The StandDown Texas Project

Oklahoma Attorney General Speaks Out on LI Drugs

The Tulsa World reports, "Pruitt says execution drug shortage a continuing problem," by Randy Krehbiel.

“Anti-death penalty zealots” are causing shortages of execution drugs and contributing to the uncertainty marking lethal injection, Oklahoma Attorney General Scott Pruitt said Thursday.

Speaking to the Sapulpa Chamber of Commerce, Pruitt said “issues with administration” of a three-drug combination, and not the drugs themselves, appear to have been the reason that murderer Clayton Lockett’s death took much longer — about 43 minutes — than expected.

And:

Pruitt emphasized the difficulty in obtaining drugs for lethal injection and said the combination previously used by Oklahoma had become impossible to obtain.

Earlier coverage from Oklahoma begins at the link.

More News From Missouri - Updated

Update: "Death row inmate Winfield seeks stay of execution from Missouri Supreme Court," is the AP report, via the Tribune.

A Missouri inmate scheduled to be put to death next week is asking the Missouri Supreme Court to halt the execution.

John Winfield faces execution June 18 for killing two women in St. Louis County in 1996. In a court filing on Monday, attorneys for Winfield say it is unconstitutional for the state to execute him with "an unregulated compounded drug, from an undisclosed supplier, made of unknown ingredients, and through unknown processes."

"Reporter's notebook: Legal moves before execution scheduled June 18," is by Jeremy Kohler for the St. Louis Post-Dispatch.

Missouri’s streak of six executions in six months ended in May when the U.S. Supreme Court ordered the state to hold off on putting Russell Bucklew to death. The rare intervention allowed time for lower courts to consider whether death by injection would be excruciating for Bucklew, who suffers from a rare medical condition.

But the state is planning to go ahead June 18 with a lethal injection for convicted murderer John E. Winfield, 46.

Time posts, "Death Lab: Missouri Eyes Its Own Lethal Injection Pharmacy," by Josh Sanburn.

In a speech to the Bar Association of Metropolitan St. Louis late last month, Missouri Attorney General Chris Koster called for a “state-operated, DEA-licensed laboratory to produce the execution chemicals in our state,” and urged the legislature to fund the country’s first pharmacy specifically for carrying out lethal injection.

By manufacturing its own drugs, the state could, in theory, get around several difficulties in administering executions. It wouldn’t have to rely on compounding pharmacies, which are often kept anonymous and are unregulated by the federal government. It would be able to have a consistent and adequate supply of drugs, helping the state avoid changes to its drug protocol and the use of drugs in untested combinations. And most importantly, the state might be able to avoid future lawsuits regarding the origins of lethal injection drugs, which have put a halt to many executions around the country—not to mention troublesome executions like that of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio. Meanwhile, the Associated Press, the Guardian and three other news organizations have sued Missouri in an attempt to get the state Department of Corrections to reveal its drug sources. But even considering all that, the cost and sheer logistics of building a pharmacy from the ground up to manufacture a handful of drugs may not be worth it.

“There’s no way I could justify the cost on something like that” if the state is only using it to produce just one or two drugs, says Ernie Gates, president of Gates Healthcare Associates, which consults and advises pharmacies. “The commitment would have to be significant.”

Earlier coverage of John Winfield's case begins at the link.  You can also jump to news of the Missouri AG's speech.

Missouri AG Calls on State to Manufacture LI Drugs

"Attorney general proposes that Missouri make its own lethal injection chemicals," is by Tony Rizzo of the Kansas City Star.

Missouri’s struggles to obtain drugs to carry out executions have been plagued by controversy and legal challenges.

On Thursday, Missouri Attorney General Chris Koster proposed a solution: Missouri should make its own lethal injection chemicals.

“The legislature should appropriate funds to establish a state-operated, DEA-licensed laboratory to produce the execution chemicals in our state,” Koster said in a speech to a bar association group at the Lake of the Ozarks.

Today's St. Louis Post-Dispatch reports, "Missouri attorney general: State needs its own execution pharmacy," by Jeremy Kohler.

“Lethal injection relies upon an uneasy cooperation between medical professionals who assist in the executions, pharmaceutical companies that provide the chemicals, and the state,” Koster said, according to a copy of his speech. “In recent years, this cooperative arrangement has become so strained that continued use of lethal injection as the preferred execution method is currently being reconsidered in several states.”

Last week in Tennessee, for example, the governor signed into law a bill that would allow for death by electrocution if drugs for lethal injections were not available.

Koster noted that journalists and condemned inmates have pressed the state for disclosure about how the drugs are made, and who makes them.

Earlier this month, the Post-Dispatch and other news organizations sued the Missouri Department of Corrections to compel it to release information about the drugs the state uses for injection executions.

You can read the Missouri Attorney General's prepared remarks, thanks to the Post-Dispatch.

"Missouri official proposes execution drug lab," is the AP report filed by Jim Salter, via the Springfield News-Leader.

Missouri should establish its own laboratory to produce chemicals for use in executions rather than rely on an "uneasy cooperation" with medical professionals and pharmaceutical companies, the state's attorney general said Thursday.

Attorney General Chris Koster, a Democrat, spoke to the Bar Association of Metropolitan St. Louis during the group's meeting at Lake of the Ozarks.

"For Missouri to maintain lethal injection ... it is my belief the Legislature should remove market-driven participants and pressures from the system and appropriate funds to establish a state-operated, DEA-licensed, laboratory to produce the execution chemicals in our state," said Koster, according to a transcript provided by his office.

A state-operated execution drug lab would be a first, and it isn't clear if it could be implemented through a simple change in Missouri's protocol or if legislative approval would be necessary. Messages seeking comment from officials with the Department of Corrections and the Attorney General's office were not returned.

St. Louis Public Radio posts, "Expressing Concern Over Execution Secrecy, Koster Calls On State To Make Lethal Injection Drugs," by Chris McDaniel.

The announcement comes at a time when there are few willing suppliers, which Koster admitted in his speech.

"The vast majority of medical professionals refuse to participate in any aspect of the procedure, believing it conflicts with their Hippocratic Oath," Koster said, according to a copy of his speech, which he delivered to  a conference of the Bar Association of Metropolitan St. Louis at the Lake of the Ozarks.

To hide the identity of those that are willing, the state made the supplier of its execution drugs a secret last October. An investigation by St. Louis Public Radio revealed that the state’s previous supplier was not licensed to sell in Missouri and had been cited in the past by regulatory agencies.

To keep it a secret, the state was paying this pharmacy a little more than $11,000, all in cash, each execution.

Koster has ardently supported secrecy in the past. But speaking in Lake of the Ozarks, he said the transparency questions should "concern all of us deeply."

“While this creeping secrecy is legal, it may not be prudent, and it merits the attention of state lawmakers,” he said.

"Missouri attorney general wants the state to produce its own lethal injection drugs," is by Mark Berman of the Washington Post.

Missouri has executed four people in 2014, which is as many people as the state executed between 2006 and 2013.

The botched execution of Clayton Lockett in Oklahoma last month drew worldwide attention, reviving a debate over the death penalty and the way it is carried out in the United States. An execution in Texas, set to be the first since the botch in Oklahoma, was halted hours before the injection after a court cited the intellectual disability of inmate Robert James Campbell.

As a result, Missouri’s scheduled execution of Russell Bucklew last week would have been the first in the country since the Oklahoma episode. That execution was halted, reinstated and halted again during a judicial back-and-forth before the Supreme Court ultimately stayed the execution and sent it back to lower courts. Attorneys for Campbell and Bucklew had criticized the secrecy involved in the lethal injection process in both states.

Additional coverage includes:

"Attorney General Koster Thinks Missouri Should Make Its Own Execution Drugs," by Lindsay Tolerfor River Front Times.

