012 than any other state.

The Death Penalty Information Center's report reveals that only nine states executed a prisoner this year, with Florida putting three to death. Texas, with 15, executed the most defendants, the report states.

However, the Sunshine State far exceeded other states in new death sentences: 21 defendants were sentenced to die in Florida through mid-December, the research says.

Also, "Report: Florida leads nation in new death penalty cases," is by Elaine Silvestrini for the Tampa Tribune.

As capital punishment declines in use and support nationwide, Florida leads the country in the number of death sentences handed down this year, according to a report by a group that advocates against the death penalty.

Florida judges sentenced 21 killers to death in 2012, followed by California with death sentences for 14 murderers, Texas with 9 and Pennsylvania with seven, according to the Death Penalty Information Center. The four states accounted for 65 percent of the death sentences handed out in the United States.

Nationally, the number of death sentences issued was the second lowest since capital punishment was reinstated nationwide in 1976.

In Florida, Duval County sent the most inmates to death row this year, at four, according to information from the state Department of Corrections. Hillsborough and Pinellas counties each sent one person to death row this year.

Earlier coverage from Florida includes the year's final execution and questions of an inmate's competency to be executed.  Earlier coverage of the 2012 DPIC report is also available.

Proportionality Again at Issue in Georgia

Today's Atlanta Journal-Constitution reports, "Lawyer wants death sentence tossed."  It's by Bill Rankin.

A lawyer on Monday asked the Georgia Supreme Court to do something it has not done in more than 30 years -- throw out a death sentence because it is so out of line with sentences imposed in similar cases.

The case of Winston Clay Barrett, sentenced to death for killing his best friend, is unlike other capital cases that involve robbery, rape, underage victims or prolonged torture, Atlanta lawyer Jack Martin argued. This was a drunken brawl that was provoked by the victim and which involved no premeditation, he said.

During oral arguments, Martin asked the court to consider a study by The Atlanta Journal-Constitution that examined all Georgia murder convictions from 1995 through 2004. Martin told the court there were 17 murder cases with facts similar to Barrett's during that time frame where the defendants received life -- not death -- sentences. No similar cases received a death sentence, he said.

The AJC's study, introduced into evidence during Barrett's appeal, "is not the end all or be all," but the court should pay attention to it, Martin said. The court is expected to rule later this year.

The AJC series, published in 2007, found that Georgia's death-penalty law had failed to ensure a predictable and even-handed application of capital punishment. The newspaper researched the facts and circumstances behind 2,328 murder cases, relying largely on court records, police and medical examiner's reports and interviews. The newspaper asked each of the state's 49 district attorneys to review a summary of the data, and many provided input to clarify facts.

In a filing, Lindsey Hurst of the state Attorney General's Office told the court that the AJC's death-penalty study "is not binding on this court, nor is it persuasive authority." On Monday, Hurst told the justices that Barrett's death sentence should be upheld because the Towns County man had a history of violence and killed Danny "Stumpy" Youngblood by smashing his head on a table, pistol whipping him, gouging his eye and then shooting him in the back of the head.

When the court studies the case to determine if Barrett's death sentence was an "outlier," the court will determine "it simply is not," Hurst said.

But two of the court's seven justices expressed concerns.

The 2007 Journal-Constitution four-day series, "A Matter of Life or Death," on proportionality review is available at ajc.com.  In 2008, Justice John Paul Stevens criticized the Georgia Supreme Court on the issue of its proportionality reviews of cases.

Earlier coverage of proportionality issues in Georgia begins at the link. 

Related posts are in the proportionality category index.

Ohio Justice Pfeifer

"Ohio justice rejects death penalty law he wrote," is the AP post written by Andrew Welsch-Huggins, via the New York Times.  It's also available via the San Francisco Chronicle.  Here's an extended excerpt:

As a young state senator 30 years ago, Paul Pfeifer helped write Ohio's death penalty law. Today, as the senior member of the state Supreme Court, he's trying to eliminate it.

It's not uncommon for sitting judges to change their mind on the death penalty — U.S. Supreme Court Justice Harry Blackmun famously said in 1994 he would no longer "tinker with the machinery of death" — but Pfeifer may be the only one to argue so ardently against a capital punishment law he himself created, and yet continue to rule on death penalty cases.

"I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," Pfeifer said in his most recent public comments, testifying in December in favor a bill to abolish Ohio's law. "I don't see what society gains from that."

After the U.S. Supreme Court declared capital punishment unconstitutional in 1972, states spent several years rewriting their laws; those enacted by Florida, Georgia and Texas ultimately met the court's threshold for constitutionality. Other states had to follow those models to have their laws upheld. Ohio's first attempt, in 1974, was found unconstitutional, but the second try, when Pfeifer was chairman of the Senate Judiciary Committee, was enacted in 1981 and has never been successfully challenged. Lawmakers pledged at the time to draft a law reserved for the most heinous murders.

At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.

Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge.

Ohio has 148 inmates on death row. Executions are temporarily on hold while federal courts review the state's lethal injection procedures, but that delay is not expected to last forever. The Democrat-sponsored bill to abolish the death penalty has little chance of passing.

Pfeifer, a Republican, has always charted his own course on the court. For years he was a member of a foursome — two Democrats and two moderate Republicans — dubbed "the Gang of Four" for a series of 4-3 rulings that critics said were anti-business and favored Democrats and their causes. He's also not afraid of mud-slinging: In his spare time, the lifelong farmer raises Black Angus cattle.

Pfeifer had been on the court only two years when, in 1994, he dissented on a vote upholding the death penalty for a man sentenced to death for shooting his ex-girlfriend at the elementary school where she worked as a custodian. Already, he appeared to be having his doubts, writing that "the death penalty is special" and should be "reserved for those committing what the state views as the most heinous of murders." That defendant, John Simko, died of natural causes on death row in 1997.

Pfeifer made similar statements in court opinions over the years. He took his position public in 2001, calling unsuccessfully for an independent panel to review the law. He began to complain that prosecutors were overusing the statute, seeking death sentences in domestic quarrels that went bad instead of for the worst of the worst killers.

He often cites the case of Richard Nields, who murdered his girlfriend in their southwestern Ohio home in 1997, then stole her car and travelers' checks, as an example of overreaching by prosecutors.

"This case is not about robbery," Pfeifer wrote in his dissent to the court's 2001 decision upholding Nields' death sentence. "It is about alcoholism, rage and rejection and about Nields' inability to cope with any of them." Ultimately, Gov. John Kasich agreed and last year changed Nields' sentence to life without parole.

In January 2011, Pfeifer made his strongest statements to date, calling on Kasich to empty death row.

Pfeifer says he's required as a judge to take positions to make laws better, hence his current stand. He's also required to rule according to the law and the Constitution, which he says he does. Ohio Supreme Court Chief Justice Maureen O'Connor says she's comfortable Pfeifer is following the law and not showing bias.

Since 2001, Pfeifer has written the majority opinion upholding death sentences in five cases, dissented in two others and upheld death sentences while disagreeing on aspects of the decision in four other cases.

The ABA Journal posts, "Ohio Justice Who Helped Write Death Penalty Law Now Opposes It."  It's by Debra Cassens Weiss.

An Ohio Supreme Court justice who helped write the state’s death penalty law as a state legislator in 1981 is now speaking out against it.

In December, Justice Paul Pfeifer testified in favor of a bill to abolish capital punishment, the Associated Press reports. "I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," he said.

Earlier coverage of Ohio Supreme Court Justice Pheifer on capital punishment begins at the link.

Additional Coverage of Justice Pfeifer's Call for Ohio Repeal

"Ohio Supreme Court Justice Paul Pfeifer wants to scrap the death penalty," is the title of Reginald Fields' report for today's Cleveland Plain Dealer.

Ohio Supreme Court Justice Paul Pfeifer, who helped write the state's death penalty law, now wants Gov. John Kasich to end capital punishment in Ohio.

But a spokesman for the governor said Kasich will continue to support the death penalty.

Pfeifer, a Republican, was a state senator and chairman of the Senate's Judiciary Committee in 1981 when the death penalty became the law.

But safeguards lawmakers put in place to prevent inequities have not worked, said Pfeifer, citing racial and geographical disparities in how the penalty has been administered. Pfeifer called the use of capital punishment a "lottery."

"It has bothered me from the beginning," Pfeifer, who won a new term in November, told reporters on Wednesday. He made his initial comments about the death penalty on Tuesday during his swearing-in ceremony at the court.

"To my surprise, the next thing I know I'm at the Supreme Court having to deal with these cases where people are sentenced to death under a statute I was very involved in writing," he said.

Pfeifer said an option for life in prison without parole was wrongly excluded from the earlier legislation. He said justices have never used the discretion the law gives them to look beyond legal arguments and use their own common sense to determine whether a person should be on death row.

With 157 people on Ohio's death row and the state executing people at rapid clip, the justice said it's too late to fix the system.

"I think the best answer is for the governor to just commute them all and that we do what Illinois has done and say we don't need the death penalty in Ohio any longer," Pfeifer said.

Alan Johnson writes, "Pfeifer: Revise constitution, end death penalty," for the Columbus Dispatch.

The Ohio Constitution is "a mess," clogged with casinos and livestock standards, and should be streamlined and revised, Ohio Supreme Court Justice Paul E. Pfeifer said yesterday.

Pfeifer, a maverick Republican who began his 19th year on the court this week, also said the death penalty should be abolished in Ohio and laws should be passed requiring more transparency in campaign finance.

And:

Pfeifer, the senior justice on the Supreme Court, also reiterated remarks he made Tuesday at his swearing-in ceremony in which he urged fellow Republican Gov. John Kasich to commute all death sentences to life without the possibility of parole.

Pfeifer, who as a state senator was a co-author of Ohio's 1981 capital-punishment law, said he now feels it should be abolished, primarily because it's being used for cases for which it was never intended.

"I think the time's right on this one. Politically it's right. ...You have Republicans in every direction. ... With that political configuration, it would be the most opportune time to seriously debate and discuss whether or not we have the death penalty."

Pfeifer said he will talk to both the governor and legislative leaders about his position.

Kasich faces the first execution on his watch Feb.17, when Frank Spisak of Cuyahoga County is scheduled to die by lethal injection.

Asked about the governor's response to Pfeifer's comments, Kasich spokesman Rob Nichols said, "Gov. Kasich supports capital punishment." He declined to elaborate.

The Ravenna Record-Courier has, "Ohio justice: It's time to abolish death penalty," by Marc Kovac.

Is it time for Ohio to consider abolishing the death penalty?

Ohio Supreme Court Justice Paul E. Pfeifer thinks so, telling an audience in Columbus Tuesday that the existing state law on capital punishment makes it “exceedingly difficult for this statute to be administered in a fair and just way.”

He added, “Gov. [John] Kasich and the governors after him, I believe, need to consider commuting all of those sentences to life in prison without the possibility of parole, and I think it’s time for Ohio to at least entertain the discussion of whether or not we are well served by having a death penalty.”

Pfeifer made the comments Tuesday, after he and fellow Justice Judith Ann Lanzinger took their ceremonial oaths of office. Both won new terms to the state’s high court in November.

Pfeifer said most of the 157 people currently serving on Death Row were sentenced prior to a law change that allows judges to issue sentences of life in prison without the possibility of parole.

And since the latter, few death penalties have been handed down.

He cited Illinois as a recent example of a state where lawmakers have moved to end capital punishment. Ohio lawmakers should consider doing the same.

And:

He added, “I encourage all in the Legislature, all who have a responsibility on this, to entertain a thoughtful discussion and to look at the question in a serious way. I think the time has come for us to make that change.”

Earlier coverage of Justice Pfeifer' call for repeal is at the link.

Ohio Supreme Court Justice Calls for Repeal of State's Death Penalty

"Justice opposes death penalty; Pfeifer helped write law, but now says state should halt executions," is the title of the AP report by Andrew Welsh-Huggins.  It's via the Akron Beacon Journal.

An Ohio Supreme Court justice who helped write the death penalty law three decades ago and has more recently questioned its interpretation called Tuesday for an end to capital punishment in the state.

Justice Paul Pfeifer also said Gov. John Kasich and any future governor should consider commuting the sentences of Ohio's death row inmates to life without parole.

''These are important matters that need all of our thoughtful attention — need the attention of the legislature to consider seriously whether we're well-served by this statute any longer,'' he said in remarks following his swearing-in ceremony.

''The time has come for us to make that change,'' Pfeifer said.

Pfeifer, a moderate Republican, was chairman of the Senate Judiciary Committee as Ohio debated the capital punishment bill that became law in 1981.

Ohio has 157 men and one woman on death row. Of those, 43 were sentenced to death before a 1996 law gave juries the option of sentencing defendants to life without the possibility of parole.

Death sentences in Ohio began to drop after that law was passed, and they dropped further following a 2005 law that allowed prosecutors to seek life sentences without first pressing death penalty charges.

Ohio courts sentenced three men to death in 2008 and just one in 2009, before a spike in sentences last year brought the number up to seven. That's still below pre-1996 levels when a dozen or more were sentenced to death each year.

Kasich, a Republican, continues to support capital punishment, spokesman Rob Nicholas said.

And:

Pfeifer's remarks were his strongest to date, but for a decade the justice has questioned the law's use in Ohio. He has often said prosecutors were using it for cases, such as domestic violence slayings, that didn't merit a death sentence.

Pfeifer said he didn't want to be misunderstood when it came to the crimes death row inmates were convicted of.

''There are no nice people on death row. They all committed heinous crimes,'' he said. ''But every murder is a heinous crime. Every murder is impossible for any sane person to understand what would motivate someone to do something like that.''

Last May, Justice Pfeifer made headlines when he called for a systematic review of those on Ohio's death row because of sentencing disparities.  More in the posts:

• Ohio Supreme Court Justice Calls for Review of All on State's Death Row
• More From Ohio
• More on the Ohio Review Proposal

 

Tennessee Governor Grants Clemency; Paul House Not on List

Today's Tennessean reports, "Bredesen commutes Edward Harbison's death sentence, pardons 22 others; Governor also exonerates 1."  It's written by Brian Haas.

Gov. Phil Bredesen on Tuesday pardoned 22 people, exonerated one and commuted the sentences of four, including convicted murderer and death row inmate Edward Harbison.

More than 1,000 people sought clemency from the outgoing governor, hoping to have crimes pardoned, sentences shortened through commutations or outright erased by an exoneration.

And:

He was convicted in 1983 and has been on death row for years during a rollercoaster series of challenges to the constitutionality of the state's use of lethal injection.

He has been scheduled for execution multiple times over the past decade, most recently for Feb. 15. But court challenges have put all executions temporarily on hold.

