The Death Penalty Blog : Displaying 71-90 of 317


An Open Letter to Gov. Jerry Brown from the Former "Hanging Judge of Orange County"

Posted by Donald A. McCartin, Guest Blogger on March 30th, 2011

Dear Governor Brown,

Welcome back. I offer here a few thoughts for your consideration.

After you were gutsy enough to appoint me, a right-wing Republican, to the Superior Court of Orange County, I served there from 1978 to 1993, after which I sat on assignment on death cases throughout California. In all, I presided over more trials than I can possibly recount. Among those I do remember, however, were ten murder trials in which I sentenced the convicted men to die in our state's execution chamber. As a result, I became known as "the hanging judge of Orange County," an appellation that, I will confess, I accepted with some pride.

The ten were deemed guilty of horrifying crimes by their peers, and in the jurors' view as well as mine they deserved to die at the hands of the state. However, as of today, one has died of natural causes in prison and none of the others has been executed, a fact that stirs deep anger within me.

Let me explain:

I am angered by the fact that our system of laws has become so complex and convoluted that a decision I was put in the position to make, one that I then believed promised resolution for the family members of the victims of those crimes, has been made a mockery.

I have followed the development of legal thinking and understand why our nation's Supreme Court, in holding that "death is different," required that special care be taken to safeguard the rights of those accused of capital crimes, especially those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And while I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.

I can live with it and, apparently, so can the men I condemned. The first one, Rodney James Alcala, whom I sentenced to die over 30 years ago for kidnapping and killing 12-year-old Robin Samsoe, was, just last year, again sentenced to death for killing little Robin Samsoe and four other young women who, it has subsequently been determined, were his victims at around the same time.

I need not here go into the permutations of Mr. Alcala's legal journey. Behind bars since 1979, he has not harmed, nor can he harm, any other young women. That's instructive because harm has been done and that's what infuriates me. Robin Samsoe's mother has been re-victimized time and time again as the state of California has spent millions upon millions of dollars in a series of unsuccessful attempts to fulfill its promise that her daughter's murder can be resolved and she can go on with her life.

Had I known then what I know now I would have given Mr. Alcala and the others the alternative sentence of life in prison without the possibility of parole. Had I done that, Robin's mother Marianne would have been spared the pain of 30 years of misery, wondering if her daughter's murder would ever be finally resolved. She could have dealt then and there with the fact that her daughter's killer would be shut away, never again to see a day of freedom, and gone on to put her life together. Had I done that, the State of California would not have put her through the torture of hearing after hearing, trial after trial. Had I done that, the people of California would have been spared the hideous expense of hundreds of millions of their tax dollars that were squandered in this meaningless and ultimately fruitless pursuit of death.

It makes me angry, Governor Brown, to have been made a player in a system that is so inefficient, so ineffective, so expensive and so emotionally costly to those to whom it promises peace but delivers only pain.

I watch today as you wrestle with the massive debt that is suffocating our state and hear that you don't want to "play games." But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim's family members waiting for that magical sense of "closure" they've been promised by prosecutors once the perpetrator has been killed by the state.

You and I know, Governor, that there is no such thing as "closure" when a loved one is taken. What family members must find is reconciliation with the reality of their loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts with the promise that the state will end their pain by causing the death of another is a cruel lie.

So I agree that we should no longer play games, Governor Brown. You and I are both older now, so let's stop playing the killing game. Let's use the hundreds of millions of dollars we'll save to protect some of those essential services now threatened with death. Let's stop asking people like me to lie to those victim's family members.

I'm told you don't have the power to end the death penalty by yourself, but you can point the way. You can have a huge financial impact on California by following the lead of Governor Ryan of Illinois and commuting the sentences of all the men and women on California's death row - all 700-plus of them - to life without parole. And you can direct the millions you save to making some of our citizens' lives brighter and more promising.

Let's stop playing games, Governor. Let's stop lying to the people; let's stop being politicians and start behaving like the grownups we've become.

With Respect,

Donald A. McCartin,

Judge, Superior Court (Ret.), Orange County




Theologian Dale Recinella Responds to Biblical Justification of Death Penalty

Posted by Dale S. Recinella, J.D., M.T.S, Guest Blogger on March 29th, 2011

My dear Christian friend, Mr. Robert Michaels:

 

I read your 03/25/2011 01:03:32 AM PDT post in the Vallejo Times Herald concerning the Bible and the death penalty. Thank you for your sincere and conscientious interest in the issue of the death penalty. Perhaps because of my extensive writing and speaking in the area of the American death penalty and religion, especially Christian religion, it is proper for me to address you on this subject.

 

You have indicated that you are of the opinion that people of biblical faith must, after all is said and done, support what is required by the Bible. I agree. For decades I supported the American death penalty. My support was based upon what I thought was in Holy Scripture. And you and I are not alone in that. The reason, I think, that over 86% of all the executions in the U.S. in the last 33 years have occurred in the Bible Belt is because good, Bible-believing people believe that the Bible requires it. That was why I supported it.

 

Well, I'm also a lawyer. After many years as a corporate lawyer God called me and my wife to ministry. Now, with 13 years of ministry to the families of murder victims, to men being executed, to families of the executed, and to staff at Florida's death row prison, I have had to dig back into the Scriptures much more deeply than I had before in order to find out exactly what God is expecting of us.