ABA Journal posts, "AG’s unique solution to dearth of execution drugs: State should manufacture its own supply," by Martha Neil.

Earlier coverage from Missouri begins at the link.

George Ryan Says Mandela Was Inspiration for Illinois Commutations

"Ex-Gov. Ryan speaks at Chicago Mandela tribute," is the AP report filed by Sophia Tareen, via the San Francisco Chronicle.

In one of his first public appearances since being released from prison this year, former Illinois Gov. George Ryan told attendees at a memorial service Sunday that Nelson Mandela played a role in his 2003 decision to empty death row.

His nearly five-minute speech at the Chicago church where U.S. Rep. Bobby Rush preaches — mostly stories about meeting Mandela in 2000 — was met with hearty applause, particularly as Ryan described commuting the sentences of Illinois' death row inmates. The move, which put Ryan in the national spotlight, eventually led to the state abolishing the death penalty in 2011.

The event, where Mandela's portrait hung above the pulpit, was billed as the "people's tribute" and included speeches by Rush, fellow Chicago Democrat U.S. Rep. Danny Davis, Nation of Islam officials, community leaders and Chicago-based consuls general from several countries.

Ryan, 79, described his first meeting with Mandela in South Africa during a gubernatorial trade mission. The half-hour discussion at Mandela's home was "filled with emotion and inspiration," Ryan said.

Three years later, as Ryan was considering what to do — and before he concluded Illinois' capital punishment law was flawed — he received a call from Mandela. Ryan said Mandela "asked me to do what I did."

"Ryan: Mandela Inspired Death Penalty Moratorium," is a different version of the AP report, via WSIU-FM.

Former Illinois Gov. George Ryan says Nelson Mandela was instrumental in his 2003 decision to empty death row.

The Chicago Sun-Times reports, "Ex-Gov. George Ryan remembers Nelson Mandela at memorial service," by Brian Slodysko.

Eulogizing Mandela, who died earlier this month at 95, Ryan described the life lesson he took away from their 30-minute meeting at Mandela’s home.

“We basically listened to what he had to say, and those 30 minutes were filled with emotion and inspiration,” said Ryan, who said he teared up during the meeting. “He was a towering figure of courage tenacity and forgiveness. He wanted to help mankind, help his fellow man.”

But it wasn’t Ryan’s last interaction with the man credited with bringing down Apartheid.

Several years later, after Ryan had imposed a moratorium on the executions in Illinois, Mandela called him while Ryan was contemplating commuting the sentences of inmates on Death Row.

“I hadn’t decided what my decision was going to be, and Nelson Mandela called me from South Africa and asked me to do what I [eventually] did and it had an impact on my actions,” Ryan said.

Earlier news of former Illninois Governor George Ryan begins at the link.

News Coverage of the ABA Symposium at the Carter Center

The National Journal posts, "Jimmy Carter's Crusade Against the Death Penalty Is Lonely, But Is He Winning?" by Dustin Volz.

Former President Carter called for a national moratorium on capital punishment in the United States on Tuesday, declaring in a speech, "We should abolish the death penalty here and throughout the world."

Carter proceeded to meticulously enumerate the oft-cited ethical, financial, and legal reasons for his opposition, which are nothing new for the octogenarian; he expressed doubt about the death penalty as far back as his presidential campaigns.

"Perhaps the strongest argument against the death penalty is its extreme bias against the poor, minorities, and those with mental disabilities," Carter said at a national symposium hosted by the American Bar Association at the Carter Center in Atlanta. "It's hard to imagine a rich white man or woman going to the death chamber after being defended by expensive lawyers."

Carter's remarks come at a time when support for the death penalty among Americans has fallen to 60 percent, the lowest reading since 1972 and down from a mid-1990s high of 80 percent. States with capital punishment are also facing unprecedented challenges in their efforts to secure the drugs necessary to perform executions by way of lethal injection.

"Carter calls for abolition of death penalty," by Bill Rankin in the Atlanta Journal-Constitution.

In 1973, Carter, then governor of Georgia, signed the state’s capital punishment statute into law after it had been struck down a year before by the U.S. Supreme Court in the case, Furman v. Georgia. The new law was upheld by the high court in 1976 in the case, Gregg v. Georgia.

Carter condemned Georgia’s burden of proof for inmates who say they should be ineligible for execution on grounds they are mentally disabled. Georgia is the only state in the country that requires inmates to prove their mental retardation beyond a reasonable doubt.

In recent years, Carter has called for the state to commute the death sentence imposed against Warren Hill, who sits on death row for killing a fellow prison inmate. Hill was only able to prove his mental disability by a preponderance of the evidence — or more likely than not — and courts and that state parole board have rejected his claims.

Georgia’s burden of proof “makes is almost legally impossible” for inmates to prove they are mentally disabled, Carter said. “That would be hard for me to do if the jury was bipartisan in nature.”

 AP coverage is, "Carter calls for abolition of death penalty," by Kate Brumback.  It's via the Dalton Daily Citizen.

Former President Jimmy Carter said Tuesday there are overwhelming ethical, financial and religious reasons to abolish the death penalty all over the world.

Carter spoke at a daylong symposium on capital punishment at the Carter Center in Atlanta, but it wasn’t the first time the 89-year-old former president and former governor of Georgia has advocated ending capital punishment.

Statistics have shown that the possibility of the death penalty does not reduce violent crime that and crime doesn’t increase when executions are stopped, he said. He also said there are unfair racial, economic and geographic disparities in the application of the death penalty.

And:

Carter noted that a majority of the executions since the death penalty was reinstated in the U.S. in 1976 have been carried out in Southern states, which are traditionally more conservative. But Carter said he doesn’t believe that opposing the death penalty has to be politically poisonous.

Sitting on a panel with Carter at the American Bar Association’s National Symposium on the Modern Death Penalty in America, Southern Center for Human Rights president Stephen Bright prodded Carter about the political viability of such a position in Georgia.

“Let’s say you were advising someone running for governor today, just hypothetically let’s say a member of your family was running for governor and asked you what position to take on the death penalty,” Bright said, drawing laughs from the crowd. Carter’s grandson, Georgia state Sen. Jason Carter, announced last week that he’s running for governor.

Carter laughed and then grew more serious in his response: “If I ever have someone like that in my family, I will give them a copy of the speech I just made and ask them to do what they believe in their heart is right because I don’t believe that the death penalty abolition would be an overwhelmingly a negative factor in Georgia politics.”

The key, Carter said, is stressing hefty alternative sentences, such as life in prison.

"Analysis: Wrongful convictions sharpen focus on death penalty," is by Maggie Clark of Stateline, via USA Today.

To ensure that more innocent people don't end up on death row, the American Bar Association has conducted assessments of the death penalty system in 12 states and issued recommendations ranging from stronger rules on police interrogations to protections for the mentally ill facing execution.

In its most recent report, researchers found that Virginia's death penalty lacked adequate protections to prevent an innocent person from being executed. The report recommended allowing more evidence to be released to the defense team, which former Virginia Republican Attorney General Mark Earley said was the only way to make sure the process is fair.

"By the time a case gets to the appellate review, a lot of the decisions about a defendant's guilt are already locked in. By that time, the deck is stacked against the defendant," Earley said during the panel discussion.

And:

"I think the days of the death penalty in Virginia are numbered," Earley said, citing growing conservative discontent with the punishment. Earley supported the death penalty as a Republican state senator, but said he changed his mind after witnessing executions as the state attorney general.

In the last six years, six states have ended the death penalty bringing the total to 18. Earlier this year, North Carolina and Florida passed laws designed to shorten the length of time between conviction and execution.

Creative Loafing Atlanta posts, "Jimmy Carter wants to ban executions throughout the United States," by Max Blau.