"It's obviously a heinous crime, but when I compare it to others I don't think it rose to the level of a death penalty crime," Bredesen told The Associated Press about Harbison. "So I knocked it down one notch to life without parole. And that's enough said, I guess."

Also:

Tuesday's clemencies also featured the righting of a wrong.

In 2006, James Green was convicted of abducting and groping a child and sentenced to 16 years in prison.

But in April 2008, the victim recanted her story, leading to the dismissal of the charges against him.

The exoneration wipes Green's conviction clean.

Erik Schelzig's AP poss is, "Bredesen grants 22 pardons in last week."  It's via the Knoxville News Sentinel.

Bredesen said he granted 22 pardons collected over his eight years in office that he said should be "completely noncontroversial" because they affect people who committed less serious offenses and have already served their sentences.

Former death row inmate Paul House, who has said he would seek an exoneration after his conviction in a 1985 Union County murder was dismissed over DNA tests in 2008, was not on Bredesen's list.

Without gubernatorial exoneration, House is ineligible for up to $1 million allowed under state law to compensate those wrongly convicted of crimes and released from prison. Bredesen said he was uncertain whether House had filed a formal request for an exoneration, and added that he didn't believe there was enough evidence to clear him.

"Bredesen Grants 22 Pardons, 4 Commutations, 1 Exoneration," is the Chattanoogan report.  The paper also provides a table of the Bredesen clemency actions.

Governor Phil Bredesen on Tuesday granted 22 pardons, four commutations and one exoneration.

The commutations included the commutation of the sentence for death row inmate Edward Jerome Harbison to life without the possibility of parole in connection with the 1983 murder of Mrs. Frank Russell.

None of these actions results in the release of any person from prison, officials said.

All of the pardons related to cases committed some time ago and in each case sentences have been served or probationary periods completed, it was stated.

Sixteen of the pardons are granted at the recommendation of the Board of Probation and Parole (BOPP). An additional seven pardons concern cases where the BOPP had declined a review because the technical requirements set by the governor had not been met. No pardons were issued against the recommendation of the BOPP.

"Bredesen Grants Executive Clemency," is the title of Governor Bredesen's news release.

Governor Phil Bredesen today granted twenty-two pardons, four commutations and one exoneration. The commutations included the commutation of the sentence for death row inmate Edward Jerome Harbison to life without the possibility of parole. None of these actions results in the release of any person from prison.

And:

"I've looked at these cases for a long time," said Bredesen. "I believe they represent a responsible and humane exercise of the governor's power and best serve the interests of fairness and justice."

Related posts are in the clemency index; more on Paul House, at the link.

This is an excellent time to remind readers of the Pardon Power blog, which routinely examines clemency issues. 

Also, in 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  The Appendix contains comparative state information.

Support Is Waning for Death Penalty

That's the title of an OpEd in today's Richmond Times-Dispatch written by two noted conservatives, Richard  Viguerie and Brent Bozell.  LINK

We lifelong conservatives and Tea Party supporters recently urged the death sentence for Teresa Lewis in Virginia be commuted to life in prison without parole instead.

We are among a growing number of conservatives who have questions and reservations about the death penalty, believe it is no longer a necessary form of punishment based on either Lockean or biblical principles, or oppose it outright.

Around the country death sentences are dropping, and support for the death penalty is waning. This trend is not limited to bleeding-heart liberals and criminal coddlers.

We urge our fellow conservatives to at least consider some issues when contemplating the death penalty.

The Old Testament required the death penalty for certain sins and a litany of offenses. In John 8 of the New Testament, the Pharisees confronted Jesus about a woman ready to be stoned for adultery. Jesus, sensing a trap they laid on a conflict between the Old Testament and Roman law, said: Let him who is without sin cast the first stone.

We believe John 8 of the New Testament shows that Jesus did not consider the death penalty mandatory punishment for sins, and certainly not unless the process complied with God's law. Deuteronomy 17:6 requires more than one witness to convict.

We also believe conservative Lockean principles do not compel the death penalty.

John Locke's Second Treatise on Government offers a justification of the State's taking the life of someone who is guilty of a heinous crime. Locke, on whose principles conservatism is built, believed the death penalty was a justifiable punishment for two reasons: protecting society (self-preservation) and deterrence.

And:

We now, however, have maximum security prisons that were incapable of being built in Locke's time. Society may protect itself without putting a human to death as it would a wild animal. Since we believe each person has a soul, and is capable of achieving salvation, life in prison is now an alternative to the death penalty.

Under Locke's other reason, deterrence, punishment should be severe enough to discourage criminal acts. We certainly agree. However, some data show the death penalty does not act as deterrence.

In fact, the data seem to indicate murder and other heinous crimes may be lower in jurisdictions that do not have the death penalty. That's not proof, of course, but we believe death penalty proponents bear the burden of proof that the ultimate punishment is in fact a deterrence.

From our conservative perspective, there are other reasons we oppose the death penalty. It is an expensive government program with the power to kill people. Conservatives don't trust the government is always capable, competent, or fair with far lighter tasks.

In a news article by Frank Green and Reed Williams, the Times-Dispatch reports, "Many factors figure in death-penalty cases."

A smiling Sam McCroskey was led from Prince Edward County Circuit Court last month after a plea deal won for him a life sentence instead of execution for bludgeoning four people to death -- three while they slept.

Three days later, Teresa Lewis, a Pittsylvania County grandmother, was executed by injection for a double murder-for-hire in which she did not pull the trigger.

The different outcomes were the latest to confound and upset Virginians who support or oppose the death penalty.

Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect commonwealth's attorneys, the wishes of the victims' families, the strength of evidence, and the abilities of the prosecutor and defense lawyers.

From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role.

And:

Even geography is a factor. A capital murder on one side of a county or city line can result in a death sentence and, on the other, life in prison.

In 2001, the General Assembly's Joint Legislative Audit and Review Commission studied 215 capital punishment-eligible cases in Virginia from 1995 to 1999.

In that study, suburban prosecutors sought the death penalty in 45 percent of the cases, while city prosecutors sought execution in 16 percent. In rural areas, the death penalty was sought in 34 percent of the cases.

Howard said it is not surprising that in a federal system of government, some states have the death penalty and some do not.

"But it comes as a little more of a jolt when you find that statistically, the prosecuting decision to ask for the death penalty varies quite substantially from one county or one city from another within a state," he said.

"I'm not sure that makes it unconstitutional, but it adds one more, if you like, arbitrary element to the mix -- the same taking of life in two different places but quite disparate decisions."

The quote above is from A.E. Dick Howard, a University of Virginia law professor and constitutional scholar.

 

In the Aftermath of Teresa Lewis' Execution

Several Virginia newspapers carry columns following the execution of Teresa Lews Thursday night.

"More disturbing than Lewis' execution is our cavalier response," is the title of James Clements' editorial column in today's Culpepper Star Exponent.

I come to bury Teresa Lewis, not to praise her. Certainly the evil that we do lives long after us, and the good is interred with our bones.

But I’m not convinced that Virginia (or any place) should be sanctioning the murder of our citizens — even the ones who “deserve” it. And I find the cavalier response on Internet message boards to be more disturbing than the execution itself.

The Newport News Daily Press carries, "Who's more culpable: Hired killer or hirer?"  It's written by Ashley Kelly and Peter Dujardin.

Who's more culpable in a murder-for-hire plot? The person who hired the killer? The hit man who carried it out?

Teresa Lewis, 41, who died by lethal injection on Thursday — the first woman to be executed in Virginia in 99 years — hired two men to kill her husband and stepson for $250,000 in insurance proceeds. The two contract killers got life.

But consider the murder of naval officer Corey Allen Voss in Newport News.

Voss, 30, was shot to death in 2007 after pulling up to a bank in Oyster Point to withdraw money from an ATM in what was designed to look like a random robbery. It turned out that his wife, Catherina Rose Voss, and her lover, Michael A. Draven, had hired a hit man to kill him.

Just as in the Lewis case, the motive was money: $600,000 in insurance benefits.

But in the Voss case, prosecuted federally in 2009, wife and lover both got life in prison, as the Justice Department didn't seek death against them. Meantime, the hired killer, David A. Runyon, now sits on death row in Terre Haute, Indiana.

Darrell Laurant writes, "Fairness on death row," for the News & Advance.

My problem with last week’s execution of Teresa Lewis has nothing to do with her gender. Nor is it simply a knee-jerk opposition to the death penalty.

It has to do with fairness. If Lewis was sentenced to lethal injection for the 2002 murder-for-hire of her husband and son in Pittsylvania County, the two men she paid to do the deed should have joined her. Yet because they agreed to testify against their “boss,” Matthew Shallenberger and Rodney Fuller got life in prison, instead.

Never mind that Shallenberger (who later died in confinement) told a number of people that he had manipulated Lewis into their arrangement, spotting her immediately as an easy mark.

Unfortunately, this is not an isolated case. A few years ago, then-News & Advance reporter Shannon Brennan and I worked on a series examining the case of every death row inmate. A number of those condemned men had been ratted out by co-conspirators, often in situations where it was impossible to tell who was really the guiltier party.

One of those always stuck with me. A Richmond automobile dealer decided he was tired of sharing the profits with his partner, so he decided to take the partner out of the picture. He hired a couple of hit men and told them that the partner would be working late one night. Another employee was also on the premises when the two hired killers walked in. Each shooter chose a separate target.

The scheme eventually fell through, as most of them do, and one of the four perpetrators lost the race to the prosecutor’s office. The other three turned on him, and he was executed while they escaped with their lives (if you can call a life in prison an escape).

The Washington Post Story Lab blog posts, "Defending a killer on Death Row, by  Annys Shin.

Last week, Washington Post reporter Maria Glod wrote eloquently about watching the execution of Teresa Lewis die for plotting to kill her husband and stepson eight years ago. Reading Glod's moving description of Lewis's death, I couldn't help but notice the reference to Lewis's lawyer, Jim Rocap, whom Glod described as "a man who fought to save her and I knew would be devastated by her death."

There are plenty of people who can't stomach the idea of defending criminals, let alone fighting to save the life of someone who has been convicted of helping to take two other lives. Often, even the people who take on those cases may never have imagined they would be in that position. Rocap, for instance, is, according to his law firm bio, a partner in the Washington office of Steptoe & Johnson, the sort of firm that, if it deals with criminal activity, usually sticks with the white-collar variety. Rocap, according to the firm's website, has built a career around complex civil litigation, with an emphasis on large insurance coverage disputes. He volunteered to take on the legally complex, emotionally wrenching, and arguably thankless task of trying to save Lewis from execution.

I don't know exactly how Rocap spent the last few days leading up to the execution. But I have an inkling, thanks to an incredible 1996 piece by then-Washington City Paper staff writer John Cloud about Paul Khoury, another white shoe lawyer who took on a death penalty case. His client, Joe Payne, was convicted of incinerating a fellow inmate inside prison.

Glod's account is, "Inside the death chamber: A reporter's view."

Three weeks ago, I met convicted murderer Teresa Lewis in prison. Her husband and stepson died because of her, and she wept. She told me was scared that her daughter hated her, and that she longed to see her baby grandson grow up. We were separated by glass and her wrists were cuffed, but she tucked her fingers through the narrow slot in the window and reached out to grasp my hand.

On Thursday night, I watched her die.

I volunteered to be a media witness to Lewis's execution because I believe that if our society chooses to execute murderers, we must face that choice and the details of how we carry out those killings. It is not for me to say whether the punishment was just, but it's my job to describe what I saw.

Still, in the days before, I dreaded going.

I don't pretend I knew Teresa Lewis. We only talked once for an hour or so. But it was enough time to know she understood she had done terrible things, but there were people she loved who loved her. It is unsettling and upsetting to plan a day around a death that will occur at a predetermined time, in a predetermined place before an audience.

Earlier coverage begins here.

Supreme Court Rejects Stay in Virginia Case

"Woman on Death Row Runs Out of Appeals," is the title of Erik Eckholm's report in today's New York Times.

“She is clearly the head of this serpent,” the judge said of Teresa Lewis in 2003 when he sentenced her to death by lethal injection, describing her as the mastermind of the cold-blooded murders of her husband and his son as they slept in rural Virginia.

Late on Tuesday, the Supreme Court denied her last-ditch appeal for a stay, and Ms. Lewis, now 41, is scheduled to die on Thursday night at 9. Her case has drawn unusual attention, not only because she would be the first woman executed in the United States since 2005, and the first in Virginia since 1912, but also because of widely publicized concerns about the fairness of her sentence. Ms. Lewis waited this week in her prison cell, reportedly soothed by intense religious faith.

Her lawyers say her original defense against the death penalty was bungled. They also cite new evidence suggesting that Ms. Lewis — whose I.Q. of 72 is described by psychologists as borderline retarded — was manipulated by her co-conspirators, who were out to share in savings and life insurance worth hundreds of thousands of dollars. Her partners in the crimes, two young men who fired the guns, received sentences of life without parole in what her lawyers call a “gross disparity” in punishment.

On Tuesday, blocking her only other chance for a reprieve, Gov. Bob McDonnell said for the second time that he would not grant clemency for what he called her “heinous crimes.”

Ms. Lewis’s guilt is not at issue. By her own admission, she plotted with the men to shoot her husband, Julian C. Lewis Jr., 51, and his son, Charles J. Lewis, 25, a reservist about to be deployed abroad.

And:

Her lawyers argued in their petition to the Supreme Court that the case should be reopened because her original defense lawyer failed to explore whether her low intelligence and her psychiatric vulnerability would have left her able to plan the scheme. State prosecutors disagreed.

Opponents of the death penalty, and others who feel Ms. Lewis’s sentence is unjust, plan to hold vigils on Thursday, including one outside the Greensville Correctional Center in Jarratt, Va., where the execution is to take place.

“She said she is leaving it in the hands of Jesus,” her lead defense lawyer, James E. Rocap III, of Steptoe & Johnson in Washington, said on Tuesday, before she heard of the 7-to-2 decision by the Supreme Court not to consider her case.

The Washington Post has, "Court denies Va. woman's death row appeal," by Maria Glod.

The U.S. Supreme Court on Tuesday refused to halt the execution of a Virginia woman who planned the murders of her husband and stepson, meaning that the state is almost certain to execute its first woman in nearly a century.

Teresa Lewis, 41, admitted that she plotted the 2002 killings of her husband, Julian Lewis, and his son, Charles "C.J." Lewis, to collect insurance money. Lewis is scheduled to die by injection Thursday night.

In a two-paragraph order, the high court said Lewis's application to stay her death sentence was denied.