 

My conclusion is that God expects our society to punish wrongdoing-you may use the word retribution and that's a fine word by my reading of the Bible. There must be consequences for choosing to do harm to society, to people and to property. And it must be just punishment or those who are not motivated by grace will scoff at the law and run roughshod over the innocent.

 

That brought me to the next question, what is just punishment?

 

Let's say a criminal commits a crime that causes someone to be burned over half their body, or causes a person to be blinded, or to lose a limb. Does the justice required by Scripture mean that we have to take that criminal and burn half his body, or blind him or severe his limbs? We might want to-but that's not the question. The question is does God's Word require such a burning or blinding or maiming in order for the punishment to be just? Virtually all Christians agree that it does not. Time to be spent in prison is the just punishment.

 

So, then, what if the crime committed involves the taking of human life? Is the killing of the criminal the only just punishment allowed by Scripture? I do not think so. I think life in prison without possibility of parole is punishment that fully grants retribution for the evil done. And, you and I do not have to become killers ourselves in order to carry out that punishment.

 

You have looked to Paul's Epistle to the Romans 13:3-4 to confirm God's mandate for capital punishment:

 

"But if thou do that which is evil, be afraid; for (government) beareth not the sword in vain: for (government) is the minister of God, a revenger to execute wrath upon him that doeth evil." Authorized King James Version.

 

The two critical words here are sword and execute. If government bears the sword as God's minister to execute offenders, it sounds like a scriptural mandate ("command") for capital punishment. Is it?

 

There are distinctly different Greek words that translate into English as sword. RHOMPHAIA means a saber, a long and broad cutlass, a broadsword. This is the instrument used for decapitation, capital punishment by sword. As a Roman citizen, Paul had the right to be executed by broadsword and not by crucifixion. My bet is that Paul knew the Greek word for the sword used for capital punishment. This is not the word used in the Greek in Romans 13:4.

 

MACHAIRA, the Greek word used in Romans 13:4, means a short sword worn on the belt, a dagger. This is not the instrument used for decapitation, but was used as a metaphor for the authority of the courts to inflict punishment in general.

 

Also, the word execute is not in the original Greek scriptures of this verse. The word execute has been inserted by the translator into the Authorized King James Version to provide a verb so the sentence makes sense in English. The Greek original does not have this verb. The English translation uses it as a synonym for bring or inflict. Because the word "execute" is not in the original Greek but is inserted by the English translators, it appears in italics in most editions of the Authorized King James Version.

 

Given these two facts of the original Greek of the Scripture verses, the verse in Romans 13:4 makes complete sense in English without the death penalty.

 

But if thou do that which is evil, be afraid; for government beareth not the power of judicial punishment in vain: for it is the minister of God, a revenger to carry out wrath upon him that doeth evil.

 

The verse is a mandate for retributive punishment on evildoers; but it contains no mandate for the death penalty. Rather, it supports the power of legitimate government by judicial authority to impose punishment for crimes.

 

You also quote Genesis 9, the so-called Rule of Blood as God's mandate for capital punishment. That verse reads:

 

"Whoever shed the blood of man, by man shall his blood be shed; for in the image of God has God made man." New International Version This verse is included in God's blessing of Noah and his family. Genesis 9:1-7

 

A quick reading of this verse without study could create the impression that the Rule of Blood is God's command that the entire world must use the death penalty; however, there are some major problems with that conclusion.

 

First, the text is in poetic form which was never used for biblical law.

 

Second, American Christians only intend to treat this as God's command for capital punishment in the case of first-degree murder. But if these verses are actually God's command to execute those who take human life, there is no basis for any limitation in the text itself. If God is commanding the use of executions in these verses, then their plain reading seems to cover all taking of human life: accidents, negligent homicide, even self-defense. To my knowledge, no Christians in America support such broad mandate for the application of the death penalty under the Rule of Blood. Yet, there is no Scriptural basis for applying it at all unless it is unlimited. There is no intellectual integrity in claiming it is God's mandate and then rewriting it to our liking.

 

Third, there is no rational basis to explain why the words in the Rule of Blood are God's explicit command to be followed literally, but the other portions of this set of verses, called the Noahic blessing, are not to be taken literally or treated as binding law: e.g., the prohibition on consumption of rare meat, or the statement that any animal which kills a human must be executed.

 

Finally, if the Rule of Blood is indeed God's command, God's perfect will, that anyone who kills another human being must be executed, God would surely apply this uniformly because God is infinitely just. Consequently, a prominent first-degree, premeditated murderer after the blessing of Noah's family but before the handing down of the Mosaic Law would have to be executed.

 

What does the Bible report as God's punishment for the most significant and prominent first-degree murderer during that period, under the Rule of Blood?

 

That person in the Bible is none other than Moses. And God deals with Moses the same way God dealt with Cain: banishment from society. Our modern term for such banishment is prison.

 

God seems quite consistent in the biblical record of His dealings with Cain and Moses. And He did not execute either one.

 

You also have used the Crucifixion of Jesus Christ as biblical support for the American death penalty. You are not alone. Many pro-death penalty people of biblical faith like to quote the following passage from the Gospel of John as biblical proof that Jesus supports the death penalty. I used to quote it for that reason as well. The scene is the trial of Jesus before Pilate:

 

So Pilate said to him, "Do you not speak to me? Do you not know that I have power to release you and I have power to crucify you?"

 

Jesus answered [him], "You would have no power over me if it had not been given to you from above."

 

The pro-death penalty biblical argument stops right there and fails to quote the rest of what Jesus said. The entire exchange reads as follows:

 

So Pilate said to him, "Do you not speak to me? Do you not know that I have power to release you and I have power to crucify you?"