The 89-year-old former commander-in-chief and Georgia governor spoke this morning at the National Symposium on the Modern Death Penalty in America, a daylong event at the Carter Center that featured numerous speakers and panels about capital punishment.

"We should abolish the death penalty here and throughout the world," Carter said at the event.

The American Bar Association, which hosted the symposium with the Carter Center, wants guarantees that the death penalty is used in a fair and effective manner. According to WABE, Carter pointed out that Southern states' higher execution rates have largely failed to curb homicides. He also called Georgia's burden of proof for mental disability, which has played a crucial role in death-row inmate Warren Lee Hill's controversial case, problematic.

I'll have some state-specific coverage of the ABA symposium in the next post.

Earlier coverage of President Carter's thoughts on capital punishment and a preview of the ABA program begins at the link.

You can get more information on the state assessments at the ABA's Death Penalty Due Process Project website.

Related posts are in the ABA category index.

Maryland Governor Martin O'Malley on Pursuing the Dream

Today's Washington Post reports, "Md. governor says his state is realizing MLK’s dream," by John Wagner.

Legalizing same-sex marriage, abolishing the death penalty and raising the minimum wage are part of today’s “work of justice,” Maryland Gov. Martin O’Malley (D) said Wednesday at the commemoration of the 50th anniversary of the march on Washington.

O’Malley, who appeared early in a long program of speakers praising the work of the Rev. Martin Luther King Jr., used his remarks to make the case for a modern “calling of conscience to action.”

“The responsibility we consecrate today is not rooted in nostalgia or memory, it is rooted in something far deeper,” the governor said from the steps of the Lincoln Memorial, in remarks aides said he largely crafted himself.

"O'Malley: Abolishing death penalty, legalizing gay marriage part of pushing King's vision forward," is Justin Sink's post at the Hill.

Maryland Gov. Martin O'Malley (D) said that laws abolishing the death penalty, legalizing gay marriage and raising the minimum wage represented the modern "calling of conscious to action" while speaking Wednesday at the 50th anniversary of the March on Washington.

O'Malley, who has strongly hinted that he plans to pursue the 2016 Democratic presidential nomination, said there was an "urgent" need to attend to the "work of justice."

And:

O'Malley added that "action that abolishes the death penalty and improves public safety in every neighborhood regardless of income or color" and "actions that create jobs and raises the minimum wage" would strengthen the country.

Earlier coverage from Maryland begins at the link; also available, jump directly to coverage of Maryland's repeal of the death penalty.

Jeanne Woodford Continues to Speak for Repeal in California

"Former San Quentin Warden Woodford says death penalty almost dead," is by Paul Liberatore in the Marin Independent Journal.

To hear former San Quentin State Prison Warden Jeanne Woodford tell it, the death penalty is all but dead in California.

"The political consensus is that California's death penalty is on its way out," she told an audience of about 70 people Saturday in the auditorium at the Redwoods in Mill Valley. "The question remains when and how it will go."

The 61-year-old Woodford, who oversaw four executions during her five-year stint as warden of San Quentin, was a prominent leader in last year's narrowly defeated Proposition 34 campaign to replace the death penalty with life in prison without possibility of parole.

On the eve of the election, a Field Poll showed the Prop. 34 initiative in the lead. It ended up losing 48 percent to 52 percent, a margin of just 500,000 votes.

She pointed out that public opinion has changed drastically since the death penalty was reinstated in 1978, when 70 percent of California voters favored it. Since then, it has cost the state $4 billion to administer.

"If 250,001 voters had changed their minds and voted yes, we would have won and no longer have the death penalty in this state," she said, adding, "We did succeed in forever changing the landscape on this issue in this state. With 48 percent of voters supporting repeal, we have shown that the state is now evenly divided on the death penalty. We have fundamentally changed the conversation."

Earlier coverage from California begins with lethal injection developments. You can also jump to Prop. 34 election coverage.

President Obama on Race and the Death Penalty

This excerpt is from President Obama's remarks on Trayvon Martin, Friday, July 19, 2013, in the White House press briefing room.  Click the link for the complete text.  You can also watch the President deliver his remarks on YouTube.

"The African-American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case."

Here's an extended excerpt:

"There are very few African American men in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me. There are very few African American men who haven't had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me -- at least before I was a senator . There are very few African Americans who haven't had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often. And I don't want to exaggerate this, but those sets of experiences inform how the African American community interprets what happened one night in Florida. ... The African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case.

"Now, this isn't to say that the African American community is naïve about the fact that African American young men are disproportionately involved in the criminal justice system; that they're disproportionately both victims and perpetrators of violence. It's not to make excuses for that fact -- although black folks do interpret the reasons for that in a historical context. They understand that some of the violence that takes place in poor black neighborhoods around the country is born out of a very violent past in this country, and that the poverty and dysfunction that we see in those communities can be traced to a very difficult history. And so the fact that sometimes that's unacknowledged adds to the frustration. And the fact that a lot of African American boys are painted with a broad brush and the excuse is given: Well, there are these statistics out there that show that African American boys are more violent. Using that as an excuse to then see sons treated differently causes pain. I think the African American community is also not naïve in understanding that, statistically, somebody like Trayvon Martin was statistically more likely to be shot by a peer than he was by somebody else.

"So folks understand the challenges that exist for African American boys. But they get frustrated ... if they feel that there's no context for it and that context is being denied. And that all contributes, I think, to a sense that if a white male teen was involved in the same kind of scenario, that, from top to bottom, both the outcome and the aftermath might have been different. ... I think it's understandable that there have been demonstrations and vigils and protests, and some of that stuff is just going to have to work its way through, as long as it remains nonviolent. If I see any violence, then I will remind folks that that dishonors what happened to Trayvon Martin and his family. But beyond protests or vigils, the question is, are there some concrete things that we might be able to do. ... [L]et me just give a couple of specifics that I'm still bouncing around with my staff. So we're not rolling out some five-point plan, but some areas where I think all of us could potentially focus.

"Number one, ... I think it would be productive for the Justice Department, governors, mayors to work with law enforcement about training at the state and local levels in order to reduce the kind of mistrust in the system that sometimes currently exists. ...
"[Second,] I think it would be useful for us to examine some state and local laws to see ... if they are designed in such a way that they may encourage the kinds of altercations and confrontations and tragedies that we saw in the Florida case, rather than diffuse potential altercations. ... And for those who resist that idea that we should think about something like these 'stand your ground' laws, I'd just ask people to consider, if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car because he felt threatened? And if the answer to that question is at least ambiguous, then it seems to me that we might want to examine those kinds of laws.

"Number three -- and this is a long-term project -- we need to spend some time in thinking about how do we bolster and reinforce our African American boys. And this is something that Michelle and I talk a lot about. There are a lot of kids out there who need help who are getting a lot of negative reinforcement. And is there more that we can do to give them the sense that their country cares about them and values them and is willing to invest in them? I'm not naïve about the prospects of some grand, new federal program. I'm not sure that that's what we're talking about here. But I do recognize that as President, I've got some convening power, and there are a lot of good programs that are being done across the country on this front. And for us to be able to gather together business leaders and local elected officials and clergy and celebrities and athletes, and figure out how are we doing a better job helping young African American men feel that they're a full part of this society and that they've got pathways and avenues to succeed -- I think that would be a pretty good outcome from what was obviously a tragic situation. And we're going to spend some time working on that and thinking about that.

"And then, finally , I think it's going to be important for all of us to do some soul-searching. There has been talk about should we convene a conversation on race. I haven't seen that be particularly productive when politicians try to organize conversations. They end up being stilted and politicized, and folks are locked into the positions they already have. On the other hand, in families and churches and workplaces, there's the possibility that people are a little bit more honest, and at least you ask yourself your own questions about: Am I wringing as much bias out of myself as I can? Am I judging people as much as I can, based on not the color of their skin, but the content of their character? ...