In recent days, Lewis's supporters have argued that she does not deserve to die because she is borderline mentally retarded, with the intellectual ability of about a 13-year-old, and had been used by a much smarter conspirator. It is unfair, they said, that she was condemned to death while the two men who fired the shots received life terms.

"We are deeply disappointed," Lewis's attorney, James Rocap, said Tuesday night. "A good and decent person is about to lose her life because of a system that is badly broken."

And:

Virginia Gov. Robert M. McDonnell (R), who has supported legislation to expand the use of the death penalty, was unmoved by Lewis's request for clemency and a follow-up plea. Lewis admitted to committing "heinous" crimes, he said in a statement, and no medical expert had determined that she is mentally retarded as defined by Virginia law. It did not matter, McDonnell said in a recent interview, that the accused is a woman.

A woman was last executed in the United States in 2005, when Frances Newton was killed by injection in Texas for the fatal shootings of her husband and two young children. Eleven women have been executed nationwide since capital punishment was reinstated in 1976.

Victor Streib, an Ohio Northern University law professor who has studied women and the death penalty, said women are less likely than men to be sentenced to death if they are convicted and more likely to have a death sentence overturned.

Streib said he is surprised that Lewis appears headed for the death chamber because of her diminished mental capacity and because she has no history of violence.

"You'd have to say she's the worst case of a woman committing a murder in Virginia in the last century, and I don't think anyone can say that," Streib said.

The AP report is, "US high court clears way for Va. woman's execution," by Steve Szkotak. 

The U.S. Supreme Court refused Tuesday to block the execution of a woman convicted of two hired killings, clearing the way for the state's first execution of a woman in nearly a century.

Teresa Lewis, 41, is scheduled to die by injection Thursday for providing sex and money to two men to kill her husband and stepson in October 2002 so she could collect on a quarter-million dollar insurance pay out.

Two of the three women on the court, Justices Ruth Bader Ginsburg and Sonia Sotomayor, voted to stop the execution. The court did not otherwise comment on its order.

The court's decision followed Gov. Bob McDonnell's refusal to reconsider a clemency request, which he rejected Friday.

"A good and decent person is about to lose her life because of a system that is broken," said attorney James E. Rocap III, who represents Lewis. He said he was referring to the decision by the Supreme Court and McDonnell's rejection of clemency.

And:

The Virginia case has had repercussions as far away as Iran.

An Iranian news agency reported Tuesday that Iranian President Mahmoud Ahmadinejad accused the West of launching a "heavy propaganda" campaign against the case of an Iranian woman who had been sentenced to be stoned to death for adultery but failing to react with outrage over the imminent execution of Lewis in Virginia.

Ahmadinejad's reported comments came during a speech Monday to Islamic clerics and other figures in New York, where he is attending the U.N. General Assembly.

In the Harrisonburg Daily News-Record , Chris Edwards writes the OpEd, "Death Penalty Benefits No One."

Teresa Lewis is scheduled to die on Thursday. Her case is receiving attention as the first execution of a woman in Virginia for nearly a century. She was convicted of hiring the two men who killed her husband and adult stepson for their money at the family’s home near Danville. Her guilt is not in question, nor is anyone calling for her release. Regardless of gender, people who commit the most heinous crimes should be locked away to prevent them from hurting others.

Yet when my state, where I pay taxes, vote and benefit from services, intentionally kills any human being, we are all made participants to it. I object.
Virginia author and former attorney John Grisham recently cited Lewis’s case as an example of how arbitrary sentencing can be. Lewis, a remorseful prisoner who has a low IQ, was sentenced to die, while both triggermen — with one perhaps the mastermind — plea-bargained for life sentences.

Like Grisham, law professor Stuart Banner discusses arbitrary factors on which a death sentence depends, including local politics, budgets, publicity and defense attorneys’ skills, in his book, “The Death Penalty: An American History.” He compares execution to a lightning strike, given the small percentages of convicted first-degree murderers who receive it.

Earlier coverage begins with this post.

More Coverage of Teresa Lewis

The current issue of Time reports, "In Virginia, a Woman on the Verge of Execution."  It's written by Katy Steinmetz and Alex Altman.

In deciding whether to grant clemency, Governor McDonnell can consider a range of mitigating circumstances, including the Shallenberger letter and Lewis' behavior during the seven years she has lived in an isolated, 6-by-8-ft. cell at a Fluvanna County correctional facility. During her imprisonment, Lewis' faith has deepened. She ministers to other prisoners and has "provided some measure of peace" to troubled inmates, says the Rev. Lynn Litchfield, Lewis' prison chaplain until April 2009. "I really believe Teresa can be a positive influence inside," Litchfield says. Governor McDonnell will issue a clemency ruling by Sept. 18, in keeping with his policy of ruling on clemency petitions at least five days before the date of a scheduled execution, says his spokesman, Tucker Martin.

Rocap describes his client as anxious and apprehensive as the days tick away. "She wants to live. She's not resigned to dying," he says. "She thinks she has a lot to offer and she wants to do anything she can to make people realize she's much more than the person that was depicted on the worst day of her life." In testimony written by Lewis and read by a fellow inmate at services held in late August, the condemned was remorseful. "I've done so many things wrong. I took two people's lives that I loved very much and I hurt so many more that I loved as well!" she writes, later adding, "I don't want to die this way, or actually die at all! ... I will fight to the end, and in the end, no matter what, I'm gonna win either way."

"Low-IQ woman on death row seeking clemency," is the UPI report.

Lawyers for a Virginia woman on death row diagnosed with borderline mental retardation are seeking clemency from the governor.

Teresa Lewis was convicted of participating in a plan with two hit men to kill her husband in 2002. Court records show Lewis stood in another room while the men, Matthew J. Shallenberger and Rodney L. Fuller, shot Julian Lewis and his son C.J. Teresa Lewis waited for 45 minutes before calling police, who said Julian Lewis told them, "My wife knows who done this do me," shortly before he died.

Shallenberger and Fuller were sentenced to life in prison. The trial judge ruled Lewis was the "mastermind behind the crimes" and sentenced her to death.

Earlier coverage of her case begins with this post.  There is more information at the Save Teresa Lewis website.

New Picture Has Emerged of Woman Facing Imminent Execution in Virginia

That's the title of a news release issued by the Death Penalty Information Center regarding the case of Teresa Lewis.  LINK  Here's the complete release:

Unless the governor or the U.S. Supreme Court intervenes, Teresa Lewis will be put to death on September 23 in Virginia, the first woman to be executed in that state in a century. But the woman whom the sentencing judge assumed was the mastermind in the murders of her husband and adult stepson now has been shown to be a simpler person who was readily led by others and the target of a scam by an ambitious hitman. Ms. Lewis has taken full responsibility for her role in the crime, but was probably less culpable than the two men who used her and actually carried out the killings. Those men were given life sentences, while Lewis pleaded guilty and received a death sentence.

"The issue in this case," said Richard Dieter, Executive Director of the Death Penalty Information Center, "is not that Teresa Lewis is a woman and should be treated differently. But it would be grossly unfair if the one person among those involved who is probably the least danger to society, who is certainly no more guilty than those who carried out the murders, and whose disabilities call out for mercy, is the only person scheduled to die for this crime."

Teresa Lewis has an IQ of 72, close to the level of intellectual disability that would exempt her from the death penalty. She has been diagnosed with a dependent personality disorder that meant she looked to others for help and direction, and she was addicted to prescription drugs at the time of the crime. At a very low time in her life following the death of her mother, Matthew Shallenberger (IQ 113) and Rodney Fuller became her acquaintances, and she followed their suggestions in planning a crime to gain insurance money. But far from being the ringleader, Lewis was more of a pawn, as a letter from Shallenberger to a girlfriend indicates. He wrote that he considered his romantic involvement with Teresa "just part of what had to be done to get the money" and that she was "just what I was looking for: some ugly bitch who married her husband for the money and I knew I could get to fall head over heals [sic] for me." (Shallenberger later committed suicide in prison.)

A psychologist who interviewed Shallenberger reported that he "boasted of dreams of becoming a 'hitman' for the Mafia." Teresa, on the other hand, bungled attempts to retrieve her husband's cash and insurance after the murder, including presenting an obviously forged check to the bank. When she was questioned by police, she could not tell a straight story and quickly confessed her involvement, alerting police to Shallenberger and Fuller.

Rodney Fuller, Shallenberger's accomplice in the murders, agreed that Teresa was a follower, not a leader: "It seemed to me that Mrs. Lewis would do just about anything Shallenberger asked her to do. As between Mrs. Lewis and Shallenberger, Shallenberger was definitely the one in charge of things, not Mrs. Lewis."

Since being sent to death row, Teresa Lewis has been remorseful and a model inmate. A prison chaplain noted that Teresa held steadfastly to her faith and shared her love and support with women in the cells around her. Prison officials have talked about her singing hymns in her cell that calmed the entire wing.

Lynn Litchfield, the former chaplain in Virginia where Lewis is being held, recently described her in Newsweek's "My Turn" section:

Teresa seemed meek, almost pliant. When I hugged her-the only hug we ever shared-she was so grateful. She didn't look like a remorseless killer, a "mastermind" who plotted two murders, as the judge put it (her original lawyers did little to dispute this image). In one of our sessions, she collapsed into great soul-shattering, body-heaving sobs and cried into my wrist, the only part of me I could get through the slot in the door.

In addition to a clemency petition to Governor Robert McDonnell, Lewis's lawyers have asked the Supreme Court for a stay of execution while it considers her legal petition. Virginia sets execution dates before the Supreme Court decides whether it will take a case, making a petition for a stay necessary so the Court can give reasonable consideration to her issues.

Before the Court, Lewis's attorneys assert that she pleaded guilty in order to allow the judge determine her sentence. Virginia law required that in order to have a judge, rather than a jury, she had to waive her right to a jury throughout the process, including the determination of whether she was eligible for the death penalty. Whether that is a constitutional deprivation of her right to trial is an arguable issue deserving more time.

ABC News posts, "Teresa Lewis, Virginia Woman With Borderline Mental Retardation Faces Execution," by Ariane de Vogue.

"We think Teresa has an extremely strong case for clemency because evidence has been developed that no court has looked at before, " said James E. Rocap III, a lawyer for Lewis.

Rocap points to statements from Shallenberger , after his conviction, suggesting that he was the mastermind of the plot, not Lewis.

"The evidence shows without a doubt that Teresa was being used by Shallenberger," said Rocap. "Teresa has never engaged in any violent activity throughout her life, she has an exemplorary prison record , deep remorse, and we think it is simply not right for the triggerman to get life, while Teresa is facing the death penalty."

The case also raises an ongoing discussion in the legal community about the issue of mental retardation. In 2002 the U.S. Surpeme Court forbid the execution of the mentally retarded.

Richard Dieter, the executive Director of the Death Penalty Information Center which opposes the death penalty says that because Lewis is on the borderline of mental retardation the Governor should step in. "It would be grossly unfair," he said, "if the one person among those involved who is probably the least danger to society, who is certainly no more guilty than those who carried out the murders, and whose disabilities call out for mercy, is the only person scheduled to die for this crime."

Lewis was found to have an IQ of 72. In Virginia, 70 is the number used to determine mental retardation, among other factors.

Elisabeth Semel , Director of the Death Penalty Clinic at Berkley Law, questions the use of absolute numbers to determine someone's level of mental retardation. "So many factors can contribute to the reliability or unreliability of a numerical score. " she said. "If you have this absolute as a number you can't take into account how severely intellectually disabled someone might be."

But victim's rights advocate Kent S. Scheidegger of the Criminal Justice Legal Foundation said, "Simply being on the slow end of the intellectual scale, but not retarded is not by itself, a compelling reason to overturn the death penalty."

Lewis' appeal to the U.S. Supreme Court is further complicated by Virginia law that sets execution dates before the Supreme Court decides whether it will take a case.

Lewis is scheduled to die on September 23rd, and under normal circumstances the high court would only consider her case on September 27th. Rocap has filed an emergency application asking the Court to suspend her execution until the court can decide whether to take the case.

There are currently 61 women on death row. Only 12 have been put to death since 1976.

James Causey, a member of the Milwaukee Journal Sentinel editorial board posts, "Killing Teresa Lewis is wrong."

Out of more than 1,200 executions since the U.S. Supreme Court reinstated capital punishment in 1976, only 11 women have been executed and out the more than 3,200 inmates on death row nationwide only about 50 are women.

I bring these numbers up because a lot of you are quick to say “kill them” or “that’s why we need the death penalty”. If this woman’s IQ is 70, and she is not able to make out a basic list, is there anyone out there who believes that she masterminded these killings?

I don’t think she did. I believe she was manipulated. That’s not to say that she should be released from prison. I don’t think she should ever get out because she was a part of these crimes. But I don’t think she should be killed because there are too many questions about her mental stability.

To move ahead with this is like saying its OK to kill the mentally ill. If I can bring this a bit closer to home, at the Mental Health Complex, one inmate who committed various crimes – from attacking staff to allegedly having sex and impregnating a fellow mentally retarded patient – was caught in limbo between being negligent for his crimes to being not guilty because he could not be held responsible.

Mental illness is a serious problem in this country that must be addressed but I don’t think you solve the problem by executing people who suffer from it.

Supporters of Lewis have established the Save Teresa Lewis website.  Earlier coverage of her case begins with this post.

More on Teresa Lewis

"Teresa Lewis, Mentally Disabled Woman, To Be Executed In Virginia This Month," is the title of Laura Bassett's post at Huffington Post.

Teresa Lewis, a borderline mentally retarded woman charged with "masterminding" the murder of her husband and stepson in 2002, is slated to be the first woman in almost a century to be executed in Virginia this month.

Lewis, 40, pleaded guilty to hiring two men, Matthew Shallenberger and Rodney Fuller, to murder her husband and stepson so that she could collect a $350,000 life insurance policy. Both triggermen were handed life sentences, but Judge Charles Strauss gave Lewis the death penalty, reasoning that she was "clearly the head of this serpent."

Since the 2002 verdict, new evidence about Lewis and the gunmen has emerged that raises questions about whether she was fairly sentenced and whether, after already having lost one appeal, the Supreme Court should reopen her case.

And:

Lewis' pro bono defense lawyer, James Rocap, told HuffPost that Lewis' behavior on death row has been exemplary and that he hopes Gov. Bob McDonnell (R) will consider that when he reviews her petition for clemency.

"This is one of the better examples of what is wrong with the death penalty," he said. "Up until October of 2002, Teresa had no record of any violent conduct at all. Since she went to prison, she has been not only a model prisoner, but she has a huge amount of remorse and has developed a prison ministry under very harsh conditions. She can't recreate with anyone, she can't hold anyone's hand, play cards with anyone, and so on. Because of the death penalty in Virginia, we have a remarkable individual who did not have any violent record at all being judged on her participation in one event in one day of her life."