 

Jesus answered [him], "You would have no power over me if it had not been given to you from above. For this reason the one who handed me over to you has the greater sin." John 19:10-11

 

This full text can hardly be claimed as Jesus' support for capital punishment. Sin is not the word used in Scripture to describe an act that is virtuous. In fact, the Scriptures tell us that Pilate's reaction was based upon what Jesus said:

 

Consequently, Pilate tried to release him." John 19:12

 

The execution of the innocent is no small issue for biblical Christians. Exodus 23:7 warns us not to be involved with the execution of the innocent. Jesus Christ warns us in the verses quoted above not to be involved in the execution of the innocent.

 

Yet, as noted in the U.S. Supreme Court majority opinion in Marsh v. Kansas, authored by pro-death penalty Justice Clarence Thomas, abolition of the death penalty in the U.S. is the only way to avoid the execution of the innocent. (Slip opinion at p. 17) In a concurring opinion, Justice Scalia attacks any concern about execution of the innocent. First, he implies that such a concern would in fact end the death penalty in the U.S. Then he says: "Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation." (Concurring opinion, at p. 19)

 

Such a truism when the penalty is years in prison may not rise to the level of biblical condemnation. But as shown above, that truism is soundly condemned by Scripture when the penalty is death.

 

Those pro-death penalty positions of Justices Thomas and Scalia cannot be supported as biblical positions. Those are mere political positions. The Bible rails against the execution of the innocent.

 

True scholars of the Bible know this. On May 22, 2008, I appeared on a radio show on Inter-Faith Voices opposite Dr. R. Albert Mohler Jr., President of the Southern Baptist Theological Seminary in Louisville, KY. The moderator addressed him with the first question:

 

Moderator: "Just to clarify your position, do you argue that a state or a nation must have the death penalty or that it is morally permissible if it so chooses?"

 

Dr. Mohler responded correctly:

 

"… I would not say that it is absolutely mandated that a society must do this. But certainly it is permissible.…

 

In his next answer, Dr, Mohler, went on to qualify that permissibility:

 

Moderator: "So, you would see it [the death penalty] as preferable, perhaps?"

 

Dr. Mohler: "Yes. With all the conditions being met for the penalty to be just in its application. With all the right kind of structures for the right conducting of trial and the establishment of guilt and all the rest."

 

Dr. Mohler's answer was exactly correct. The problem is that with respect to the U.S. death penalty those conditions are not met, the right kind of structures do not exist, and the biblical standard of absolute certainty of guilt is not the standard for execution in any U.S. system: federal, military or state.

 

Mr. Michaels, my biblical studies in this area led me to actually reconstruct the death penalty in the Bible the way a lawyer would-procedural and substantive law. I identified 44 absolute legal requirements of the biblical death penalty in order to comply with the dictates of Scripture. Then, I took the American death penalty and compared it to the list. We are zero for 44!

 

The only possible conclusion based upon what is actually in the Bible and the Scriptural requirements for permissible use of the death penalty is that we cannot support the U.S. death penalty with the Bible. There is a death penalty in the Bible-but it has nothing to do with what we are doing in America. And we cannot use the Bible to support the American death penalty.

 

I would not expect you or anyone else just to take my word for it. That is why I wrote the scholarly book: The Biblical Truth about America's Death Penalty. It is available on Amazon. Please read it and then I look forward to your questions and your comments.

 

My dear Christian friend, God bless you, protect you and keep you strong.

 

Yours faithfully,

 

Dale S. Recinella, J.D., M.T.S.
Catholic Lay Chaplain
Florida Death Row

 


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The Problem with Eyewitness Testimony

Posted by Zac Stone on March 22nd, 2011
Franky Carrillo, celebrating upon his release from prison.

A man who served 20 years in a California prison for a drive-by killing he did not commit was released last week after eyewitnesses recanted their testimony and a judge overturned his conviction. The case of Francisco Carrillo highlights the deleterious effects eyewitness testimony can have on a defendant's chance of receiving justice. Though jurors tend to weigh eyewitness testimony heavily, more wrongful convictions are caused by misidentification by eyewitnesses than by all other factors combined.

In 1991, Scott Turner was a teenager and a member of the Neighborhood Crips gang. When faced with a "six-pack" of photos from the police after witnessing his friend's father shot dead in front of him, Turner identified rival gang member Francisco "Franky" Carrillo as the perpetrator. It was not until six months later that the other five teenaged boys who witnessed the crime were asked to identify the man, well after Turner had shared with his cohort which photo he selected. Dameon Sarpy, the victim's son, as well as Turner and three of the four other witnesses recanted earlier testimony in which they had all accused Carrillo with varying degrees of certainty.

The circumstances of Carrillo's case exemplify many of the issues that surround prosecutors relying heavily on eyewitness testimony. In what are considered the "system variables" affecting identification (those the criminal justice system can control), police procedures can and do contribute to misidentification. Law enforcement agencies frequently ask eyewitnesses to identify perpetrators from a six-pack, or six mug shots grouped on a page; witnesses often wrongly assume the perpetrator must be among the six options (not always because of instructions they may or may not receive), so many witnesses thrust into this situation engage in "relative judgment," in which they pick the individual that most closely resembles their memory of the perpetrator. This effect is exaggerated when police employ the "show-up," by presenting a witness with a suspect they've detained, sometimes in shackles surrounded by officers or in the backseat of a squad car. Law enforcement organizations argue that the show-up enables them to quickly release a suspect if he is not involved, but it is a natural inclination for a witness to assume guilt in such a situation, whether the suspect is a known gang member, a star athlete, or their neighbor. Not necessarily out of malice, but subconsciously or in an effort to close a case, law enforcement officials can also offer witnesses verbal suggestions or non-verbal cues that affect their memory of the event and perpetrator.