"And let me just leave you with a final thought that, as difficult and challenging as this whole episode has been for a lot of people, I don't want us to lose sight that things are getting better. Each successive generation seems to be making progress in changing attitudes when it comes to race. It doesn't mean we're in a post-racial society. It doesn't mean that racism is eliminated. But when I talk to Malia and Sasha, and I listen to their friends and I seem them interact, they're better than we are -- they're better than we were -- on these issues. And that's true in every community that I've visited all across the country. ... [K]ids these days, I think, have more sense than we did back then, and certainly more than our parents did or our grandparents did; and that along this long, difficult journey, we're becoming a more perfect union -- not a perfect union, but a more perfect union. Thank you, guys."

Related posts are in the race category index.

Thanks to Ron Tabak for distributing.

Expanded Coverage of Arkansas AG's Speech

"Ark. AG: Current death penalty system is broken," is by Jeannie Nuss of Associated Press.  It's via Arkansas Business; it's also available from the Beaumont Enterprise.

Arkansas' top lawyer said Wednesday that the current death penalty system is broken.

The state hasn't executed an inmate since 2005. Attorney General Dustin McDaniel said he doesn't expect that to change anytime soon as Arkansas grapples with legal challenges and a shortage of drugs used in lethal injections.

And:

McDaniel called for a discussion about the future of the death penalty and mentioned abolishing capital punishment as a possibility, but he stopped short of advocating that.

"Eighteen states have abolished the death penalty," McDaniel said. "The voters of Arkansas can certainly choose that route. The Legislature could choose that route."

So could the courts, he said.

"If the Arkansas Supreme Court decides to abolish the death penalty by declaring it unconstitutional, I would acknowledge that that is an acceptable use of their power," McDaniel said. "But none of those things are happening. ... Rather, we have the current situation, one that I strongly oppose."

"McDaniel says state death penalty procedure broken," is by Stacy Ryburn for the Arkansas News Bureau.

“It’s time for the policy makers of Arkansas to say, ‘Do we continue with a broken system and throwing money and resources at essentially pointless litigation, or do we modify the system?’” he said. “And there’s only really two modifications that I see available — it’s either abolish the death penalty or change the method of execution.”

The problem that state lethal injection presents is that there are no viable execution drugs available for the state to purchase, and even if there were, the American Medical Association says it’s unethical for physicians to take part in ending someone’s life, McDaniel said.

Civil litigation in death-penalty cases is also more burdensome than any other type of appeal. The average convicted inmate in the state spends 15 years on death row, McDaniel said.

The system has evolved, as has McDaniel’s view on the punishment, since he took office in 2007, he said.

“This has evolved nationally in my time as attorney general. The civil litigation has changed both its nature and its effectiveness since I’ve become attorney general; the availability of the drugs has completely changed in my time as attorney general,” McDaniel said. “This was not the state of the law or the facts when I became attorney general.”

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

Arkansas AG: Abolish or Change Method of Execution

The Arkansas News Bureau posts, "McDaniel Urges Changes To State’s Death-Penalty System," by Stacy Ryburn.

Arkansas Attorney General Dustin McDaniel recommends the state abolish the death penalty or change its method of execution, calling the system “completely broken” Wednesday in Fort Smith.

During the Arkansas Sheriffs’ Association summer convention at the Holiday Inn City Center, McDaniel said he still supports the death penalty as a policy, but called for a serious public discussion regarding its practice in the state.

“What I want is for us to discontinue treating the lethal injection as the legal fallacy that it is,” he said. “Frankly, I don’t think we are telling jurors the truth when we lead them to believe that they are sentencing someone to death when we really don’t have a viable system with which to execute someone.”

McDaniel said he believes most Arkansas voters support lethal injection but would consider other methods of execution, such as the electric chair, gas chamber or firing squad, to be “too barbaric for a civilized society.”

Arkansas has 38 inmates on death row, including four from western Arkansas.

"Execution system not functional, McDaniel says," is the AP coverage, via NorthWest Arkansas Online.

"I am opposed to the courts and drug manufacturers continuing to neutralize our death penalty through the imposition of practical hurdles that cannot be overcome," he said.

The attorney general says he continues to support the death penalty but said he has no reason to believe that any of the state's condemned prisoners will be executed while he is in office.

And:

McDaniel asked Gov. Mike Beebe this year to schedule executions for seven death row inmates but the governor has indicated he has no immediate plans to do so.

Arkansas last executed a death row inmate in 2005.

Earlier coverage of Arkansas lethal injection issues begins at the link.  Earlier this year, Arkansas Governor Mike Beebe said that if repeal legislation reached his desk he would sign it into law.

Is an Innocence Commission in Texas' Future?

The Atlantic posts, "In Texas, From a Chief Justice, Welcome Candor About Unequal Justice," by Andrew Cohen.

Last Wednesday, in Austin, Texas, a remarkable thing happened. In a state where the promise of equal justice under law often is a farce, where poor people and people of color far too often are subject to unfair treatment by prosecutors, police, judges, jailors and jurors, the Chief Justice of the state supreme court spoke out at length with great clarity and candor about the desperate legal conditions of his fellow Texans and the immediate need to secure for them all the right to "liberty and justice." (Note good update below).

Wallace B. Jefferson, the first black justice on the state's supreme court, the first black chief justice of the state's supreme court, the man appointed by Republican Gov. Rick Perry to replace Alberto Gonzales, offered his remarks in his annual "State of the Judiciary" address and his timing could hardly be better. Next week, America marks the 50th anniversary of the United States Supreme Court's landmark decision in Gideon v. Wainwright, which was designed to secure the right to counsel for people too poor to afford their own attorney.

Jefferson's speech is yet another detailed reminder of how far we've come from the premise and the promise of Gideon. (Last week, on this topic, I wrote here about the Alabama case of Christopher Lee Price, a death row inmate whose constitutional right to counsel has been consistently denied by the courts. Next week, in advance of the March 18th anniversary of the decision, we'll be posting here at The Atlantic a special piece on the legacy of Gideon).

"Chief Justice Pushes for 'Innocence Commission'," is Maurice Chammah's coverage for the Texas Tribune.

At his biennial speech in front of the Legislature, Chief Justice Wallace Jefferson reiterated his calls for more funding for civil legal aid, indigent defense and juvenile justice reform, and pushed for the establishment of an "innocence commission" to investigate wrongful convictions. 

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that "wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free" and recommended the Legislature create a commission "to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms." He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system."

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Related posts are in the innocence commission and Texas Legislature indexes.

Maryland Governor Martin O’Malley on Repealing Capital Punishment

Here is the full text of Governor O'Malley speech on repealing capital punishment, given yesterday.  It's via Southern Maryland News Net.

Thank you very much. It’s wonderful to be here with all of you. Lt. Governor, thank you for those heartfelt and very principled remarks. And thank you all for stepping up and for being here on this issue. County Executive Ike Leggett, it’s good to see you. County Executive Rushern Baker, Chairman Frosh, so many that are here,… Senator Gladden, Delegate Rosenberg.

It would seem to me that, especially in tough times, if there if something that we’re doing through our government that is expensive, and does not work, then we should stop doing it.

The death penalty is expensive and it does not work. And for that reason alone, I believe we should stop doing it.

So this week, once again, I will be filing legislation to repeal the death penalty in Maryland. And I want to share with you how I come to this issue. I want to share with you my reasons for doing this once again. And I thank all of the delegates, and senators,… Lt. Governor, and county executives for being here and being supportive of this repeal of the death penalty in Maryland.