Earlier coverage of her case begins with this post.

Teresa Lewis' Execution Date in Virginia

"Unfit for Execution," is the title of Lynn Lichtfield's My Turn column at Newsweek.  Litchfield was chaplain at Virginia's Fluvanna prison from 1998 to 2009.

For six years, I regularly spent an hour talking and listening through a small slot in a metal door. On the other side was the only woman on death row in Virginia, an inmate who pleaded guilty to hiring two men to kill her husband and stepson, allegedly in exchange for a cut of the insurance money. Sometimes I was allowed to sit in a chair as I stooped down to hear her, give her communion, or just hold her hand; usually I alternated between half-squatting or kneeling on the concrete floor. As chaplain at Virginia’s only maximum-security prison for women, I expected to minister under challenging circumstances. These visits were unbearable, however, and not because of the physical conditions. It was my feeling—at first fleeting, now certain—that this woman doesn’t deserve to die.

On Sept. 23, barring the governor’s unlikely pardon or the Supreme Court taking her case, Teresa Lewis will die in the electric chair or by lethal injection (she hasn’t chosen). She lost a federal appeal earlier this summer, putting her in line to be the first woman the state has killed in 98 years—and the 12th nationally since the high court reinstated the death penalty in 1976.

And:

Also disclosed since Teresa’s original trial: a 2003 letter from one of the two men who carried out the killings admitting that it was he, not she, who masterminded the murders. Still, the state Supreme Court, a U.S. District Court, and, most recently, a U.S. Court of Appeals, have upheld the ruling that Teresa deserves to die. The actual killers got life in prison.

Last year, as Teresa’s prospects receded, I left the prison ministry. On the inside, I was forbidden from speaking out. Now I can help her cause.

In his Ethical Life column for the La Crosse Tribune, Richard Kyte writes, "Why capital punishment is unethical."

In my last column I referred to the case of Teresa Lewis, a woman currently on death row in Virginia, as an example of the sort of punishment that we ought to find morally outrageous. I did not offer any reasons to support that claim, however, since the main point of that column was to look at how we make cross-cultural moral judgments. In the present column I turn to the topic of capital punishment explicitly, in order to examine its moral status.

And:

Character: Here we come to the crux of the issue. The reason capital punishment has so much support in this country is that it is motivated by vengeance. And that is certainly understandable. When I imagine myself in the position of a victim or victim’s family, I want to see the perpetrator punished severely. Any person would. But the state is not a person. The obligation of the state is not to see that vengeance is satisfied, but that justice is carried out. It has to ensure that both the investigation and the prosecution of a crime is carried out dispassionately, reliably and fairly.

Earlier coverage of her case is here.

Virginia Roundup

There is news of death row conditions changing in Virginia, as well as a rare execution date for a female offender that is sure to draw national attention.

"Virginia cuts out face-to-face visits on death row," is the title of Dena Potter's AP report via the Washington Post.

Terri Steinberg used to take solace in knowing that her son on Virginia's death row would get to hug a family member every other month. Soon, even putting her hand up to his on the glass partition during visits will be a thing of the past.

Beginning Sept. 1, the state Department of Corrections will become only the second in the nation to require all death row visits be done via video conference. Corrections officials say the new policy will be less intrusive on visitors, less labor-intensive on staff and could lead to expanded visitation opportunities.

The prison system banned contact visits for death row inmates three years ago. Moving to video visits is just a "cruel and unnecessary" way to penalize those who already are facing the state's ultimate punishment, said Steinberg, whose 29-year-old son Justin Wolfe is on death row for a murder-for-hire scheme.

"It's an assault to the families as well as to the inmates," Steinberg said.

Of the nation's 35 death penalty states, Kansas was the first to require that visits with death-row inmates be conducted by video conference. A dozen states allow contact visits, while 21 others require visitors to be separated by a glass partition. In Ohio, visitors are separated by glass, but there is a slot that allows inmates and visitors to hold hands.

Advocates question the move away from contact visits.

"The fact that these people are on death row and are very likely going to lose their life at some point, to then punish them by taking away the few positive things in their life is just terrible policy and very inhumane," said Claudia Whitman, director of the National Death Row Assistance Network for Citizens United for the Rehabilitation of Errants.

And:

Kansas started using video visitation seven years ago and is now in the third generation of the technology. At first, there were "significant issues" with the quality of the video and audio, but that has vastly improved, Miskell said.

Officials in both states say the policy is about security, not about trying to save money.

"We were not seeking to cut down on the number of staff, but rather to more effectively utilize those staff while achieving enhanced security," Miskell said.

In Virginia, the new video-visitation system cost about $550,000, and there will be additional technical support costs, Traylor said.

Opponents of the change questioned spending money for a new system in tight budget times. Since 2002, millions in budget cuts have forced the department to close eight Virginia prisons and cut nearly 2,300 positions.

The Guardian's Alex Hannaford writes, "The cruel and unusual punishment of Teresa Lewis."  It's his latest column.

On 23 September, 40-year-old Teresa Lewis will become the first woman to be executed in the state of Virginia for almost a century. She'll also be the first woman put to death in the US since 2005. Considering that, in the intervening five years, around 220 men will have been executed, it puts it into perspective: executing women is unusual. Of more than 1,200 executions carried out since the US supreme court reinstated capital punishment in 1976, only 11 were of women. And each time that happens, it's stunningly bad PR for an increasingly unpopular facet of the American justice system.

The facts of the Lewis case are fairly gruesome. In 2002, she was convicted of persuading two men to kill her husband and stepson to collect a $250,000 life insurance policy. In return, she promised them a portion of the money, and sex with her and her 16-year-old daughter.

Lewis pleaded guilty. So you might think that this is a cut-and-dried death penalty case.

And:

In the eight years Lewis has been on death row, she is said to have been a model prisoner. But on death row, good behaviour counts for nothing. In a month's time, she will become the first woman executed in Virginia since 1912.

Executing men has become routine – most of the time, the deaths warrant only a small mention in the local newspaper. But Lewis's execution will, it is to be hoped, once again draw worldwide attention to the fact that the United States is on the roll call of countries with the less-than-salubrious distinction of carrying out the highest number of executions, along with China, Iran, Saudi Arabia, Pakistan, Congo, Egypt and Iraq – states with which the US perhaps ought to feel a little uneasy being compared.

And later this year, there's a good chance that a British passport holder, 51-year-old Linda Carty, will join Lewis. I have written about Carty before: her trial was seriously flawed, and if, like Lewis, she is also given a 2010 execution date, it will draw even more attention to the US's dire record on capital punishment.

Richard Dieter, executive director of the Death Penalty Information Centre, told me that because of juries' reluctance to dish out death sentences these days, it's fair to assume that if Teresa Lewis was in court today, she probably wouldn't be sentenced to die. "Particularly in Virginia," he said. "There was just one death sentence in that state last year, and to say Lewis is the worst of the worst is a stretch. Given the mitigating evidence and the fact the shooters got life sentences, it strikes you as unfair in the way it played out."

Attorneys Examine Charging Decisions in Ohio County

Today's Toledo Blade reports, "Attorneys question capital-punishment decisions."  It's written by Erica Blake.

After sifting through hundreds of criminal cases in 44 boxes of records, Anthony Belton's defense attorneys say they believe they have enough evidence to warrant questioning the Lucas County Prosecutor's Office about how it determines which defendants face the death penalty.

Attorney Pete Rost said during a hearing yesterday in Common Pleas Court that a review of public records showed that only 26 of the 66 cases that could have been prosecuted as death penalty cases in the past 13 years in fact led to indictments as capital cases. He said that left 40 cases in which felony murder specifications existed but the prosecutor's office did not pursue the death penalty.

The information was gathered in support of a motion filed by the defense asking to dismiss death-penalty specifications attached to Mr. Belton's charges. He is charged in the 2008 shooting death of a BP convenience store clerk during an apparent robbery.

"There are not only one or two cases but going back 13 years, there are at least 40 cases … that resulted in indictments that could be death cases but weren't," Mr. Rost argued. "… We believe that the defense passes at least the first part of the burden and therefore should be able to question whoever the prosecutor's office deems best about how these cases are chosen."

And:

Judge Ruth Ann Franks asked that each side supply supplemental information before she decides whether a hearing should take place in which Prosecutor Julia Bates would take the witness stand to answer questions about the decision-making process in death penalty cases.

Ohio Governor Commutes Death Sentence - UPDATED

UPDATE -- The, "Governor's Statement on Parole Board Recommendation Regarding Richard Nields," has been released.  Here's an extended excerpt:

"On May 10, 2010, a majority of the members of the Ohio Parole Board recommended that Mr. Nields be granted a commutation of his death sentence to a sentence of life in prison without the possibility of parole.  The Parole Board majority cited three basic reasons for its recommendation:  the medical testimony of Dr. Shrode, which was relied on at trial by the prosecutor and the trial judge but subsequently called into substantial question; the dissent of Justice Pfeiffer to the Ohio Supreme Court decision upholding Mr. Nields' conviction; and the concerns expressed by the Judges of the United States Court of Appeals for the Sixth Circuit who affirmed Mr. Nields' conviction but noted that "the circumstances of this case just barely get Nields over the death threshold under Ohio law."
 
"In making my determination regarding Mr. Nields' clemency application, my staff and I have reviewed the judicial decisions regarding Mr. Nields' conviction, Mr. Nields' application for executive clemency and its appendix, and arguments presented for and against clemency at the Parole Board hearing regarding his application for executive clemency.  We also reviewed institutional records and letters received in the Governor's Office regarding this matter, the Parole Board's report and recommendation, and the exhibits presented at the Parole Board's hearing.  In addition, we have reviewed the materials submitted to the Governor's Office by Mr. Nields' counsel after the Parole Board made its recommendation.
 
"Based on this review, I concur with the rationale and recommendation of the Ohio Parole Board majority and have, therefore, decided to commute Mr. Nields' sentence to a term of life in prison without the possibility of parole."

"Ohio governor grants clemency to condemned killer," is the title of Andrew Welsh-Huggins AP report, via Google News.

In a rare gesture, Gov. Ted Strickland on Friday spared an inmate who was scheduled to be executed next week, citing court decisions that questioned the death sentence and problems with trial testimony.

Strickland announced he was granting clemency to Richard Nields, who strangled his girlfriend in 1997 during an argument in suburban Cincinnati.

Strickland, a Democrat, said he made the decision after reviewing Nields' case, previous court rulings and last month's recommendation by the Ohio Parole Board that Nields be spared.

"Based on this review, I concur with the rationale and recommendation of the Ohio Parole Board majority," Strickland said.

The state has executed 14 men since Strickland, a Democrat, took office in 2007.

The parole board has recommended mercy for inmates three times under Strickland. He has followed the board's recommendation twice.

He overrode the board in 2009 and allowed Jason Getsy to be executed. He also spared John Spirko in 2007 despite recommendations by the board under Strickland's predecessor that Spirko be executed.

Nields' attorneys applauded Friday's decision.

"A death sentence should be reserved for the worst of the worst cases," said federal public defender Carol Wright. "The facts of Richard's case were never the worst of the worst."

Alan Johnson writes, "Strickland grants clemency to killer," for the Columbus Dispatch.

The Parole Board concluded, and Strickland agreed, that medical testimony in Nields' original trial was unreliable. Both also cited a strong dissent in the case by Ohio Supreme Court Justice Paul E. Pfeiffer and concerns expressed by the 6th U.S. Circuit County of Appeals which said Nields' crime "just barely" got him over the threshold in Ohio's capital punishment law.

Hamilton County Prosecutor Joseph Deters strongly criticized the clemency recommendation, calling it improper second-guessing of decisions made by jurors and courts years after the fact.

Earlier coverage of the case begins with this post; disputed forensics in the case, here.  The Ohio Supreme Court Chief Justice's recent call for a review of the state's death sentences is noted here.  Related posts are in the clemency index.

More on the Ohio Review Proposal

"Should all death row inmates be there?" is the title of Sharon Coolidge's report in the Cincinnati Enquirer.

Supreme Court Justice Paul E. Pfeifer helped write Ohio's death penalty law in 1981, lifting the moratorium on state-sanctioned killing.

Now, with 29 years perspective and 160 killers sitting on Ohio's death row, Pfeifer is asking: should everyone on death row be on death row?

Pfeifer, a Republican running for re-election unopposed, is calling for the creation of a commission to review all death row cases.

The commission would determine whether anyone should be spared death and given a life sentence with no chance for parole.

It also would make clemency recommendations to the governor, the only person who can grant clemency.

Pfeifer suggested it be convened after the November election in an effort to take politics out of the decision-making process as much as possible.

"I think it's highly improbable that all 160 folks on death row will be executed," Pfeifer said. "Seems to me, the sooner somebody takes a look at this in a fashion that gives the governor some political cover, the better."

Pfeifer's suggestion comes on the heels of the state parole board's recommendation that Gov. Ted Strickland grant clemency to Richard Nields, who has been on death row 12½ years.

Nields, 60, of Springfield Township, was convicted in Hamilton County for the March 27, 1997, beating death of 59-year-old Patricia Newsome, who had broken off their long-term relationship.

Strickland's decision on Nields is pending, but it has to come before June 10 - when Nields is scheduled to be put to death.

The Ohio Supreme Court upheld the execution, but Pfeifer dissented, saying Newsome's murder did not fit the type of aggravated murder intended when the death penalty was reinstated.

And:

Pfeifer said there has been a dramatic drop in the number of people put on death row.

Across the state last year, only one person was sentenced to die.

This year so far two people have been sentenced to death, both out of Hamilton County, both convicted of killing more than one person.

Compare that to the '90s, when the number twice reached double digits.

"That tells us something about the changing attitude of both our prosecutors and our citizens," Pfeifer said.

In the early 1980s, Pfeifer, then a state senator, was one of three Republican senators who revived the death penalty.

Pfeifer, 67, whom the Ohio Judicial Center describes as the kind of justice who keeps in mind how the court's decisions affect people seeking justice, is in his third term on the Ohio Supreme Court.

So far this year, Ohio has executed five people. Six more executions are scheduled - one per month through November.

That could break the 2004 record of seven executions. Texas is the only state that has executed more people this year than Ohio, with seven.

"I doubt very many people in Ohio want to execute people at the same rate as Texas," Pfeifer said.

"That is not something we necessarily should be proud of."

In the last seven years, the parole board has recommended clemency four times. It's been granted three times, including to two Hamilton County killers.

Earlier coverage of the proposal begins here.

More From Ohio

Today's News-Herald of Northern Ohio carries the editorial, "Details needed for death row review."