Witnesses have been known to change their description of a perpetrator after learning about a particular suspect, or to offer hesitant identifications from lineups only to assert certainty in court. The jury deadlocked in Carrillo's first trial, when Dameon Sarpy testified that he was "pretty sure" Carrillo was the shooter. Sarpy testified with confidence in Carrillo's next trial, which resulted in his conviction and two life sentences. Two decades later, Sarpy admitted that Scott Turner had told him whom to select, and Turner apologized in court and asked for Carrillo's forgiveness. After the recantations and a dramatic reenactment of the crime on a dark street in Lynwood, Judge Paul A. Bacigalupo was able to determine Carrillo's conviction had been wrongfully handed down.

Memory distortion in eyewitnesses can be caused by innumerable factors, however, not limited to those system variables. Included among the "estimator variables" (those outside the control of the criminal justice system) are distractions like a gun (called weapon focus) or inclement weather, lighting and location of the crime, race (particularly when a witness is of a different race than the assailant), and the stress felt during a crime, especially when the threat of violence is high. It is safe to say memories don't exist in isolation, but rather among other memories and thoughts and images that can interfere with one another. Memory is far from sacrosanct, yet juries give overwhelming preponderance to eyewitness testimony, which then results in wrongful convictions, just like Carrillo's.

Studies of inmates exonerated by DNA evidence performed by the Innocence Project have found that a full three quarters of post-conviction exonerations involve mistaken eyewitness identification testimony. As for its role in capital punishment, the Center on Wrongful Convictions studied eyewitness testimony in the cases of 86 defendants sentenced to death, but later exonerated, and found that misidentification played a major role in convicting more than half of them, and that eyewitness testimony was indeed the only evidence used against 38 percent of the defendants.

Certain safeguards can and should be put in place to ensure, for instance, that the composition of a lineup reflects the witness' description of a perpetrator, and does not allow the suspect to noticeably stand out. Officers administering photo and live lineups should be unaware of the suspect's identity - misidentification is drastically reduced when tests are administered blind, so to speak. Witnesses ought to be instructed thoroughly and made aware that the perpetrator may not be included among the lineup. Additionally, presenting suspects sequentially, and not all at once, has been shown to counteract the relative judgment witnesses engage in when faced with a select group of possible suspects. After identification, a witness should state their level of confidence in choosing one suspect, and the entire proceedings ought to be recorded from beginning to end, so the fallibility of memory may play a less significant role beyond the initial identification. By employing these precautions, we may slightly correct for our impressionable memories and keep more innocent people from landing in prison or dying at the hands of the state.

Moments after being released from a Los Angeles jail on March 16th, Franky Carrillo thanked his legal team (full disclosure: Ellen Eggers, all-star attorney with the state public defender's office, is on the DPF board of directors), and offered this understated, but apt summation, "It's been a long journey. Initially it started with an injustice, but finally justice has prevailed, and I'm excited," presumably to start his life after our justice system took it away so callously.

Innocent people who find themselves accused of crimes rarely expect prison time and generally trust in the system to mete out justice fairly, but those without a crack legal team and a sympathetic judge, like Carrillo 20 years ago, may very well find it difficult overcoming long entrenched flaws in our justice system.

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Georgia Department of Corrections Illegally Imports Lethal Injection Drug

Posted by John MacGregor, Guest Blogger on March 16th, 2011

Earlier this week we noted the mounting difficulty states are having procuring lethal injection drugs after pharmaceutical companies began deliberately pulling their products off the market to ensure they wouldn’t be used in executions. For Georgia this crisis escalated today when their cache of lethal injection drugs was raided by the DEA after allegations came to light that the Department of Corrections was possibly not in compliance with regulatory laws when it imported its shipment of the sedative thiopental.

Given the dwindling supply of the drug in response to the de facto drug company boycott, the Department of Corrections had to take extraordinary measures to procure it – contacting a foreign company directly to cut a deal. The Department wired the company $340.41 in exchange for 50 vials of the sedative, but neither party declared the shipment to the DEA, possibly violating the Federal Controlled Substance Act.

In a macabre way, it is almost comical how far out of our way we are willing to go to kill our inmates. Should we pause to reconsider the death penalty when nearly every drug company – the only entities that could stand to profit from an execution – cease producing thiopental in protest of capital punishment? Should we reconsider the death penalty after innocent inmates are exonerated? Or perhaps when the alternative punishment of life without parole achieves the same goals at a fraction the cost? On a certain level it is curious that, to some, the illegal importation of a schedule III drug from another country makes more sense than abolition.




An Open Letter to Governor Jerry Brown: Smart on Crime Solutions to the Budget

Posted by on March 16th, 2011

Originally appeared in The Los Angeles Sentinel on March 11, 2011

Dear Governor Jerry Brown,

In 1992, several key organizers in the Watts Community, including myself, organized a peace treaty between warring gangs in Los Angeles that changed the quality of life in our community. You are no stranger to our work in Watts. When Dwayne Holmes, an anti-violence activist from the Imperial Court Housing Projects, was wrongly accused and convicted of a crime he did not commit, you came out of retirement and advocated for his release. As a result, we developed a deep, personal relationship.