Investing In Strategies that Work
Anyone who has ever looked in the eyes of a young boy or a girl,… or has sat to comfort a mom or a dad whose life has been turned totally upside down by the loss of a child,… by the violent taking of the life of a loved one,… who has felt the despair of entire neighborhoods, and entire cities because of violence, and the violent taking of life. The degradation of violence. The violent destruction of violence. The ripping apart of the fabric of life that others have sewn for themselves and their families,… understands that the most fundamental responsibility we have as a people is to safeguard the lives of people.

To govern is to choose. And particularly in an era of limited budget resources, every dollar that we choose to spend on a policy that is wasteful and does not work – when instead we could be doing more of the things that do work to protect life – seems to me to run counter to the pragmatic “do the things that work” governance that is the hallmark of our State, and what our people desire.

The death penalty does not work in terms of preventing violent crime and the taking of human life. If you look over 30 or 40 years, the death penalty was on the books, and yet Baltimore still became the most violent and addicted city in America. Having the death penalty on the books did nothing to keep the homicides from rising.

Conversely, over these last several years, we’ve been doing the things that work. We’ve been making our police departments more effective. We’ve been deploying to where the crime is. We’ve been using DNA technology and DNA evidence to solve crimes, as well as to exonerate those who were wrongly accused. We’ve been putting technology in the hands of law enforcement. We’ve been solving cases.

And as a result of doing the things that actually work, we’ve been able to drive violent crime down to three decade lows. We’ve been able to save scores and scores of lives that otherwise would have been taken by rising homicide numbers.

We know what works. Investing in law enforcement. Investing in data-driven policing. Increasing the availability of drug treatment. Performance measurement. Strengthening partnerships between police and neighbors. Investing in the latest crime fighting technologies, DNA analysis, healing vulnerable families – these are the things that work to reduce violent crime and save lives. The death penalty does not work.

Justice
Good people on both sides of this issue have, in the past, disagreed about the morality of the death penalty. I think there is increasingly less disagreement about its effectiveness, especially in our State. I wanted to shift to another topic, which is the justice and the morality of the death penalty.

Year after year, states which have a death penalty have actually had a higher murder rate than states which do not have a death penalty. That would seem to indicate to me that the death penalty, again, does not work as a deterrent.

And the other facts are even more troubling,… In 2008, the Maryland Commission on Capital Punishment that was led by distinguished son of Maryland, former United States Attorney General Benjamin Civiletti, took a look at this issue with dedication, with fairness, with a lot of different perspectives around the table, and with a respect for differences of opinion. They did very good work. They held hours of hearings and considered in a very open, transparent, and also compassionate way, days of testimony from citizens who came at this issue from a variety of perspectives. And, quite frankly, a lot of personal pain.

The Commission found that for every 8.7 Americans sent to death row, there has been one innocent person exonerated.

It was near unanimous in reporting that quote “the administration of the death penalty clearly shows racial bias.” It determined that no administrative fixes could end these disparities.

And it found that the cost to taxpayers of pursuing a capital case is three times as much as the costs of pursuing a non-death penalty homicide conviction, where a person receives a life sentence without parole.

Who We Choose to Be
So, in conclusion, who do we choose to be?

To govern is to choose. All of us have to ask ourselves, “Is it worth wasting taxpayer dollars on a policy that does not work?”

And perhaps there is another question we might ask, which is “Who do we, as a People, aspire to be?”

Across our ever more closely linked world, the majority of executions take place in seven countries: Communist China. Iran. Iraq. North Korea. Saudi Arabia. Yemen. And the United States of America.

On the other hand, 141 countries have chosen to abolish capital punishment. I won’t read you that list, but as you might conclude, it is a much more expansive community than the number who still use the death penalty.

So who do we choose to be? In whose company to we choose to walk forward? Will we be a society guided by the notion that two wrongs somehow make a right? Or will we be a society that’s guided by the fundamental civil and human rights that we understand are bestowed on humankind by God? A society guided by the dignity of every individual. A society that is always moving forward to what’s right.

Today is the birthday of Dr. Martin Luther King, Jr., who taught us that “Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction.”

The choice is really ours. We know what works. We know what does not work.

And we know that the way forward is always found through greater respect for the human dignity of all.  Thanks very much.

Earlier coverage from Maryland begins at the link.  There will be news coverage of Gov. O'Malley's speech in the next post.

Sen. Gayle Slossberg: What Kind of Society Do We Want

Thanks to Sen. Gayle Slossberg for permission to post her complete remarks on capital punishment during the Connecticut Senate's debate on SB 280 to repeal the state's death penalty.  It's a must-read:

A few years ago, I was waiting for the train to New York and I sat down on a bench next to an elderly man.  We started to chat. Elections were coming up, so our conversation naturally turned to politics and the state of our country.  We ran through the usual topics and then he turned to me and said something I have thought about over and over again ever since:  He said that between the tough economy, the rise of hate crimes, the vilification of this group or that by otherwise good, moral people and the seemingly chronic need to blame someone for society’s problems, he said he was afraid – not for himself, but for our children. It is only a short step from here to there, he said – to think of some people as less than human.  And once we think of people as less than human, it becomes okay to kill them and then what kind of society do we have?

For me, that is really the question of today’s debate: What kind of society do we have and what kind of society do we want for our children?

Like many of the people in this circle, I have agonized over the issue of the death penalty.  I have thought about it, debated it, researched it, talked to friends, family and strangers about it.  I have listened to the debate here today.  I appreciate and respect all of the different points of view that have been expressed.  I have spent a lot of time soul searching and lying awake at night thinking about all the facets of this issue.  Like Sen. Prague, it plagues me to think we could put an innocent person to death?  Does a moral society execute people?  As I have confronted this issue, and advanced my understanding and thinking, I have come to the conclusion that both the realities of the death penalty as it is applied and the moral issues it raises dictate that it be abolished.

Benjamin Franklin said “… it is better 100 guilty Persons should escape than that one innocent Person should suffer.”  The good news is that by eliminating the death penalty, we are not letting any guilty person go free, but we are making sure that we do not execute someone who is innocent.  We know the criminal justice system makes mistakes.  We need only look to James Tillman right here in Connecticut to remember that innocent people are wrongly convicted.  We know that hundreds of people have been released from death row with evidence of their innocence.  While we would like to believe that the criminal justice system is fair, that all the appeals will prevent an error, we know that is not the truth.  In Florida, where there is a death penalty, Former Florida Chief Justice Gerald Kogan stated after 45 years of working in the system, “There is no question in my mind…that convinces me that we certainly have…executed those not guilty of the crime for which they have been executed.”  Is that the society we want? Where we execute innocent people?  And if our society executes an innocent person, there is no possibility of fixing that error.   We can’t go back.  Haven’t  we then become the evil we are trying to eliminate?

The death penalty is not a deterrent. With all the studies that have been done, I am not convinced that criminals consider the death penalty when they are committing crimes.  In fact, states without a death penalty statute have significantly lower murder rates than their counterparts with the death penalty.   If you look at regions, the disparity becomes quite pronounced.  The South implements 80% of all executions in the country and has the highest murder rate, whereas, the Northeast implements less than 1% of all the executions and has the lowest murder rate in the nation.

In order to have a just society, we must have laws that apply equally to everyone yet the death penalty is meted out arbitrarily.  And if you don’t think that is the case in Connecticut, think again.  Last month, a few of us from the circle visited death row and the maximum security prison that houses the criminals who were sentenced to life without the possibility of parole.  On our way there, we were handed a list of criminals and the crimes they had committed.  They were heinous, horrible, unspeakable acts – and I thought surely each of them deserved to die- and then I looked at the heading on the paper—these were the criminals who had gotten life without the possibility of parole!  The people on death row had also committed heinous, horrible crimes but there was virtually no way to predict who would have gotten death and who would have gotten life without the possibility of parole.  It was completely arbitrary, based on the luck of the draw; race, economic status, geography, ethnicity, a good lawyer…some unknown factor that made the jury more or less sympathetic.  Is that justice?