If one Ohio Supreme Court justice has his way, the line waiting on death row may get a little shorter.

Justice Paul Pfeifer, who played a major role in resurrecting Ohio’s death penalty law nearly 30 years ago, said the state has a backlog of old cases. Many of those would not have resulted in a death sentence had they been tried under current law, which gives juries the option of imposing a life sentence without the possibility of parole, he said.

Ohio has 161 inmates on death row and is on pace to execute a state record 11 inmates this year. Five have already been executed this year, and thus far two are scheduled for 2011.

Pfeifer, a Republican who’s running unopposed for re-election, believes all death row cases should be reviewed to see which ones warrant execution and which ones should be commuted to life in prison without parole.

When he helped resurrect Ohio’s death row law back in 1981 as a state senator, Pfeifer included a life without parole option but the Ohio House refused to go along. The state has since given juries that option.

We’re not opposed to a review of the cases, but before we can give our full stamp of approval, we feel more information is needed.

Earlier coverage of Justice Pfeifer's proposal is here.

Ohio Supreme Court Justice Calls for Review of All on State's Death Row

"Death Row cases should be reviewed, justice says," is the title of Alan Johnson's report.  It appeared in Saturday's Columbus Dispatch.

The "father of Ohio's death penalty," Supreme Court Justice Paul E. Pfeifer, says all current Death Row cases should be reviewed to see which ones warrant execution -- and which should be commuted to life in prison without the possibility of parole.

"There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas," Pfeifer told The Dispatch. His comments came the day after the lethal injection of Michael Beuke, the fifth Ohioan executed this year and the 38th since 1999.

"When the next governor is sworn in," Pfeifer said, "I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases.

"The only reason we have a death penalty is society demands retribution. ... I never made the argument that it was a deterrent. You can't prove it with numbers."

Pfeifer, a Supreme Court justice for the past 17 years, was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court.

At the time, Pfeifer included a life without parole option in the law, but the Ohio House refused to go along.

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free.

"The point is whether or not death is the appropriate penalty," he said.

Pfeifer said the majority of the old cases, had they been tried today under current law and societal standards, would not have resulted in capital punishment.

"The number of people we have accumulated on Death Row has been rather staggering," he said. "It's improbable that all of those folks are going to be executed."

With a high number of executions and relatively few new death sentences being handed out (one last year), Death Row has shrunk nearly 21 percent in Ohio, from a high of 203 prisoners in January 2002 to the current 161.

Six more executions are scheduled this year, and two have been set for 2011.

Ohio Public Defender Tim Young called Pfeifer's suggestion "a tremendous idea, one we would greatly encourage."

The AP post is, "Justice urges review of Ohio capital cases," via the Fort Wayne Journal Gazette.

Ohio’s staggering number of death row cases ought to be reviewed to determine which ones really warrant execution, a longtime state Supreme Court justice said.

Justice Paul Pfeifer, who played a major role in resurrecting Ohio’s death penalty law nearly 30 years ago, said the state has a backlog of old cases. Many of those would not have resulted in a death sentence had they been tried under current law, which gives juries the option of imposing a life sentence without the possibility of parole, he said.

“There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas,” Pfeifer said.

Ohio has 161 inmates on death row and is on pace to execute a state-record 11 inmates this year.

Pfeifer, a member of the state’s highest court for 17 years, said all death row cases should be reviewed to see which ones warrant execution and which ones should be commuted to life in prison without the possibility of parole.

A message seeking comment was left Saturday with a spokeswoman for Attorney General Richard Cordray.

Pfeifer was one of three Republican state senators who resurrected Ohio’s death penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court. At the time, Pfeifer included a life without parole option in the law, but the House refused to go along. The state has since given juries that option.

Earlier coverage from Ohio on the pace of executions is in this post.

Proportionality Review Retained in Georgia

"Death-penalty review still part of Georgia law," is the title of Bill Rankin's report in today's Atlanta Journal-Constitution.

In a surprise turnaround, the state Senate on Tuesday voted to retain the so-called proportionality review for death-penalty cases after a key lawmaker said its removal would make the state's capital punishment law vulnerable to a legal attack.

Sen. Seth Harp (R-Midland) told fellow senators that if the requirement were removed, it would prompt new appeals and cause delays of five to 10 years before death sentences can be carried out.

"It'll give the lawyers who defend these creatures a whole ‘nother round of appeals," he said.

The proportionality review, conducted by the Georgia Supreme Court in every death-penalty appeal, is intended to guard against the possibility of a capital sentence being arbitrarily imposed.

Sen. John Wiles (R-Kennesaw) supported the review being removed, noting Georgia is the only state that has such a review required by law. The review's removal would mean less work for the state Supreme Court, which has not overturned a death sentence on proportionality grounds since 1981, he said.

And:

The provision to strip the review from state law had been attached to House Bill 323, which would give the Georgia Supreme Court more time to decide whether it should hear a death-penalty appeal. After the Senate Judiciary Committee recently approved H.B. 323, Harp, chairman of the panel, said he supported removing the review from state law. On Tuesday, Harp had reversed course. He told his Senate colleagues if they supported the death penalty they should vote for his amendment to remove the proportionality review provision from the bill so the review remains a part of state law. It passed overwhelmingly.

When conducting its review, the state Supreme Court upholds a death sentence if it can find capital sentences handed down in similar murder cases to show the death sentence being affirmed is not disproportionate or excessive. The court's review has been criticized for being cursory because the justices typically do not compare a death sentence with other similar cases that resulted in life sentences.

Earlier coverage of the issue begins with this post.

Proportionality Review in Georgia

"Proposal said to make Georgia death statute vulnerable to attack," is the title of Bill Rankin's report in today's Atlanta Journal-Constitution.

Legislation moving through the General Assembly that would strip a key safeguard from Georgia’s death-penalty law could make the statute vulnerable to constitutional attack.

Last week, the Senate Judiciary Committee voted to remove the so-called “proportionality review” from state law. The review, conducted by the Georgia Supreme Court in every death-penalty appeal, is intended to guard against the possibility of a capital sentence being arbitrarily imposed.

If the Legislature removes the review from Georgia law, there will be multiple challenges that seek to declare the state’s capital punishment law unconstitutional, predicted Jerry Word, interim head of the state's capital defender office. "It's my belief it puts the constitutionality of the statute in serious jeopardy," he said.

Brian Kammer, executive director of the Georgia Appellate Practice and Educational Resource Center, which handles death-row appeals, agreed.

“The review was a bulwark against arbitrary and random infliction of the death penalty,” Kammer said. “The U.S. Supreme Court relied on this provision when affirming the constitutionality of the death penalty in 1976.”

Senate Judiciary Committee Chairman Seth Harp (R-Midland), who supports removing the requirement, said he believes the state Supreme Court would continue to conduct the review even if it is no longer required under Georgia law.

“I don’t think any death penalty could be effectively completed with an execution without a proportionality review,” he said. “The fact that we had it in the statute is redundant.”

And:

The move to strip the court of its obligation to conduct the review was attached to House Bill 323, an uncontroversial piece of legislation sponsored by House Speaker David Ralston (R-Blue Ridge) that would give the state Supreme Court more time to consider pretrial appeals in death-penalty cases.

On Monday, Ralston said through a spokesman that he would not agree to removing the proportionality review from state law. The speaker “feels that this change greatly jeopardizes the future of this legislation because it weakens the constitutionality of Georgia’s laws,” Ralston spokesman Marshall Guest said.

For HB 323 to become law in its current form, it must still pass the full Senate and the House and be signed by Gov. Sonny Perdue.

Proportionality reviews were made part of the state’s death-penalty law in 1973, a year after the U.S. Supreme Court, in the landmark case Furman v. Georgia, declared capital punishment unconstitutional on grounds it violated the Eighth Amendment's guarantee against cruel and unusual punishment.

Also:

In a series published in 2007, The Atlanta Journal-Constitution found that, in its reviews, the court was citing capital cases that had been overturned on appeal. Since that series, the state Supreme Court has not cited an overturned case in a proportionality review when upholding a death sentence. The court has not reversed a death sentence on proportionality grounds since 1981.

In October 2008, U.S. Supreme Court Justice John Paul Stevens strongly criticized the court’s proportionality review, calling it “utterly perfunctory” because the court typically only compares a death sentence with other similar death sentences, not with similar murder cases that resulted in life sentences.

More on Georgia's proportionality review begins with this post.

Earlier coverage of the Georgia legislation is here; related articles are in the proportionality category index.

State Legislative Roundup

The State Column posts, "Death Penalty Legislation Under Review in a Number of States."

Both Connecticut and Georgia are proposing changes to laws governing the death penalty reflecting a growing trend in state politics.

In Georgia, the Senate Judiciary Committee on Thursday voted to strip a so-called “proportionality review” from the state’s death-penalty statute. In Connecticut, the state legislature will most likely revive an effort to ban capital punishment, and two leading Democrats running for governor in November say they would not have vetoed a bill to ban executions, as the state’s Republican governor did.

In the state of Georgia, the issue is over a proportionality review, which legal experts have called a critical part of the state’s capital punishment law. The review is meant to ensure that capital cases are not imposed arbitrarily and is conducted by the Georgia Supreme Court. In its review, the court compares a death sentence to punishment in other cases to ensure a capital sentence is not excessive or disproportionate. In other words, the state court provides a second pair of eyes.

In the state of Connecticut both chambers of the legislature passed a bill essentially eliminating the death penalty, but the bill was later vetoed by the governor. State gubernatorial candidates are now weighing in on the debate. Democrat Dannel Malloy said he would have signed the law Ms. Rell vetoed. He noted that Connecticut has had four cases in recent years in which convicted felons were found innocent after spending years in prison, though not on death row.

“I don’t believe government should be putting people to death,” Malloy said. “I believe that it’s time for Connecticut to join ranks with the overwhelming majority of the industrialized world and outlaw the death penalty.”

Ned Lamont, a Democrat who led Malloy 28 percent to 18 percent in a recent Quinnipiac poll, also would not have vetoed the death penalty ban, according to spokeswoman Justine Sessions. And Mary Glassman, another Democrat running for governor, said she also supports repeal.

On the opposing side, Republican candidates Oz Griebel, Lt. Gov. Mike Fedele and Tom Foley, who led in a poll among Republicans, said they support the death penalty.

In Connecticut, the Hartford Courant carries the AP report, "Connecticut atty hoping for anti-death penalty gov."

An attorney for a Connecticut man charged with killing a woman and her two daughters in a home invasion is hoping a new governor will abolish the death penalty.

As it happens, the state legislature will most likely revive an effort to ban capital punishment and two leading Democrats running for governor in November say they would not have vetoed a bill to ban executions as Republican Gov. M. Jodi Rell did.

On the other hand, leading Republican candidates favor the death penalty and a political expert says the criminal case is so notorious, it could strengthen support for a candidate who favors capital punishment.

Still, Thomas Ullmann, attorney for Steven Hayes, says in a letter to prosecutors that there's a "realistic probability" the next governor will sign a law banning executions.

Hayes, 46, and co-defendant Joshua Komisarjevsky, 29, are accused of breaking into a Cheshire home in 2007, beating Dr. William Petit, tying his two girls to their beds and holding the family hostage before strangling Jennifer Hawke-Petit and setting the house on fire. Eleven-year-old Michaela and 17-year-old Hayley died of smoke inhalation.

Hayes and Komisarjevsky have repeatedly offered to plead guilty in exchange for life sentences, but prosecutors have rejected the offers, their attorneys say. New Haven State's Attorney Michael Dearington has declined to comment.

Gary Rose, a politics professor at Sacred Heart University who lives one mile from the crime scene, predicts Hayes' trial in September will be a stark reminder to voters of the horror of the crime and could wind up swaying some undecided voters to vote for a candidate who supports the death penalty.

And:

In practice, Connecticut is not among states that carry out executions with any regularity. Only one person has been executed since 1960, convicted serial killer Michael Ross, and he waived his appeals before he was put to death in 2005. Some inmates are on death row for crimes that go back to the 1980s.

"I don't think anyone is ever going to be executed in Connecticut no matter what," said Rep. Michael Lawlor, co-chairman of the General Assembly's Judiciary Committee and an opponent of the death penalty. "It's almost impossible to make it happen in Connecticut."

Kim Harrison, a lobbyist for the United Church of Christ who has fought to repeal the death penalty, said she is watching the governor's race and various state Senate races. She said she's concerned some solid supporters of a repeal are either retiring or running for other offices.

Related posts are in the state legislation and politics indexes.

Missouri Justices Split on Proportionality Review Standard

"Missouri Supreme Court overturns Lyons' death sentence, upholds Deck's," is the title of David Lieb's AP report, via the Springfield News-Leader.

The Missouri Supreme Court on Tuesday overturned the death sentence of a man it determined was mentally disabled. But judges revealed they are split on how to decide whether death sentences are appropriate.

The high court unanimously overturned the death sentence of Andrew Lyons for the 1992 slaying of his estranged girlfriend in southeast Missouri after concluding he was ineligible for execution because he is mentally disabled.

In a separate case, the court unanimously upheld the death sentence of Carmen Deck for the double murder of an eastern Missouri couple in 1996. But in doing so, the seven-member court issued three separate opinions as to how it should review whether the death sentence is an appropriate punishment for a crime.

In Lyons' case, the Missouri court pointed to a 2002 U.S. Supreme Court ruling barring the mentally disabled from being executed. The state Supreme Court affirmed the recommendations of a special master it had appointed to determine Lyons' mental capacity. It concluded he had an IQ in the range of 61-70 -- just below what it said was the threshold for significantly below-average intelligence.

And:

Deck was convicted of murder and sentenced to death for the fatal shootings of James and Zelma Long during a robbery of their home near De Soto. His two death sentences were twice overturned -- most recently by the U.S. Supreme Court in 2005 because he had been shackled in the presence of jurors. But at a third re-sentencing hearing, Deck again received two death sentences.

The Missouri Supreme court upheld those sentences Tuesday. But judges split over how to apply a more than 25-year-old state law requiring them to consider whether a death sentence is excessive or disproportionate to the penalty imposed in similar cases.

Judge Zel Fischer, who wrote the main opinion, said the "proportionality review is designed to prevent freakish and wanton application of the death penalty" and that judicial precedent only requires the court to make a comparison to other death penalty cases. Fischer was joined on that point by Chief Justice William Ray Price Jr. and Judge Mary Russell.

But Judge Laura Denvir Stith -- in an opinion joined by judges Richard Teitelman and Michael Wolff -- said state law requires the Supreme Court to also consider similar cases in which defendants received life sentences.