In the summer of 1996, my family and I spent several days at your home in Jack London Square. My son Terrell was 11 years old then. I remember him climbing into your loft and listening to you talk about the importance of public safety on your "We the People" radio show. He never forgot that. When we visited the State Capitol for the first time, he urged me to take him to see your picture in the Gallery of Governors. He said to me, "Dad, he's one of the good guys. If he was Governor now, he would help you stop the killing." I said, "Yes he would, son."

On January 10th, 2004, my world changed when Terrell, home from his first semester at Humboldt State University, was murdered. Even though he had never been involved with a gang, he became a victim of the random gang violence prevalent in our community.

The same year my son was murdered, the Attorney General's office released its annual report, Homicides in California. The report presented a disturbing picture of violence among African Americans in Los Angeles County. The African American homicide rate was more than twelve times that of whites and more than three times that of Hispanics. Though African Americans only represented 6.7 percent of the population, they comprised an alarming 32.1 percent of homicide victims in California. Los Angeles County had the second highest murder rate in California. Similar statistics are found in the homicide reports released during your tenure as Attorney General.

Today, there is still a lot of work that needs to be done. Los Angeles has seen a decrease in gang violence and homicide over the past twenty years due to the continued efforts of gang intervention and prevention workers, but we need more programs and services for at-risk youth. Unfortunately, social services like these are usually among the first services thrown on the chopping block during budget crises.

Before releasing your recent budget proposal, you warned that deep cuts to social services would be made across the board. You also promised that everything would be on the table. However, one particular money pit has remained not just unscathed, but also unexamined: the death penalty.

Each year, the death penalty costs California taxpayers $126 million more than it would cost if all of those currently on death row were sentenced to life without the possibility of parole. On top of that, taxpayers will spend $400 million if construction of a colossal new death row housing facility moves forward. All together, we will waste $1 billion over the next five years on the death penalty.

When I imagine how to keep my surviving children and grandchildren safe, the death penalty does not come to mind. Violence prevention, education, mental healthcare, and other social services are what make a real difference in our communities. Let's protect our youth from random violence, especially African Americans growing up in urban war zones, by putting our state's limited resources to better use. Our state budget must reflect our communities' values and needs.

We all know that times are tough and difficult choices need to be made. Governor, please honor Terrell. Prove you're still one of the good guys. Cut California's death penalty.

# # #

Aqeela Sherrills is one of the original organizers of the Watts "gang truce" in 1992 and is currently the Southern California Outreach coordinator for California Crime Victims for Alternatives to the Death Penalty.

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Inmate Executed with Animal Drug

Posted by John MacGregor, Guest Blogger on March 14th, 2011

Yesterday Ohio became the first state in history to execute a man using a drug normally reserved for animal euthanasia. Before this execution, states had traditionally employed a three injection cocktail that would anesthetize the inmate, stop his breathing, and then stop his heart. In January, however, the company that produced one of those crucial drugs announced it would cease distribution. Hospira, the drug manufacturer, publicly stated that it did not condone capital punishment, and that since it was impossible to ensure that its drugs would not be used in executions, it was pulling its product off the market entirely.

Ohio then sought alternatives, eventually deciding to abandon the three drug approach in favor of a single lethal dose of the barbiturate pentobarbital. This move, however, created a row with that drug’s manufacturer, H. Lundbeck: “It’s against everything we stand for,” a company spokesman said, “we invest and develop medicine with the aim of alleviating people’s burden. This is the direct opposite of that.”

The opposition to Baston’s execution didn’t stop there. Peter Mah, the son of Baston’s victim, publicly voiced his family’s opposition to the execution and capital punishment in general. Mah said that Baston’s execution will not bring back his father and will not alleviate his family’s suffering. The Mah family went even further, backing up their words with a formal request to the Ohio Parole Board that Baston’s sentence be commuted to life in prison without parole. Their request was unanimously denied.

In death penalty cases at least someone is supposed to benefit from the execution. Here, however, it appears as though not a single individual came out ahead. The drug companies vehemently opposed the use of their products, the victim’s family actively tried to stop the execution, and the Bastons eventually lost a family member. Society would have been equally shielded from any future dangerousness if Baston had instead been sentenced to life without parole. From what I can tell, Ohio just spent millions of dollars to go out of its way to do something with no marginal benefit that no one wanted to do in the first place.




In the Wake of Victory, Defeat

Posted by Margo Schulter on March 11th, 2011

Having celebrated the great victory for human rights in Illinois, we must now mourn and protest the execution in Ohio of Johnnie Baston, carried out despite the generous and courageous request for clemency by the family of his victim, Chong-Hoon Mah.

Much news coverage is focusing on the novel pharmacology of this state killing: a single-drug protocol using sodium pentobarbital, often favored as an agent in animal euthanasia. While the question of how best and most "humanely" to cold-bloodedly kill a subdued prisoner in fact highlights that there is no right way to do the wrong thing, let's focus instead on the people whom Illinois Governor Pat Quinn embraced so movingly in his statement yesterday, but whom the Ohio Parole Board and Governor John Kasich disregarded in their lethal decision: the victim's family.

Chong Hoon-Mah, a South Korean journalist who immigrated to the United States and became the owner of a wig store in Toledo, Ohio, was brutally murdered during an armed robbery of his store in 1994. His death by a bullet to the head at point-blank range was described as an "execution-style murder."