The death penalty isn’t necessary for public safety.  The criminal has already been caught and tried.  He is removed from society and no longer a threat to anyone’s safety. The death penalty doesn’t bring back the victims of their crimes.   We certainly can punish criminals and protect the public safety without a death penalty.  And please don’t get me wrong, these people have committed horrible crimes and they deserve to be punished.  With the amendment offered at the beginning of this debate, we will have a harsh, severe punishment, so horrible atleast one person chose to die instead.

While these arguments alone call for repeal of the death penalty, for me, the most compelling issue is the one people don’t like to talk about – the moral question – the question the old man on the train asked – What kind of society to do we have and what kind of society do we want to be? 

Last September, I watched the Republican presidential primary debates.  The moderator asked Governor Rick Perry how he felt about the 234 executions that he had presided over in Texas, more executions than any other Governor in modern times and before the Governor had even had a chance to respond, the crowd cheered.  The      crowd       cheered.  What kind of society cheers death?  I understand people who believe that the death penalty is justice – but to cheer?  And then to add insult to injury, Governor Perry was asked — do you ever struggle to sleep at night?  to which Perry responded – No struggle.  I do not struggle to sleep at night because the system is fair.  Again the crowd cheered.  Even if the criminal justice system was without error which we know it is not, what kind of society allows the systematic execution of people without even a second thought?

I believe that the death penalty calls to our basest instincts.  You only need to think about the crowd cheering at the debate about executions to know that the death penalty degrades our society.  Imposing the death penalty is really not about the criminal.  It is about how it makes us feel.  Like Sen. Musto, I can imagine that if someone harmed my family, I would want to harm them, too, but I want my public policy to be better than that.  Like the old man at the train, I fear for our society when we people can cheer at an execution or we feel nothing or we feel like it just doesn’t matter if society kills , even when that person is no longer a threat to our safety.  When we go down that path, we lose something as a society.

Last month, I received an angry letter from a man suffering from a fatal disease.  He wrote that he had never done anything wrong, yet because of his illness, he was sentenced to death and no one could commute his sentence.  Then he wrote, it isn’t fair that he, an innocent man, should get a death sentence and the legislature would consider eliminating the death penalty for murderers.  I could understand his anger and his belief that repealing the death penalty meant that we were showing compassion for murderers whereas no one could really show the same compassion for him.  I thought a long time about that letter until I realized that repealing the death penalty has nothing do with compassion or the criminal.   It has everything to do with what the act of killing does to US, the law abiding members of society.  Killers kill and they don’t feel bad about it.  What separates the good from evil is when most good, moral people do something bad, it makes them feel bad.  Most people are good, moral people, trying our best to abide by the laws and rules of our society.  We teach our children to be kind, to be honest, to reject violence.  So when we also say it is okay for us to kill when there is no longer any threat to our safety, we erode the very morals to which we aspire. It is a small step from here to there, said the old man.  It is like a smoldering ember that slowly burns a hole in all that is good in our society.

So what kind of society do we want for our children?

We know our criminal justice system is broken.  We know all the arguments that logically support repeal.  But for me, the most compelling reason to reject the death penalty is to set ourselves on the path to the kind of society we want for our future.

I never saw the old man from the train again, but if I did, I would like to tell him this:   I want something better for our families.   I want to know that in the face of terrible evil, we will hold on tighter to our humanity; that when our faith in each other is challenged, we will work harder to fulfill our obligations to one another as human beings; that we will stand for justice for all; that we will raise each other up, and not descend to the level of criminals.  We cannot confront darkness with darkness and expect to have light.

 I hope that one day, when my children look back on this vote, they will view it with pride and know that today we took a step towards being a more civilized and just society for all.  I am proud to support the repeal of the death penalty.

Earlier coverage of her speech and the Connecticut repeal vote begins at the link.

Connecticut Senator Gayle Slossberg on Capital Punishment

In the extensive coverage of the Connecticut debate on capital punishment, the Hartford Courant has made special mention of the remarks of Sen. Gayle Slossberg's statement.  Susan Campbell of the Courant posts, "Read Sen. Gayle Slossberg’s moving speech about Connecticut’s death penalty."

Debate on the bill to repeal Connecticut’s death penalty stretched into today’s wee hours, and there was some incredible language through the afternoon, evening, and morning — heartfelt, moving, and real from elected representatives who’d spent time on this emotional and tough topic.

But one speech — from Sen. Gayle Slossberg, D-Milford — resonated particularly.

And how do you know, in this age of insta-news, when something strikes a chord? People starting emailing one another — and commenting on Facebook — asking for a copy. Several of us were reporting portions of the speech on Twitter, and we were all choosing different portions — in 140-character bites. You need to witness the whole thing.

Here'e the beginning:

A few years ago, I was waiting for the train to New York and I sat down on a bench next to an elderly man.  We started to chat. Elections were coming up, so our conversation naturally turned to politics and the state of our country.  We ran through the usual topics and then he turned to me and said something I have thought about over and over again ever since:  He said that between the tough economy, the rise of hate crimes, the vilification of this group or that by otherwise good, moral people and the seemingly chronic need to blame someone for society’s problems, he said he was afraid – not for himself, but for our children. It is only a short step from here to there, he said – to think of some people as less than human.  And once we think of people as less than human, it becomes okay to kill them and then what kind of society do we have?

For me, that is really the question of today’s debate: What kind of society do we have and what kind of society do we want for our children?

Like many of the people in this circle, I have agonized over the issue of the death penalty.  I have thought about it, debated it, researched it, talked to friends, family and strangers about it.  I have listened to the debate here today.  I appreciate and respect all of the different points of view that have been expressed.  I have spent a lot of time soul searching and lying awake at night thinking about all the facets of this issue.  Like Sen. Prague, it plagues me to think we could put an innocent person to death?  Does a moral society execute people?  As I have confronted this issue, and advanced my understanding and thinking, I have come to the conclusion that both the realities of the death penalty as it is applied and the moral issues it raises dictate that it be abolished.

Coverage of the Connecticut Senate vote to repeal the state's death penalty begins at the link.

Arkansas Death Penalty Conviction Overturned by Tweeting, Sleeping Jurors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Stevens Criticizes Connick Ruling

Tony Mauro posts"Stevens Criticizes Ruling on Prosecutorial Immunity," at Legal Times/Law.com.

In a speech last night, retired Supreme Court Justice John Paul Stevens made clear his displeasure with the Court's recent decision in Connick v. Thompson and urged congressional action to hold prosecutors clearly liable for the civil rights violations of their underlings.

It is rare but not unheard of for retired justices to comment critically about the Court's work, especially about a specific recent decision. But it seems in keeping with how the 91-year-old Stevens plans to spend his retirement, speaking out on issues of the day and, as he recently revealed, writing a book.

Stevens spoke at a New York dinner in his honor sponsored by the Equal Justice Initiative, the Alabama-based organization that supports indigent defendants and prisoners.

By a 5-4 vote, the Court in Connick overturned a $14 million judgment awarded to a man who spent 14 years on death row in Lousiana before his convictions were overturned.

And:

Stevens highlighted what he said were the "shocking facts" of the case, which pointed to prosecutorial misconduct well beyond a single act — including concealment of blood evidence and of conflicting police reports. Stevens indicated he agreed with dissenting Justice Ruth Bader Ginsburg that the jury was correct in finding deliberate indifference on the part of the prosecutor.