In a third opinion, Judge Patricia Breckenridge said she agreed with Fischer that the "proportionality review" is intended to correct only the most "aberrant death sentences" but agreed with Stith that the review also should consider cases involving life prison sentences.

Regardless of the review standard, all the judges said Deck's death sentence was appropriate.

The Missouri Supreme Court opinions are here; summary, here.  Related posts are in the proportionality index.

Also from Missouri, "Koster seeks execution dates for convicted killers," an AP report via the Columbia Missourian.

Missouri's attorney general on Tuesday asked for execution dates for a white supremacist who killed people in several states and for a stalled motorist who killed the man who helped him.

Attorney General Chris Koster asked the state Supreme Court to set execution dates for Joseph Franklin and Allen Nicklasson after a federal appeals court last month cleared the way for Missouri to resume scheduling executions by rejecting a lawsuit from eight inmates over the training and competence of the state's execution team.

And:

Attorney Jennifer Herndon, who is representing both men in separate cases, said further appeals are likely.

"Missouri AG Seeks Execution Dates for Neo-Nazi Mass-murderer, Good Samaritan-killer," is the staff report from today's Kansas City InfoZine.

The US Court of Appeals for the Eighth Circuit had put Missouri's death-penalty protocol on hold while it reviewed certain facts in Clemons v. Crawford. Their ruling denying rehearing December 22, 2009, cleared the way for several Missouri cases to move forward, including these two.

Related posts are in the lethal injection category index.  Earlier coverage from Missouri is here and here.

Deeper Look Shows Even More Cases of Unequal Justice

That's the title of John Seigenthaler's followup article in the Sunday edition of the Tennessean.  LINK

A news story published here Dec. 20 under my byline reported critically on the striking differences in sentences that state judges and juries gave three Tennessee women convicted of killing their abusive husbands.

Further research makes it clear that the article failed to deal in adequate depth with the question of whether penalties handed down in such cases by Tennessee courts reflect what Judge Richard S. Arnold of the U.S. Court of Appeals called "the reality and perception of equal justice."

A review of the disparate levels of punishment the courts dispensed in these and six similar cases over the last quarter-century makes the point:

• Two of the nine cases resulted in the killers being granted full probation — one after a new trial and the other after 67 days in a mental health facility.

• One of the cases resulted in a life sentence being commuted to 18 months and probation.

• Another resulted in a prison term of 15 years and early parole.

• Four of the cases resulted in life sentences. Two of these women were freed on parole; the others are entitled to parole hearings.

• Only one woman was sentenced to death. Gaile Owens' court appeals were exhausted last month, and the Tennessee Supreme Court soon will set the date for her death.

In all nine cases, the murders were brutal. In four of them, wives arranged for hit men to kill their husbands. In all but one of the cases, defense lawyers, either during trial or on appeal, presented evidence that the wives had endured physical or emotional abuse from their spouses. In at least half the cases, defense lawyers sought to prove that the killers suffered from battered woman syndrome — a condition the courts have defined as "a female who is the victim of consistent, severe domestic violence."

David Raybin, a criminal defense lawyer and former prosecutor — who convicted the killer in one of the nine cases and successfully defended the killer in another — believes that the pattern of inconsistent sentencing may have resulted from the failure of some defense lawyers to effectively present battered woman syndrome testimony. Court records seem to document that.

Seigenthaler's original article, "The uneven hand of justice in TN murders," was noted here last month.

Proportionality Questions in Tennessee

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

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

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

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

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

Court documents in the separate cases recite the similarities:

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

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

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

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

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

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

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

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

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

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

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

Clemency in Ohio

"Governor grants clemency to 78, none on death row," is Julie Carr Smyth's AP report via the Akron Beacon Journal.

Ted Strickland on Monday granted clemency to 78 inmates, none on death row, after a painstaking review of three years of requests extending into his predecessor's term.

Sixty-eight people, most of whom had already served their time, were granted pardons. Sentences for 10 people were commuted; most of them are still behind bars and expecting release.

Among those receiving commutations is a Toledo gang member, Willie Knighten Jr., whose judge openly expressed second thoughts about his conviction. Knighten, 37, had written more than 100 letters to authorities insisting on his innocence since he was convicted of murder in 1996. He has served 12 years in prison.

Karla Hall, staff attorney at the Ohio Innocence Project, said she was delighted to hear Knighten's sentence had been commuted.

''I'm thrilled for Willie and think he will absolutely become a great citizen. He has a great deal of family support behind him,'' she said. ''I would be completely comfortable if he moved in as my next-door neighbor.''

Strickland, a former prison psychologist, said he personally reviewed all 296 clemency applications. He estimated that he, chief legal counsel Kent Markus and staff members put in 1,000 hours reviewing the requests, made between 2005 and 2007.

Of 63 clemency requests from 2005 and 2006 and lingering from the administration of Gov. Bob Taft, Strickland denied 30 and granted clemency 33 times — 29 pardons and four commutations.

Of 233 clemency requests from 2007, he denied 188 requests and granted clemency 45 times — 39 pardons and six commutations.

Strickland agreed with the recommendations of the Ohio Parole Board 267 times out of 296, or 90 percent of the time. He disagreed 16 times with board recommendations to grant clemency, and disagreed 13 times with its recommendations to deny clemency.

And:

In January 2008, Strickland commuted the death sentence of convicted murdered John Spirko to life in prison. Spirko maintained he did not kill postmistress Betty Jane Mottinger in 1982, and the lack of physical evidence linking Spirko to the murder left the governor with ''slim residual doubt.''

Strickland now turns to 177 cases recommended for clemency in 2008 by the parole board, then to 226 requests made this year.

Alan Johnson writes, "Strickland frees killer he says is innocent," for today's Columbus Dispatch.

Nearly three years into his administration, Gov. Ted Strickland yesterday released nearly 300 clemency decisions, freeing a Lucas County murderer, pardoning a former Chauncey village official on 30-year-old charges, and conditionally pardoning a Columbus lawyer who defrauded his clients of $1 million.

The decisions were the governor's first on more than 700 clemency requests that had gone undecided since the final years of the Taft administration.

Overall, Strickland approved clemency in 78 of the 296 criminal cases (26.3 percent) that he considered, including commuting the life sentence of Willie Knighten Jr., convicted of murder in Lucas County in 1996. Knighten, 37, is scheduled to be released today from the Allen County Correctional Institution, officials said.

"The trial and sentencing judge in Mr. Knighten's case determined that his original finding of guilt was in error and that Mr. Knighten has now served 12 years in prison for an offense he likely did not commit," Strickland said in a statement. The sentencing judge, the late William Skow, sent the governor a letter this year saying he felt he had made the wrong decision in the case.

Strickland, a Democrat in his third year in office, OK'd 33 of 63 cases left over from 2005 and 2006, Gov. Bob Taft's last years in office, and 45 of 233 cases submitted to Strickland in 2006 and 2007.

And:

In a conference call with reporters, Strickland said he and his legal staff spent more than 1,000 hours reviewing the cases.

"I have looked at every one of these cases early and many of them multiple times as I have asked questions and sought additional information."

Strickland said that while he is not worried about critical fallout from the commutations, he acknowledged that his staff is concerned.

"I can think of no quick and easy way to do this," he said. "If it was just a matter of getting a request and rubber-stamping what the parole board said, it would be done rather rapidly. I think my responsibilities are deeper than that."

The vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses.

"In every case, these pardons have been granted to individuals who have completed their entire sentence, usually many years ago. Virtually every case involves an individual who has not re-offended with the exception of traffic violations. The individuals granted pardons today have demonstrated that they have been rehabilitated and have assumed the responsibilities of citizenship," the governor's office said.

"People have become nurses, successful business people, they have obtained master's degree's and bachelor's degrees," he said.Strickland also approved clemency in 10 cases because of what he called "fundamental injustice," or because the sentence was disproportionate to other inmates who committed similar crimes.

The governor has 403 more clemency requests pending from 2008 and this year.

The Springfield News-Sun has, "Governor pardons 68, commutes sentences for 10 others," written by Laura A. Bischoff.

Gov. Ted Strickland on Monday, Nov. 23, granted pardons to 68 Ohioans and commuted the sentences for 10 others, including a Lucas County man who has served 12 years for a murder that the governor and the trial judge believe he likely did not commit.

Strickland said Willie Knighten, 37, who was convicted of murder and attempted murder in 1997, should be released as soon as possible.

“After careful and diligent examination of the totality of the materials available to me, I believe that the sentence imposed upon Willie Knighten was in all likelihood imposed for a crime that he did not commit,” Strickland said.

William Skow, the trial judge in Knighten’s case, wrote an extraordinary letter to the Ohio Parole Board shortly before his death, saying his verdict was wrong.

Strickland also commuted the sentence of convicted killer Sonya Jackson, 48, saying her 20 years to life sentence was excessive.

Out of 296 requests, Strickland denied 218 and granted 78. He still has to decide 403 applications he received in 2008 and this year.

And:

“I’d describe it as a very careful use of clemency powers, based upon the totality of the information we had available to us,” Strickland said.

The Ohio Constitution grants the governor broad powers when it comes to clemency. He can use them to reduce sentences or wipe out criminal records for any offenses save treason and impeachment. This is the first time Strickland has used clemency powers in non-death penalty cases since taking office nearly three years ago.

Commuting sentences of prisoners can sometimes haunt a governor if the offender commits some heinous crime after clemency is granted. It can also invite political charges of being soft on crime.

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

Board of Pardons & Paroles Recommends Commutation in Law of Parties Case

Allan Turner writes, "Board: Commute death sentence in Houston case," for the Houston Chronicle.

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Although Perry has commuted death sentences in accordance with U.S. Supreme Court decisions, only once, in the case of San Antonio killer Kenneth Foster, has the governor commuted of his own accord.

Foster was convicted of capital murder in a law of parties case although he was not the triggerman. His death sentence was commuted in August 2007.

McCann said executing Thompson would neither deter crime or provide retribution.

Governor Perry may accept the Board's recommendation and commute Thompson's death sentence, however, he is not obligated to do so.  He will announce a decision Thursday.

In 2004, the Board recommended that he commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation and Patterson was executed.  As noted by Allan Turner, Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster.

More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

The Death Penalty in Washington State

The Walla Walla Union-Bulletin's series continues with five major articles.  The first installment, an overview published on Sunday, was noted here.

"Dollars add up in capital trials," by Andy Porter, ran in Monday's Union-Bulletin.

Estimating the cost of a murder trial involving the death penalty versus one that does not is a tricky business. But several past studies indicate costs are significantly higher for capital cases.

Nineteen years after the state's current death penalty law was adopted, Washington state Supreme Court Justice Richard P. Guy examined the costs for 25 aggravated murder trials between 1997 and 1999, eight of which involved the death penalty.

Adjusted for inflation, the 17 non-capital trials would cost an average of $163,063 today while the eight capital trials would average $497,398 in 2009 dollars, a difference of about $334,000 each.

That difference was slightly more than costs cited in a 2004 study by Mark Larranaga and Donna Mustard of the Washington Death Penalty Assistance Center.

In that report, the authors said "under one review, an average death penalty trial from 2000 to 2003 costs $432,000, compared to $153,000 for a non-death penalty trial." Adjusted for inflation, this would be $487,572 for a capital trial today compared to $172,681 for a non-capital trial, a difference of about $315,000.

>A third study, done in 2006 by the Washington state Bar Association, concluded "death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel."

In today's dollars, that would be $497,043 extra for a trial involving the death penalty with an added $49,704 to $74,000 for court costs. But the report did not provide an estimate for a non-capital trial, as did the previous two reports.But the authors of the 2006 Bar Association report note that any aggravated murder trial is likely to carry a high price tag whether it involves the death penalty or not.

"Run-up to date with executioner runs up tab, too," also by Porter, also ran Monday

Eight hours before Cal Coburn Brown was scheduled to die, the bill for his execution was more than $75,000 and climbing.

It was a warm late afternoon March 12, a Thursday, and preparations were well under way at the Washington State Penitentiary. Checkpoints were in place at parking lot entrances to search arriving vehicles, areas for pro and anti-death penalty protestors had been readied and remote broadcast trucks were setting up.

Then word came down that the state Supreme Court had granted Brown a stay, bringing things to a screeching halt.

The bulk of the thousands of dollars spent up to that point consisted of the wages and overtime for the Department of Corrections personnel and officers, travel expenses for DOC officials and more than $13,000 for "goods and services," which included extra fencing for protestor areas, portable toilets, expenses for bringing the victim's family to Washington state to witness the execution and other items, said Maria Peterson, DOC spokeswoman.

Peterson said the only way the final bill could be calculated would be if the execution had actually gone off.

For instance some expenses, such as travel expenses for herself and other DOC officials, had already been included in the money spent up to the point the execution was called off while other expenses, especially for wages and overtime, couldn't be calculated because of people going off the clock or back on the clock during the countdown. Any complications in the process would also have added significantly to the final bill.

"Death penalty divides local law enforcers," By Terry McConn was published Tuesday.

Top law enforcement officials in Walla Walla County express differing views when discussing the death penalty — just like most of the nation.

Walla Walla police Chief Chuck Fulton is opposed to capital punishment; College Place Chief Dennis Lepiane is a proponent.

And County Sheriff Mike Humphreys says a public vote on the issue may be in order.

Polls suggest that nationwide, about two-thirds of people support capital punishment, but are split down the middle when a sentence of life without parole is mentioned as an alternative.

And:

Humphreys said the death penalty is expensive, but the desires of victims’ families should weigh heavily into any consideration of abolishing the law.

“I think maybe it should go to a public vote. It’s costing us this much money. Let the people make that decision,” Humphreys said.

Fulton, however, would rather see the Legislature abolish the practice to avoid widespread emotional debate that would arise from an election.

He believes the death penalty just creates more victims. The four executions at the Washington State Penitentiary in past years have resulted in a “carnival atmosphere” that adversely affects penitentiary workers, law enforcement officers responsible for maintaining security and everyone else involved.

“That saddens me about our system,” Fulton said. “I feel sorry for all of those who have to deal with that.”

He added he has “absolutely zero remorse” for somebody who commits murder. “But for the whole of society, I don’t know if the death penalty is truly the answer.

Also:

A survey this year of leading criminologists ranks expanding the death penalty as dead last in reducing violent crime. No. 1? Reducing drug abuse, which makes sense to the local officials.

Humphreys believes 70 to 80 percent of all crimes are related to the use of illicit drugs or alcohol.

“If we’re going to reduce the drug abuse, we’re going to reduce all crimes,” he said. “From thefts to murder.”

"Capital punishment has long history in world, state," ran Wednesday.

Government-sponsored killings date back to hundreds of years before Christ was born.