But his son, Peter Mah of Chicago, and other members of his family didn't want the added tragedy of a new premeditated killing: that of the convicted killer, Johnnie Baston. As Mah explained:

"The death of Johnnie Baston isn't going to do anything that's going to bring back our father, give us any closure or gratification."

Peter Mah accordingly signed an affidavit as a representative of his family asking that Baston's death sentence be commuted to life imprisonment. At the clemency hearing this February, Ohio prosecutor Mary Sue Barone, who helped convict Baston of the crime in 1995, spoke on behalf of the Mah family:

"I have the utmost respect for anybody who could be so magnanimous and big-hearted and full of faith to rise above what the popular faith would be: Go get 'em, an eye for an eye."

In fact, when members of the public are invited in scientific polls to pause and consider the alternative, the "popular faith" favors permanent imprisonment or life without parole rather than execution, and overwhelmingly so when life without parole is coupled with restitution to the victim's family and society.

As Peter Mah explained earlier this year, he and his family are focused on healing:

"We just try to go on as normally as possible. We discuss this issue every once in a while, but we don't want it to take over our lives again. It seems that it's out of our hands so there's really nothing that we can do now."

These words eloquently express the position of many family members of murder victims against the death penalty who may feel powerless to halt the machinery of state-sponsored homicide.

However, one detail that gives cause for hope and renewed resistance is that Peter Mah is a resident of Chicago's Lincoln Park, where Governor Quinn's historic bill-signing ceremony yesterday has liberated Illinois, the Land of Lincoln, from the specter of more senseless state killings. Together, we are not powerless: can Ohio, and California, be far behind?

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Illinois Says No to Capital Punishment

Posted by James Brockway, Guest Blogger on March 9th, 2011

Illinois Governor Pat Quinn signed a bill today which made his state the 16th to abolish its death penalty (Take action to thank him now).  The bipartisan bill, which passed the state legislature in January, commutes the sentences of Illinois’ 15 death row inmates to life without parole, and reallocates the funding previously slotted for capital defense to law enforcement training and increased restitution for victims’ families.  

Quinn’s decision is the culmination of years of public debate that has been raging since at least 2000 when then Governor George Ryan declared a moratorium on executions.  For Governor Ryan, the state’s system looked increasingly broken, and the probability that innocents would be executed was too great to keep moving forward with capital punishment absent serious modifications. In the following eleven years, the state created two study commissions and attempted to implement multiple reforms to resolve these concerns, but found that such efforts were both ineffective and too costly.  Governor Quinn’s decision marks an awareness of the diminishing returns intrinsic to the already extremely expensive system, as attempts to make capital punishment ‘fair’ were always going to be more costly and less effective than abolition.  As Quinn put it, “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.”  He went on to note that in a world of limited resources, it was wiser policy to take “the enormous sums expended by the state in maintaining a death penalty system [and spend them] on preventing crime and assisting victims’ families in overcoming their pain and grief.”

Quinn did not make this decision lightly, as shown by the two-month wait between the bill’s passage and his signing it into law.  He carefully considered arguments from supporters and opponents, taking a particularly hard look at the feelings of the family members of murder victims.  In his statement, the Governor acknowledged the unimaginable heartache that accompanies losing a loved one and made clear that he understood and could not blame families for desiring retribution.  His decision to sign the bill, however, was motivated by numerous conversations with families who felt that the death penalty only prolonged their pain and suffering.  By ensuring that murderers are locked away for life, Illinois’ policy will help victims avoid years of painful hearings while also providing the state with the funding necessary to prevent similar crimes before they happen.

Illinois decision to abolish should be understood as part of a national trend away from capital punishment, as it is the fourth state in as many years to end its death penalty.  New Jersey and New York both removed all their prisoners from death row as of 2007, with New Mexico following suit two years later.  Today finds the fewest number of states’ practicing capital punishment since its reinstatement in 1978, and it appears as though the number could drop even lower as several other states are currently considering abolition with bills in various stages of debate in Connecticut, Florida, Kansas, Maryland, Montana, and Washington.  

Governor Quinn’s decision should provide inspiration for death penalty opponents nation-wide, as his actions show that there is nothing inevitable about capital punishment.  As concerns over the cost and fairness of the death penalty rise, public opinion has swung increasingly against it, suggesting that a post-death penalty America may soon be a reality.  Illinois is not the first or last step in the process, but it is an important one nonetheless, as each victory adds momentum to the push for more effective alternatives to capital punishment.




The Skinner Decision

Posted by John MacGregor, Guest Blogger on March 9th, 2011

Earlier this week a US Supreme Court decision allowed a death row inmate to sue to gain access to DNA evidence that could prove his innocence. Hank Skinner, the condemned man, was stuck in a legal no man’s land between the two avenues generally used in such cases. While Mr. Skinner initially tried employing a federal civil rights law known as Section 1983, the lower Courts ruled that he should have instead filed a petition for habeas corpus. Habeas corpus, however, would not have been appropriate in this case either, as inmates file habeas petitions when they seek “immediate or speedier release from confinement.” Mr. Skinner, however, was simply asking for access to evidence that could prove his innocence.

Skinner was, in essence, left with no legal remedy to his situation. The Court’s decision fixed this problem by permitting Skinner to file his suit in court under Section 1983. In her opinion, Justice Ginsberg noted that the decision does not necessarily imply that Skinner should win his lawsuit, simply that he has a right to file one. This case exposes an unsettling gap in our justice system’s prosecution of capital murder cases. In his 1972 opinion for Furman v. Georgia, Justice Stewart noted that the death penalty differs from all other forms of punishment “not in degree, but in kind.” With this concession that “death is different,” the Court called for a heightened level of scrutiny and due diligence in capital cases.