Justice Antonin Scalia came in for criticism from Stevens. Stevens quoted from Scalia's statement in a concurrence that "there was probably no Brady violation at all" in the case, except by one deputy sheriff which, Scalia said, was "a bad-faith knowing violation" that was not the result of lack of training. Stevens said Scalia had "either overlooked or chosen to ignore the fact that bad faith, knowing violations may be caused by improper supervision."

That point led to Stevens' broader assertion that reform is needed to apply respondeat superior principles to prosecutors in the same way they apply to private employers. In other words, he concluded, district attorneys need to be held liable for wrongdoing by employees. Stevens noted that prosecutors' immunity from that liability  is a "judge-made rule" stemming from dicta in the 1978 decision Monell v. New York City Department of Social Services. That rule was a mistake, Stevens said, especially given that political pressure gives prosecutors little incentive to train their underlings on Brady. Stevens said the problem could be fixed — as with other statutory interpretations by the Court — by an act of Congress, amending the civil rights protection known as Section 1983.

"Stevens Urges Congress to Crack Down on Prosecutorial Misconduct," is the title of Jess Bravin's post at the WSJ Law blog.

Retired Justice John Paul Stevens said Supreme Court decisions have given local prosecutors impunity for violating constitutional rights, and urged Congress to respond by authorizing victims of misconduct to sue.

In a speech Monday night to the Equal Justice Initiative, which advocates for indigent defendants,  Justice Stevens criticized the court’s March decision overturning a jury’s $14 million award to an innocent man who spent 14 years on death row after prosecutors concealed evidence that could have cleared him.

The case of Connick v. Thompson saw the court split 5-4 along its conservative-liberal divide. Writing for the majority, Justice Clarence Thomas rejected the freed man’s theory that the New Orleans district attorney’s office was negligent for failing to train its staff to comply with longstanding precedents requiring prosecutors to disclose exculpatory evidence to defendants.

And:

Stevens said Monday that the nature of the American criminal justice system—where most local prosecutors are elected—“creates a problem of imbalanced incentives that ought to be addressed at the state and national level.”

Because district attorneys often run on tough-on-crime platforms, the pressures to ensure convictions far outweigh the rewards for respecting rights of the accused, Stevens said.

That could be fixed, he said, by making district attorneys liable when their subordinates commit outrageous violations of constitutional rights. Private-sector employees already are liable for their employees’ misconduct, under a legal doctrine called respondeat superior.

The doctrine “provides a powerful continuing incentive for employers to make sure that their employees are adequately trained,” Stevens said, something “especially important where electoral incentives encourage abuse.” More important, he said, “it would produce a just result in cases like Thompson’s in which there is no dispute about the fact that he was harmed by conduct that flagrantly violated his constitutional rights.”

Justice Stevens' speech is available in Adobe .pdf format.  Thanks to Elizabeth Zitrin for pointing me to the speech.

More on Connick v. Thompson, prosecutorial misconduct, and the plight of John Thompson at the links.

Elie Wiesel: The Death Penalty and Human Dignity

That was the title of the Nobel Laureate's speech at Wesleyan University in Connecticut, last night.

The Day reports, "For Elie Wiesel, death penalty is not the answer." It's written by Karen Florin.

Dr. William Petit did not attend Elie Wiesel's lecture on capital punishment at Wesleyan University Tuesday, but for a few minutes the Nazi death camp survivor spoke as if the man who lost his wife and daughters in the Cheshire home invasion was his only audience.

"Your wound is open," Wiesel said. "It will remain. You are mourning, and how can I not feel the pain of your mourning? But death is not the answer."

The 82-year-old Nobel Peace laureate, author and human rights activist said that if the death penalty could bring back the victims, maybe he would change his stance. He did allow that murderers should be punished more harshly than other prisoners.

"They should get hard labor," he said.

"Death is not the answer" became the refrain for Wiesel as he wondered aloud what could be done to help survivors of violent crimes "so that families will not feel cheated by the law."

The Romanian native spoke with authority, having lost both parents and a sister in the Nazi death camps. He escaped Buchenwald in April 1945 when it was liberated by soldiers from the U.S. Army's Sixth Armored Division.

"I know," he said. "I know the pain of those who survive. Believe me, I know."

Wiesel spoke in the university's Memorial Chapel, which was packed with about 400 students, professors and invited guests. In simple, lyrical language that carried the lilt of his Eastern European beginnings, he defended his anti-death position using stories from the past.

In the Biblical story of Cain and Abel, the two sons of Adam, Cain is said to have asked God, after he had killed his brother and God wondered about Abel's whereabouts, "Am I my brother's keeper?"

"I think it wanted to teach us that whoever kills, kills his brother," Wiesel said.

"Elie Wiesel speaks about death penalty at Wesleyan," is the title of Julie Anne Rancourt's report in today's Middletown Press.

Nobel Peace Laureate Elie Wiesel delivered a lecture on the use of capital punishment in an ethical society to students, faculty, alumni and the public Tuesday evening at Wesleyan University.

The program, which was initially going to focus solely on building an ethical society, was altered to include Wiesel’s first ever detailed address of the use of the death penalty in this country.

And:

It is in part because of those experiences as a youth during the war that Wiesel does not believe that society should act as the angel of death. He believes in harsher punishment, such as hard labor for prisoners, but “we should not be the servants of death”.

Earlier in the day, while addressing the media, Wiesel spoke about the Cheshire home invasion case and ongoing trial.

“It would be almost obscene for me to comment about morality to the father (who survived)," Wiesel said. "I would only ask, do you really think that death could bring them back to life? It is not easy, but a civilized society needs to face such challenges. That father deserves a different language. We must find the words, the proper words, to deal with it.”

Recalling that his passion for his studies after surviving the war saved his sanity, Wiesel said that education is the key to building a moral society, and got a chuckle out of the audience which included Wesleyan President Michael Roth and his family when he said that teachers salaries should be raised to show our respect for them and their work.

“Remember what you’ve learned here, and remember that the answer is always in your hands,” Wiesel told the students.

Thanks to Ron Tabak for distributing.  I'm hoping that Elie Wiesel's entire remarks will be posted on his web site.

Justice Souter's Class

That's the title of Linda Greenhouse's latest post on the New York Times Opinionator blog.  LINK 

Justice David H. Souter left the Supreme Court nearly a year ago without really saying goodbye. There were no pre-retirement interviews of the sort that Justice John Paul Stevens gave to several journalists this spring. There were no farewell press conferences like those that several justices who retired during the 1980’s and 1990’s were willing to endure for the sake of placing their own codas on their Supreme Court careers.

And since Justice Souter has decided to keep his papers closed to the public for 50 years, few people in a position actually to remember his Supreme Court tenure (1990-2009) will be able to explore the archive and learn what conclusions this most private of public figures drew from his part in two decades of profound debate about the role of the court and the meaning of the Constitution.

So it was with a mixture of relief and something close to joy that I listened last week to David Souter’s commencement address at Harvard, his undergraduate and law school alma mater, which awarded him an honorary degree. (I was in the audience as a member of Harvard’s Board of Overseers; like the thousands of others seated at the outdoor gathering, I had no idea what to expect.)

And:

But for those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.

His stance was modest — “Over the course of 19 years on the Supreme Court, I learned some lessons about the Constitution of the United States,” he began — but the prose was muscular, in contrast to the writing style in many of his opinions. The “notion that all of constitutional law lies there in the Constitution waiting for a judge to read it fairly” is not only “simplistic,” he said; it “diminishes us” by failing to acknowledge that the Constitution is not just a set of aphorisms for the country to live by but a “pantheon of values” inevitably in tension with one another. The Supreme Court may serve no higher function than to help society resolve the “conflict between the good and the good,” he suggested:

A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

The full text of Justice Souter's address, as delivered, is here.; more online posts from Greenhouse, here.