The Death Penalty Information Center Web site says capital punishment was codified in Babylon in the 18th century B.C. for 25 different crimes. Similar laws were enacted in subsequent centuries in Athens, Rome and Britain.

"Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive and impalement," according to the Web site.

Laws established by European settlers to the new world were mostly influenced by Britain, which by then employed various means to execute perpetrators of any of more than 200 crimes.

And:

The Washington state Legislature addressed constitutional flaws in this state's law that year (1977) by removing the "mandatory" provision and adding a special sentencing procedure for imposing a death sentence

According to a Washington State Bar Association report: "Under this statute, the sentencing jury was asked to determine whether guilt was established by 'clear certainty'; whether aggravating mitigating factors existed; and whether the defendant would commit additional violent acts in the future." Absent any of those findings, the punishment was life in prison without the possibility of parole.

But that law, too, was found lacking -- this time by the Washington state Supreme Court. Justices in early 1981 declared it unconstitutional because it allowed defendants who pleaded guilty to escape the death penalty. The court said that practice "chilled" a defendant's right to trial and created an inequitable sentencing scheme.

The present law was enacted by the Legislature on May 14, 1981.

Hanging remained the primary form of execution until 1996 when the Legislature switched to lethal injection as the default method. Condemned prisoners may choose hanging if they desire.

Washington state has executed 109 people since 1849, according to a database known as the Espy File.

Seventy-seven men (no women) have been put to death at the state Penitentiary since 1904.

Four of the executions have been carried out since the 1981 statute was enacted -- all since 1993.

All but the last two at the prison have been hangings.

"Death penalty a rarity in Washington," is in the current edition of the Union Bulletin.

The death penalty is seldom imposed in Washington state.

Since 1981, more than 7,000 homicide cases have been filed. Only 30 death sentences have been handed down.

That's partially because Washington's death penalty law is narrowly structured. But add to that an appellate court system that historically has been reluctant to allow an execution to take place and it becomes clear why the death chamber at the Washington State Penitentiary has been allowed to gather dust.

A breakdown of the 30 cases is as follows:

Four men have been executed

Eight are on death row.

And 18 (of the 22 convictions or sentences that have completed review) have been reversed by either the state Supreme Court or federal Ninth Circuit Court of Appeals based in San Francisco. That 81 percent reversal rate is about double the national figure of 43 percent, calculated from 1977 through 2004

A 2004 report by the Washington Death Penalty Assistance Center says the reversals "have been attributed to all aspects of the criminal justice system," including constitutionally prohibited errors, judicial errors, prosecutorial and jury misconduct, and ineffective defense counsel.

That partly can be explained by the complicated nature of capital punishment laws in Washington and throughout the country.

The American Bar Association has noted that "death penalty litigation is extraordinarily complex, both for the courts and for the attorneys involved," according to the Assistance Center report. "Not only do the cases incorporate the evidentiary and procedural issues that are associated with virtually every non-capital case, but they also involve a host of issues that are unique to capital cases."

In Washington State

The Walla Walla Union-Bulletin has begun a four-day series on the death penalty. 

SUNDAY - Series overview, a column by Terry McConn and a timeline of the history of executions from 1904 to the present day.
MONDAY - The cost of trials, appeals and executions.
TUESDAY - Opponents and proponents of the death penalty argue their cases.
WEDNESDAY - The death penalty — Then and now.

The extensive overview, by Terry McConn, is titled, "Death penalty hangs in balance as debate heats up."

Few public policies find such staunch supporters and opponents as the issue of capital punishment.

And the debate seems to have heated up in recent months.

Tongues started wagging in the community last December as staff members at the Washington State Penitentiary — for the first time since 2001 — readied for an execution.

Two additional lethal injections were scheduled for March.

“Is it finally going to happen?” enthusiasts wondered aloud as the times drew nearer. “Are we finally going to get justice?” Those who disagree with the death penalty seemed quieter, content to watch the clock silently and count on the judicial system to intervene.

Since the current capital punishment law was enacted in 1981, condemned men wanting at least one last-minute reprieve have consistently been given one. Courts postponed indefinitely all three of the most recently scheduled executions — two at the 11th hour.

It’s just very hard for us to kill someone in this state. The law is narrowly drawn, so only a fraction of people accused of murder can even be considered for the death penalty. Circumstances have to be heinous and considered “aggravated murder.”

Background of current law

“Since 1981, there have been 7,467 homicide cases filed in Washington,” according to a December 2006 report by a subcommittee of the Washington State Bar Association. “Of those, there have been 270 convictions of aggravated murder. A death sentence was not an option in each of these cases, since a sentence of death is not permitted when the defendant is a juvenile or deemed mentally retarded.

“Of the 270 currently filed trial reports, 254 were ‘death eligible,’ meaning that a sentence of death was a sentence option. Of the death-eligible convictions, there have been 79 cases in which the elected prosecutor had filed a death notice. Of the 79 ‘death sought’ cases, a sentence of death was imposed by a jury in 30 cases.” (Some sources list 31 cases, including one defendant who was a juvenile. The U.S. Supreme Court later abolished the death penalty for juveniles.)

Four executions have taken place at the Washington State Penitentiary under the state’s current law. All occurred between 1993 and 2001. Three of the men were “volunteers,” having waived their final appeals.

Regarding appeals overall, the subcommittee report says, “The majority of death sentences imposed have resulted in a (court-ordered) reversal. Nineteen cases have resulted in the conviction and/or the death sentence being reversed. Of these 19 reversals, nearly all have resulted in a sentence of life without the possibility of parole — the only other sentence option for an aggravated murder conviction.”

(The number of reversals now is 18 because of subsequent court actions after the subcommittee report was completed.)

That leaves eight men currently on death row.

The Sunday Union-Bulletin also carried McConn's column, "Capital punishment issue isn't simple."

It seems the older I get, the harder it is to figure some things out.

Issues that were clear to me even a decade or two ago are becoming fuzzy.

There's one in particular I want to discuss since it's been in the news lately.

Capital punishment.

My career as a reporter has required researching various topics, keeping abreast of governmental and social trends, and acquiring a working knowledge of criminal and court processes.

And, being human, I often struggle with what I believe is right, wrong, working or broken.

I regularly reported on events at the Washington State Penitentiary for about 30 years and witnessed three executions in the 1990s.

And:

We at the Union-Bulletin believe it's the perfect opportunity. After reading information we've researched for this series of articles, please talk with your friends and family about capital punishment. And be sure to weigh in by leaving comments on our Web site, writing letters to the editor, and of course notifying your legislative representatives.

Does the death penalty make sense? Is it moral, necessary, OK? Or are we evolving away from state-sanctioned killing, realizing like other sophisticated nations throughout the world that it's wrong and degrading to a civilized society?

Does putting to death an evildoer pave the way for victims' families to heal or do seemingly endless delays lead to further agony?

Your arguments shouldn't just be rooted in ethical conscience, empathy or political ideology, either. Keep in mind that we in this state have executed only one man in nearly half a century who has not been willing to die for his crimes. All the while, we have spent millions of dollars for prosecution and defense of death penalty cases -- far more, frankly, than it would cost to keep the eight men currently on death row locked up for life.

Should we continue capital punishment to send a clear signal that certain types of behavior won't be tolerated? Or does capital punishment make little practical sense in a time of roller-coaster economic conditions and the challenge to fund schools, health care, transportation, law enforcement agencies and traditional crime prevention programs?

Are we taking a valiant, honorable, righteous stand against evil or are we stubbornly trying to keep alive a seldom-carried-out law, which uncontrollable and unpredictable court rulings are just one justice away from killing?

After talking about all this, we may decide the death penalty continues to execute justice.

Or we might find it's outlived its usefulness.

Earlier news from Washington State is here and here.  I'll continue to link to the Union-Bulletin series as individual articles become available.

Proportionality Review - Not in Texas

"Judge denies constitutionality motion," is the title of John Tompkins' report in today's issue of the Brazosport Facts.  His article is datelined Angleton, Texas.

A Brazoria County judge on Thursday denied a motion from an accused murderer’s attorneys that claimed the state’s capital sentencing system is unconstitutional.

Attorneys filed the motion on behalf of Nicholas-Michael Jean, 21, of Pearland. Jean faces a capital murder charge in the shooting death of Susana DeJesus, who was kidnapped from a Pearland shopping center parking lot on Feb. 2.

Prosecutors intend to seek the death penalty against Jean.

The motion was denied during a pretrial hearing on Thursday, when prosecutors and defense attorneys issued their motions in the case. Another hearing is set for 9 am. Nov. 6.

According to court documents, attorneys contend the death penalty violates Jean’s Constitutional rights. The documents state the death penalty and the state’s capital punishment scheme violate the Eighth Amendment, the right against cruel and unusual punishment and the 14th Amendment, the right to due process.

Texas law does not require comparative proportionality review, a procedure that ensures the death penalty is applied consistently.

“Comparative proportionality review has been a central element of United States Supreme Court decisions upholding death penalty statutes,” the defense motion states.

District Judge Pat Sebesta denied the motion without offering explanation Thursday afternoon.

Prosecutors and defense attorneys declined to comment about the case because a publicity order bars them from speaking.

Related articles are in the proportionality category index.

Texas Execution

Texas carried out its 18th execution of 2009, this evening in Huntsville.  It was the state's 441st execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 39 executions in the nation this year; 1,175 since 1977.

Mike Tolson reports, "Killer in '95 Houston ambush executed," for the Houston Chronicle.

Prosecutors said the three were murdered because of a drug debt owed by Enrique Andrade Mosquera. Rather than pay it, he arranged a meeting and hired Coleman and a third man, Derrick Graham, as enforcers. The two groups met about 2 a.m. on a quiet residential street in the Acres Homes neighborhood of Houston. The shootings took place while the victims were in their car.

Coleman's attorneys contend that the state's key witness against him, Prado, was not credible. In recent years and days they have obtained affidavits from her and Mosquera acknowledging a previous relationship. Both were from the same town in Colombia. At the time of the trial, Prado insisted all the men were strangers.

Prado admitted in 2007 that she knew Mosquera, though only as an acquaintance. Mosquera says their relationship went well beyond that and that they had done drug deals together.

Coleman's lawyers contend that the jury in his case might have viewed her identification of him with skepticism if they had known of her original deception.

Mosquera and Graham are serving life sentences. Prosecutors eventually sought death against Mosquera as well because they believed he was responsible for Coleman's actions, but the jury could not agree on punishment, thereby triggering a life sentence.

Recent questions had been raised in the Coleman case, as noted here.

Coleman's was the 110th execution ordered from Harris County; more executions than any other state has conducted.  To date, Virginia has carried out 103 executions; Oklahoma, 91.

According to TDCJ, eight additional executions are scheduled in Texas over the next nine weeks.  It's possible that more may be added.

Texas carried out its 18th execution of 2009, this evening in Huntsville.  It was the state's 441st execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions.  To date, there have been 39 executions in the nation this year; 1,175 since 1977.

Mike Tolson reports, "Killer in '95 Houston ambush executed," for the Houston Chronicle.

Prosecutors said the three were murdered because of a drug debt owed by Enrique Andrade Mosquera. Rather than pay it, he arranged a meeting and hired Coleman and a third man, Derrick Graham, as enforcers. The two groups met about 2 a.m. on a quiet residential street in the Acres Homes neighborhood of Houston. The shootings took place while the victims were in their car.

Coleman's attorneys contend that the state's key witness against him, Prado, was not credible. In recent years and days they have obtained affidavits from her and Mosquera acknowledging a previous relationship. Both were from the same town in Colombia. At the time of the trial, Prado insisted all the men were strangers.

Prado admitted in 2007 that she knew Mosquera, though only as an acquaintance. Mosquera says their relationship went well beyond that and that they had done drug deals together.

Coleman's lawyers contend that the jury in his case might have viewed her identification of him with skepticism if they had known of her original deception.

Mosquera and Graham are serving life sentences. Prosecutors eventually sought death against Mosquera as well because they believed he was responsible for Coleman's actions, but the jury could not agree on punishment, thereby triggering a life sentence.

Recent questions had been raised in the Coleman case, as noted here.

Coleman's was the 110th execution ordered from Harris County; more executions than any other state has conducted.  To date, Virginia has carried out 103 executions; Oklahoma, 91.

According to TDCJ, eight additional executions are scheduled in Texas over the next nine weeks.  It's possible that more may be added.

Getsy Executed in Ohio - UPDATED

Jason Getsy's case was closely watched because of the rare recommendation by the Ohio Parole Board that his death sentence should be commuted.  None of the other four individuals convicted in the murder-for-hire crime received a death sentence.

AP reports Getsy was executed this morning.  The Dayton Daily News has, "State executes hit man." by Tom Beyerlein.

Earlier coverage of the case begins with this post.

UPDATE - An AP report datelined Washington by Jesse Holland notes Justice Sotomayor's involvement in Getsy.

Justice Sonia Sotomayor is getting into the swing of being a member of the Supreme Court.

Sotomayor made what appears to be her first public decision as a justice on Monday, voting unsuccessfully to delay the execution of an Ohio death row inmate.

She voted along with the court's liberal bloc — Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — to stop the execution of Jason Getsy, whose execution is Tuesday.

Getsy had asked the nation's high court Monday to allow him to challenge Ohio's lethal injection system as cruel and unusual punishment. The court's other five justices voted to deny the stay.

Getsy, 33, was sentenced to die for shooting 66-year-old Ann Serafino in 1995 in Hubbard, Ohio, near Youngstown.

The Supreme Court said Sotomayor did not participate in the court's other death penalty decision of the day: to order an evidentiary hearing for death row inmate Troy Davis, whose lawyers say they have evidence that he did not kill the off-duty police office for which he was condemned.

More on Jason Getsy in Ohio

Ohio's Warren Tribune Chronicle reports, "Court rejects Getsy’s lethal injection appeal," by Christopher Bobby.

With his execution still scheduled for Tuesday and still awaiting word from the governor on a possible reprieve, death row inmate Jason Getsy failed Wednesday in a last-ditch attempt to get federal appellate judges to hear more arguments on Ohio's lethal injection.

In a 13-page decision, a three-judge panel with the U.S. 6th Circuit Court of Appeals said Getsy was time barred, or late, with his attempts to argue the constitutionality of Ohio's form of execution.

Ohio's form of lethal injection already was affirmed in an earlier case.

The same three appellate judges were the ones who set aside Getsy's execution in August 2006, saying his execution violated the Eighth Amendment arbitrariness standard because other defendants in the case were only given life sen- tences.

A group of 14 federal judges later overturned that decision after urging by the Ohio Attorney General's Office.