In Mr. Skinner’s case, the prosecutor argued that the DNA testing would impose “unacceptable burdens” on the government and victims, and that “no item of evidence exists that would conclusively prove that Skinner did not commit the murder.” This curious wording flirts with the implication that the burden of proof rests with the defendant rather than the prosecutor. By giving Skinner the opportunity to argue his case, the Supreme Court has taken a crucial step toward ensuring that Justice Stewart’s standard is indeed adhered to. Given Skinner’s close call, however, I wonder if each of the 3,000+ inmates currently on death row in the United States has been given this satisfactory level of heightened scrutiny in their legal proceedings.





Gender Bias and the Death Penalty

Posted by James Brockway, Guest Blogger on March 2nd, 2011

In an interesting new study, University of San Francisco Law School Professor Steven Shatz and New York Civil Liberties Union Attorney Naomi Shatz explore the relationship between gender and California's death penalty. While much scholarly attention has been devoted to the way that racial and class dynamics influence which crimes and criminals garner capital trials, similar analysis regarding the gender of victims and defendants is relatively scarce. In attempt to explain the gender disparities in capital cases, the Shatzes examine the "chivalric norms" embedded in the criminal justice system. Using new data collected from Californian first degree murder trials, their article, Chivalry Is Not Dead, looks at the way ideas about women's roles in society influence when juries and prosecutors decide the death penalty is a necessary remedy and then asks important questions about the constitutional ramifications of this "chivalry effect."

The Shatzes describe chivalry as the cultural norms and procedures which governed the behavior of knights in medieval Europe. These codes were meant to provide knights with the standards by which they could regulate their use of violence, limiting its expression to only those instances in which it was necessary to preserve honor and other knightly virtues. Central to these chivalric norms was a particular, gendered, relationship between the autonomous knight and the frequently agency-less maiden who was the object of his protection and for whose sake he could legitimately kill. There were no female knights; in fact, the prevailing social norms afforded women a role equivalent to that of a very valuable piece of property which, while it had to be defended at all cost, could also be used by the knight in whatever manner he saw fit. Chivalric codes saw women as lacking the physical, moral and intellectual fortitude to act as their own guardians, which, in turn, necessitated their control and management at the hands of their fathers, brothers, and husbands. There was also an important class element to these codes, as they only governed interactions between members of the knightly class-their social inferiors were not thought capable of harboring chivalric virtues, and thus did not deserve to benefit from them. The result was that chivalry was meant to protect only a certain type of woman, the "lady," who "embodied ideals and stereotypes of womanhood and femininity."

Chivalry did not die with the rise of the modern state, but instead was incorporated into the legal and social apparatuses of these new democracies, including our own. A particularly harrowing example can be found in the all too common lynching of black men who threatened the honor of white women in the post-reconstruction South. These values were also reflected in legal doctrine as seen in the Supreme Court's repeated finding that the exclusion of women from social life, be it legal practice (Bradwell v. State) or jury duty (Hoyt v. Florida), was constitutionally permissible given the state's justifiable interest in protecting women's functions as mothers and homemakers.

The tide began to turn in the 1970s, when feminist critics successfully challenged such restrictions on equal protection and Title VII grounds. While progress is being, and continues to be, made, chivalric norms are still very much alive in American jurisprudence, especially as regards our criminal justice system. The Shatzes highlight their presence in laws which govern justifiable homicide, noting that self-defense and crime of passion statutes have their historical roots in laws which permitted honor killings, and that the subject who defends himself or acts out of passion is implicitly assumed to be a male one who has both the physical and social ability to exercise violence in this way. They also locate these norms in rape laws which only punish certain types of rapes, targeting dangerous strangers who threaten women's virtue, while making it much harder to prosecute similar crimes committed by acquaintances or husbands.

The relationship between gender and the death penalty has generally been discussed in terms of the relative infrequency with which female defendants receive death sentences. The chivalry hypothesis advanced by the Shatzes helps explain this discrepancy, as the tendency to view women as less responsible for their actions causes legal decision-makers to want to protect female defendants from the full force of the law. The hypothesis would also suggest that crimes against women would be more likely to result in death sentences as these murders represent attempts to defile the pristine womanhood which is one of society's most valuable resources.

To test their predictions, the Shatzes analyze data from 1299 cases of defendants convicted of first-degree murder in California from 2003 to 2005. California provides a particularly interesting test case, as the wide latitude prosecutors and juries are afforded to decide when to impose a death sentence allows us to look at the effects of cultural norms on decision-making in a way which is not possible in states with stricter guidelines. In roughly 85% of the studied cases, the defendant was factually death-eligible given the relatively wide range of special circumstances that California law recognizes as justifying the death penalty. Of that 85%, 5.5% of defendants received death sentences.

As predicted, women were rarely seen in that 5.5 %. Of the 51 women defendants in the sample, only one received a death sentence, and her crime, poisoning her husband, violated the chivalric codes which emphasize equal combat between equal adversaries. While this result might be too small to generalize, when synthesized with other studies, the Shatzes found that only 1.2% of California death sentences went to women defendants even though they comprised 5.5% of the death-eligible population. Moreover, those women who were sentenced to death were generally from society's margins and otherwise broke with the conventional definitions of womanhood.