Attorney General Eric Holder Addresses ABA Annual Meeting

The transcript of Holder's prepared speech is here.

"Holder: Jail is not only crime solution," is the Chicago Tribune report written by Kristen Schorsch.

U.S. Attorney General Eric Holder, addressing the American Bar Association on Monday, called for getting not only tough but also "smart" on crime, saying that jail is not the entire answer when it comes to law enforcement.

Noting that one of every 100 adults across the country is behind bars -- "the highest incarceration rate in the world" -- Holder said that putting people in prison costs too much economically and socially in a nation where car dealerships are closing, teachers are getting laid off and after-school programs are being cut.

"But in almost all cases, spending on prisons continues to rise," Holder said during a roughly 20-minute speech at the association's annual meeting in Chicago. "This is unsustainable economically."

Holder called for new strategies and tools to fight crime, such as studying what happens to inmates once they leave prison and developing programs based more on their failure or success.

And:

Holder also wants to identify and tailor programs for children who are most at risk for committing crimes later in life. Also on the table, Holder said, are addressing a lack of resources for public defenders -- a line that drew applause from the assembled lawyers -- and reviewing federal sentencing and corrections policy.

The ABA Journal has posted, "AG Holder Calls for Getting ‘Smart on Crime’," written by Edward A. Adams.

“We must be tough on crime, but we must also commit ourselves to being smart on crime,” he said.

Since 2003, spending on incarceration has continued to grow, while crime rates have stopped declining, he said. Now, one of every 100 adult Americans is incarcerated— the highest incarceration rate in the world, he said.

As evidence of how DOJ will implement a data-driven approach, he noted that federal prisoners who go through a drug treatment program are 16 percent less likely to be arrested and returned to prison. Those who work in prison industries are 24 percent less likely to commit a crime again. Those who go through prison education programs are 16 percent less likely to be arrested again, he said.

Most crimes are committed by people who have already committed crime, he noted. More than 65 percent of former state prisoners and 40 percent of former federal prisoners are rearrested within three years of their release, he said.

“Even a modest reduction in recidivism would prevent thousands of crimes,” Holder said.

"Holder draws applause calling for indigent defense, DNA testing," is at the National Law Journal's coverage of the ABA Annual Meeting.

With respect to the lack of resources for public defender programs, Holder said that those programs receive only 3 percent of criminal budget spending in the nation’s biggest counties. “This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel,” he said. “When defendants fail to receive competent legal representation, their cases are vulnerable to costly and time-consuming mistakes.”

Holder described the Justice Department as committed to using the best available technology, including forensic science, whenever possible. Defendants should have access to DNA evidence in a variety of situations, he said.

In a reference to the U.S. Supreme Court's June 18 decision in District Attorney's Office v. Osborne, which found no constitutional right to post-conviction access to DNA evidence, Holder said, “Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.”

Here's a brief excerpt from Holder's speech:

I have also called upon the Department to focus on another part of the criminal justice system: the very difficult issue of indigent defense. Putting politics aside, we must address the fact that there is a crisis within our nation’s system of indigent defense. Resources for public defender programs lag far behind other justice system programs, constituting only about 3% of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead. Defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. And we often hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel. When defendants fail to receive competent legal representation, their cases are vulnerable to costly, and time-consuming, mistakes. Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors. When that happens, no one wins. Addressing the American Council of Chief Defenders in June, I committed to several steps to help improve the indigent defense system, including hosting a national conference with the goal of developing a set of best practices and practical solutions.

I have also made it clear that this Department of Justice will use the available data to improve our handling of the forensics sciences – such as fingerprints, trace evidence, and firearms matching. We are studying a recent report from the National Academies of Science that diagnosed problems in the use of forensics sciences and suggested ways forward, and we are working with our partners in the Executive Branch and Congress to act on the report’s insights and recommendations. Our goal is to ensure that forensic science is practiced at the highest level possible, and always in the pursuit of truth. Because we put a premium on truth-seeking and because this Administration is committed to using the best science possible whenever possible, including in criminal justice, I also believe that defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.

An earlier speech by Holder is noted in this post.

AG Eric Holder Speaks at Vera Institute

The Department of Justice has released the Attorney General's prepared comments.  LINK  Here's an excerpt from this must-read:

The Vera Institute of Justice has been an extraordinary partner to government in the administration of justice. I thank you in particular for your work with the federal government across a range of issues – from your contributions to the national commission to eliminate prison rape to the administration of Legal Orientation Programs for non-citizens in immigration proceedings. Your practical, rational, data-driven, results-oriented approach can best be described as post-partisan. In the five months that I have served as Attorney General, I have tried to take that same approach, and that is what I would like to talk about this evening: how we can move past politics and ideology in order to get smart on crime.

Getting smart on crime requires talking honestly about which policies have worked and which have not, without fear of being labeled as too hard or, more likely, as too soft on crime. Getting smart on crime means moving beyond useless labels and instead embracing science and data, and relying on them to shape policy. And it means thinking about crime in context – not just reacting to the criminal act, but developing the government’s ability to enhance public safety before the crime is committed and after the former offender is returned to society.

It is imperative that we get smart on crime now, for much has changed since some of our basic, governing assumptions about criminal law enforcement were developed. In the middle years of the twentieth century, America went through an historic increase in crime and illegal drug use. In the 1960s and 70s, the overall crime rate increased more than five-fold. Violent crime nearly quadrupled. The murder rate doubled. And heroin, cocaine and other illegal drug use surged.

Many lawmakers in the 1980s responded by declaring, in rhetoric and in legislation, that we needed to get tough on crime. States passed truth-in-sentencing and three strikes and you’re out laws. Some state parole boards became more cautious, while other states eliminated discretionary parole altogether. The federal government adopted severe mandatory minimum sentencing laws, eliminated parole, and developed the federal sentencing guidelines.

The federal government and states spent billions of dollars in new prison construction. The result was dramatic: the number of inmates in American prisons has increased seven-fold since 1970. Today, one out of every 100 adults in America is incarcerated – the highest incarceration rate in the world.

Few would dispute that public safety requires incarceration, and that imprisonment is at least partially responsible for the dramatic drop in crime rates nationwide in recent decades. By 2007, the nation’s violent crime rate had dropped by almost 40% from its peak in 1991. But just as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.

To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.

So what can we do to lower the crime rate further, to make American communities safer, to get smarter on crime? We need new tools – and one way to develop new tools is to look several steps past getting people into prison, and to consider what happens to people after they leave prison and reenter society.

And:

I have also called upon the Department to focus on another part of the criminal justice system: the very difficult issue of indigent defense. Putting politics aside, we must address the fact that, simply put, there is a crisis in indigent defense in this country. Resources for public defender programs lag far behind other justice system programs, constituting only about 3 percent of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead. We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel. When defendants fail to receive competent legal representation, their cases are vulnerable to costly mistakes that can take a long time to correct. Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors. When that happens, no one wins. Addressing the American Council of Chief Defenders last month, I committed to several steps to help improve the indigent defense system, including hosting a national conference with the goal of developing a set of best practices and practical solutions.

I have also made it clear that this Department of Justice will use the available data to improve our handling of the forensics sciences – such as fingerprints, trace evidence, firearms matching. We are studying a recent report from the National Academies of Science that diagnosed problems in the use of forensics sciences and suggested ways forward, and we are working with our partners in the Executive Branch and Congress to act on the report’s insights and recommendations. Our goal is to ensure that forensic science is practiced at the highest level possible, and always in the pursuit of truth. Because we put a premium on truth-seeking – because, indeed, this Administration is committed to using the best science possible whenever possible, including in criminal justice – I also believe that defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.

An earlier speech by Holder is noted here.