In the meantime, Trumbull County Prosecutor Dennis Watkins is hoping more than 1,500 signatures on petitions forwarded to Gov. Ted Strickland's office convince him to set aside an Ohio Parole Board decision to grant clemency for Getsy and allow the execution of the convicted killer. Many elected prosecutors and a police chiefs association are backing Watkins.

The board earlier last month voted 5-2 for the reprieve after being convinced by Getsy's attorneys that their client didn't deserve death since the older co-defendant that planned and hired Getsy and others didn't get the death penalty.

The Sixth Circuit ruling is here.

Today's Dayton Daily News has commentary by staff writer Mary McCarty, "Strickland faces thankless decision on death penalty."

Along with gun control, the death penalty truly ranks among the Untouchable Issues.

Most mainstream politicians would rather swallow a box of nails than to get anywhere near either topic. It doesn’t matter how many Death Row inmates are proven to be innocent; there appears to be no political quarter in opposing capital punishment.

So you have to give Gov. Ted Strickland credit, on two previous occasions, for commuting the death sentences of convicted killers. He even went against the Ohio Parole Board’s recommendation against clemency when — troubled by the lack of physical evidence in the case — he commuted the sentence of John Spirko in 2008. Earlier this year, he followed the parole board’s unanimous recommendation to commute the sentence of Death Row inmate Jeffrey Hill.

Now Strickland faces another thankless decision in considering clemency for 33-year-old Jason Getsy, who is scheduled to be executed on Ohio’s Death Row on Tuesday morning.

It’s hard to drum up sympathy for a hitman like Getsy. He was not quite 20 on July 25, 1995, when he shot 66-year-old Ann Serafino at point-blank range after breaking into her home in Hubbard. He had been hired to kill her 39-year-old son, Charles Serafino, who survived the shooting. He continues to claim the killing was accidental — hardly a sign of contrition.

So why did the Ohio Parole Board, by a vote of 5-2, recommend that Getsy’s death sentence be commuted to life without possibility of parole?

It’s a question of equal justice.

Getsy’s accomplices are all serving lighter sentences, including the man who hired him to do the killing. John Santine is serving 20 years to life for ordering the hit against Charles Serafino, his business rival.

Earlier coverage of the case begins here.

With Rare Execution Hours Away, A Debate in Washington State

Washington state's last execution was in 2001.  It has carried out four post-Furman executions.  But an execution scheduled to be carried out shortly midnight has brought the death penalty debate to the surface.

"Clock ticks down to Brown's execution after appeal fails," is the Seattle Times news article by Sharon Pian Chen and Jennifer Sullivan.

Convicted killer Cal Coburn Brown has lost another appeal in his effort to stay out of the death chamber and is now hoping that the governor or the state Supreme Court will intervene.

Barring a last-minute stay, Brown is scheduled to be executed at 12:01 a.m. Friday. His would be the first execution in Washington since 2001.

And:

On Wednesday, Thurston County Superior Court Judge Chris Wickham refused Brown's motion challenging the state's right to administer lethal injection. His attorneys had asked for a stay so Brown could join similar challenges by death-row inmates Darold Ray Stenson and Jonathan Gentry scheduled to be heard in Thurston County in May, said Seattle defense attorney Jeff Ellis.

"Washington state must abandon the death penalty," is retired Washington Supreme Court Justice Robert Utter's OpEd, also in today's Seattle Times.

THE impending execution of a man in Washington State faces us with the question of whether the death penalty serves the state and its citizens well and whether it fulfills the reasons for which it was initially passed.

Since my resignation from the Washington State Supreme Court in 1995 to protest the death penalty, many things have changed. Public support for the death penalty has fallen dramatically over the past 14 years. Since 1995, death sentences in America have declined more than 60 percent, reversing a generation-long trend toward greater acceptance of capital punishment.

Friday's planned execution of Cal Coburn Brown for the 1991 torture and slaying of Holly Washa, 22, would be the first Washington state execution since 2001. The Supreme Court this week declined to stay the execution.

Most Americans continue to support the death penalty for the truly guilty. However, the discovery of innocence in more than 130 cases where people have been sentenced to death, exonerated and released is one more reason to question the need for retention of the death penalty. DNA testing is a partial answer, but even that is available in less than 10 percent of all homicides and is no guarantee we will not execute innocent people.

As for punishment and protection, life in prison without the possibility of parole is available in 48 states, including Washington, and prevents criminals from reoffending. It means what it says — 23 of 24 hours a day locked in a tiny cell is not coddling. Traditional objections — such as cost, delay and questionable deterrence given uncertainty and randomness of application — still exist. As does rejection of the death penalty by most civilized societies, including the more than 50 members of the Council of Europe.

My original reasons for resignation still apply. I then stated: "I believe society has a right to protect itself by imposing life sentences without the possibility of parole. However, it became obvious that there were certain inherent contradictions that made unfairness and discrimination not merely uncontrollable accessories of the punishment of death, but its very essence."

One of the reasons for my resignation was the failure of the court to conduct meaningful proportionality reviews as required by Washington law. In 2006, the court came within one vote of finding the death penalty had been applied in an arbitrary and irrational manner. The dissent noted: "The death penalty is like lightening, randomly striking some defendants and not others."

The death penalty was not imposed on Green River killer Gary Ridgway or on Benjamin Ng and Kwan Fai "Willie" Mak, who gunned down 14 people in the 1983 Wah Mee Massacre in Seattle. Where the death penalty is not imposed on those who committed the worst mass murders in Washington's history, on what basis do we determine on whom it is imposed?

And:

Retaining the death penalty fails to serve either justice, public safety or the public purse.

Finally, two of the paper's editorial board members discuss the Brown case and the death penalty in a blog post, "Should Washington state kill the death penalty?"

Ex-Judge Wants Man Off Death Row

That's the title of an article in today's Houston Chronicle about George Whitaker and his clemency petition filed by former Texas district judge Jay Burnett.  It's written by Allan Turner.  LINK

With Crosby murderer George Whitaker's execution just days away, state pardons commissioners Monday will consider a former state district judge's petition that the killer's death sentence be commuted to life in prison.

The request to spare Whitaker's life came from the killer's court-appointed lawyer, retired state District Judge Jay Burnett. Burnett presided over Harris County's 183rd District Court from 1986 to 1998 and was chairman of the State Bar of Texas' Committee on the Death Penalty from 1995 to 1998.

Whitaker, 37, was sentenced to die for the June 15, 1994, murder of 17-year-old Shakeitha Carrier. Carrier's mother, Mary Carrier, was shot twice in the attack, and her sister Ashley, 5, was severely pistol-whipped. His execution is scheduled for Wednesday.

Court testimony revealed the victims were relatives of Whitaker's ex-girlfriend Catina Carrier, who had ended their relationship.

Burnett said Whitaker's sole chance to live — he has exhausted all other appeals — rests on the pardons board's decision either to grant a 30-day stay so his petition may be further studied or to recommend that Gov. Rick Perry commute the sentence.

Except for commutations for mentally retarded or juvenile killers mandated by the U.S. Supreme Court, Perry has spared only one murderer from execution. In 2007, Perry commuted San Antonio killer Kenneth Foster's death sentence to life in prison.

 

In his petition to pardons officials, Burnett argued that his client unjustly was condemned because the presiding trial judge prohibited the jury from being told that a life sentence in the case would have required the killer to serve 40 years, day for day, before becoming eligible for parole.

Additionally, Burnett contended Whitaker suffered poor representation because lawyers did not present expert testimony regarding lingering effects of a childhood head injury. Finally, Burnett told commissioners, that, although brutal, Whitaker's crime did not meet death penalty criteria.

And:

Burnett asked the board to interview Whitaker about the case. Texas Board of Pardons and Paroles Chairwoman Rissie Owens said that request would be granted.

The Board of Pardons and Paroles has come under substantial criticism for its review (or lack thereof) of death penalty cases.    Last month, I addressed the issue in a comment, Eric Nenno and Texas Clemency, which related to Texas' unique reliance on predictions of future dangerousness in determining a capital murder sentence.   That is one of several areas in which the Board has the ability to correct judicial determations when the facts warrant a commutation.

In Georgia

"Death penalty process blasted; appeals follow," is Bill Rankin's report from the Sunday Atlanta Journal-Constitution.  Here's an extended excerpt of this must-read article:

When U.S. Supreme Court Justice John Paul Stevens recently criticized the way the Georgia Supreme Court reviews death-penalty cases, he appeared to be inviting legal challenges on the issue.

Georgia promised to ensure fairness in the application of the death penalty when it reinstated capital punishment in 1973. But Stevens said one facet of Georgia’s review to achieve that goal has become cursory and could result in arbitrary or discriminatory sentences.

“The Georgia Supreme Court … must take seriously its obligation to safeguard against the imposition of death sentences that are arbitrary or infected by impermissible considerations such as race,” Stevens wrote.

Lawyers defending capital cases said last week they are mounting new appeals. They will challenge the state Supreme Court’s proportionality review, which compares a death sentence with punishments in similar cases.

“We intend to challenge it,” said Atlanta veteran death-penalty lawyer Jack Martin, who represents a Towns County man.

Lawyers in the Office of the Georgia Capital Defender also are pursuing the issue.

“Obviously, at least one justice thinks it’s a valid issue,” said Mercer University law professor Tim Floyd. “Stevens seems to be sending an invitation.”

On Oct. 20, the high court turned down the appeal of Artemus Rick Walker, sentenced to death in 1999 in Macon County for killing and robbing a bank executive. The denial sparked a testy exchange between Stevens and Justice Clarence Thomas. Both agreed Walker’s appeal should be rejected, but strongly disagreed with the adequacy of the Georgia Supreme Court’s review.

Thomas took issue with Stevens’ criticisms, calling them “entirely without foundation.”

The Georgia Supreme Court has done nothing wrong and its proportionality review has been repeatedly upheld by the nation’s highest court, Thomas wrote.

Under Georgia law, the state Supreme Court must make sure a death sentence is not excessive or disproportionate when compared to punishment imposed in similar cases. The review is meant to ensure that capital sentences are not arbitrary.

The problem, Stevens said, is that the Georgia Supreme Court’s review compares a capital case only with cases that received death sentences, not similar cases that received life sentences.

Stevens, who was not joined by another justice, said the court conducts “an utterly perfunctory review.”

The Atlanta Journal-Constitution, in a series published last year, found that Georgia law has fallen short of ensuring a predictable and even-handed application of the death penalty. The newspaper researched 2,328 murder convictions over a decade and found death sentences were being imposed arbitrarily.

The AJC also researched all the state Supreme Court’s proportionality reviews from 1982 to 2007. The court once compared death cases with others that received life sentences, but it stopped doing so, except on rare occasions, in the 1980s. The court has not overturned a death sentence on proportionality grounds since 1981.

The Atlanta Journal-Constitution series on proportionality review is noted here; the proportionality index, here.

Racial Bias in Connecticut

Newsday carries an AP report, "Yale study: racial bias, randomness mar Conn. death penalty cases."

Lawyers for state death row inmates have released a study that concludes minorities are disproportionately sentenced to die for their crimes in Connecticut, and decisions to seek the death penalty are often arbitrary.

The findings of the study, led by a Yale Law School professor, are disputed by the state, and become the latest chapter in a complicated legal battle that began 13 years ago. Seven of the state's nine death row inmates have been challenging their sentences, saying there is racial and geographic discrimination in the use of the death penalty.

The issue will be debated at an unusual state Superior Court hearing Thursday and Friday in the gymnasium at Northern Correctional Institution in Somers, with the seven inmates scheduled to take part. Judge Stanley T. Fuger Jr. is scheduled to hear arguments on the state's motion to dismiss the inmates' court cases.

Yale Law School professor John J. Donohue III, who oversaw the study, said one of the most surprising findings is that the death penalty is often not sought for crimes that are more violent and disturbing than ones where lethal injection is pursued.

"There was basically no rational system to explain who got the death penalty," Donohue said Tuesday. "It really is about as random a process as you can possibly construct."

Over the past year, researchers reviewed 207 murder cases dating back to the early 1970s that were eligible for death penalty prosecution. Donohue said 60 percent of the defendants were minorities and 40 percent were white, numbers that conflict with the percentages in the general population.

Among the other findings in Donohue's 128-page report:

-- Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.

-- Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.

-- Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.

Of the inmates on death row, four are black, three are white and two are Hispanic.

And:

Another recent study, in which Ohio State University examined death row cases in 16 states, found that blacks who kill whites are more likely than other killers to be sentenced to death, and more likely to be executed. That study also showed that blacks receiving death sentences for killing nonwhites are less likely to be put to death than other death row inmates.

The Connecticut inmates' legal arguments date back to 1994, when condemned killer Sedrick Cobb asked the state Supreme Court for a chance to study the state's administration of the death penalty. Cobb was sentenced to lethal injection for the killing of a 23-year-old woman in 1989.

Several other death row inmates also went to court with issues of race and fairness, leading the state Supreme Court in 2003 to consolidate all the cases into one habeas corpus proceeding, another avenue for appeals that allows inmates to challenge their incarceration.

This week's hearings are part of that proceeding.

 

AJC Followup

A week after the landmark four-day series on the death penalty, the Atlanta Journal-Constitution has, "Quick fix for fairness is elusive."

A new execution law that better zeroes in on the most heinous murders. A state panel to review cases eligible for Georgia's death penalty. More money and staff support for prosecution. New sentencing options.

These were among the reforms suggested in reaction to an investigation by The Atlanta Journal-Constitution. The newspaper's study, published over four days last week, found the state's death penalty remains arbitrary three decades after an overhaul aimed at making the punishment more uniform.

State Sen. William Hamrick (R-Carrollton) said Friday that the Legislature might address disparities by narrowing the death penalty law to cover fewer crimes and focus more on the worst cases. The newspaper found prosecutors sought death in only one-fourth of the murders in which they could.

"It seemed like one of the ways of going about it that was pretty obvious," he said. "Just making sure that when the death penalty is sought, it's in the worst cases."

He also said he's open to other ideas, including creating a central panel to review cases that are eligible for the death penalty before prosecutors seek it. "If you support the death penalty, you want it to be applied in a way it's meant to be applied," Hamrick said.

But Sen. Eric Johnson (R-Savannah) said in a prepared statement that he's not convinced any new legislation is needed. Disparities are due to individual prosecutors and different community standards, he wrote.

The newspaper found wide variation in how often —- and why —- prosecutors in different circuits sought the death penalty. Some district attorneys rarely or never pursued a death sentence. Others pushed aggressively for capital punishment even for crimes such as fatal armed robberies, which many circuits routinely passed over.

As a result, some of the state's most heinous killers avoided a capital trial, while others with less aggravated cases landed on death row.

Earlier coverage, with links to the all the series articles, is here.