Even more striking was the way the victim's gender affected the likelihood of the death penalty's imposition. In single-victim cases where the victim was female, the defendant was seven times more likely to receive a death sentence then if the victim was male. This finding was consistent with results from other, earlier, studies. The disparity persisted even when rape-murders, which are unusually likely to result in death sentences (and have primarily female victims), and gang murders, which have unusually low death-sentence rates (and have primarily male victims), were excluded from the analysis. The analysis also showed that this tendency to sentence the killers of women to death did not extend to instances of domestic violence where the percentage of death sentences was below the average for single-victim murders. Taken together, the study shows that the killers of women are more likely to be executed, and that this difference is too large to be explained simply by other distinctions in the types of murders which take female victims versus those that do not.

The Shatzes conclude by noting that the way we impose the death penalty is a product of social mores which reinforce a view of women as both less responsible for their actions and less capable of defending themselves. The finding flies in the face of the post-Fuhrman promise that the death penalty would be applied in a rational and non-arbitrary way, and in fact suggests new equal protection concerns which face those accused with capital crimes. While the essay only hints at what new legal strategies their findings make available to death penalty opponents, the Shatzes' work provides valuable insight into the dynamics which characterize the way the death penalty is actually implemented. Their research not only helps to build bridges between feminist legal scholars and anti-death penalty advocates, but also holds up a mirror to the way the death penalty reflects and magnifies societal biases. It is only by becoming conscience of these effects that we can begin to combat them, and in this way Chivalry Is Not Dead makes an invaluable contribution.

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Oklahoma: State-sponsored murder-suicide repeats itself

Posted by Margo Schulter, Guest Blogger on February 24th, 2011

For the mass media, Oklahoma's December 16 execution of John David Duty was mainly notable for marking the first use of sodium pentobarbital, a drug often used in animal euthanasia, for the judicial homicide of a human being. The scarcity of the traditional execution drug sodium thiopental that led to this substitution is indeed newsworthy as it reflects the growing unwillingness of pharmaceutical firms and medical professionals to participate in executions, as well as the determination of abolitionist countries such as the United Kingdom and Italy to prevent the export or manufacture of such drugs for the purpose of state-sponsored killing.

However, the case of John David Duty is even more noteworthy because, like the case of Oklahoma prisoner James D. French who was executed in 1966, it is a textbook example of "suicide by execution," where a person commits murder in order to be executed. Far from "deterring" such murders, the prospect of suicide through state execution provides the main motive for the crime.

James French, the only prisoner executed in the US in 1966, had been convicted in 1958 of murdering a motorist, a crime motivated by a desire for suicide through execution, but received a life sentence instead. Then, on October 17, 1961, he strangled his cellmate Eddie Lee Shelton in order to secure his own death via Oklahoma's electric chair.

An interesting aspect of the case was the involvement of Dr. Louis Jolyon West, a psychiatrist at the University of Oklahoma Medical School who testified for the defense on the issue of French's possible insanity. This experience and others led West to become an eloquent opponent of the death penalty, pointing especially to the
murder-suicide syndrome and other brutalizing effects of state killing which actually serve to incite rather than deter murders.

Professor Katherine van Wormer at the University of Northern Iowa, like the late Dr. West, has found murder-suicide through execution to be a powerful argument against the death penalty. Indeed, there may be no sharp line between the indifference of many serial killers toward their own lives and those of their victims.
In fact, Dr. van Wormer's research indicates that the quest for suicide-by-execution which motivates killers such as French and Duty is often a solution to their own, failed attempts at suicide.

Like French, John David Duty was serving a life sentence, though his crime was not murder, but instead was a brutal combination of armed robbery, kidnapping, first degree rape, and shooting with intent to kill. Seeking an escape from serving his full sentence, Duty strangled his cellmate, Curtis Wise on December 13, 2001. He subsequently pled guilty to first degree murder, and requested the death penalty, waiving any presentation by his attorney of mitigating factors which might call for a sentence of life without parole.

While the prosecutor and courts of Oklahoma seemed quite ready to grant Duty his death wish, a powerful voice for life was the victim's mother, Mary Wise, who testified in the penalty phase for permanent imprisonment. Ms. Wise, like many families of murder victims, showed great courage in opposing the death penalty while seeking a higher justice for her son through Duty's proper punishment:

"I don't believe he ought to have a choice. I think he ought to sit in that cell and face those four walls and think about what he did for the rest of his natural-born life. And I hope and pray to God that you live to be 110 years old, because that's how long I want you to think about what you did."

Even the Oklahoma Court of Criminal Appeals, in affirming what the trial judge termed a "textbook case for the death penalty," recognized that the official machinery of death was evidently being used as a tool for murder-suicide:

"Duty is a long time prison resident who sees death as a better alternative to life without parole. The killing of his cellmate was a tool for his desire to die. Although it seems that Duty is using the state to assist him in suicide, the death penalty is clearly indicated in this case despite Duty's personal wishes."

In fact, by becoming a partner to Duty's murder-suicide pact, the State of Oklahoma not only granted this killer his wish and provided an ongoing incentive to kill for prisoners or others who may wish to follow in the footsteps of French and Duty, but has also disregarded the wisdom of the victim's mother.
In doing so, Oklahoma has brought itself down to Duty's murderous level, providing us with a brutalizing demonstration of how violence begets violence.

The Duty case demonstrates the necessity of adopting permanent imprisonment as society's ultimate sanction. This would at once render suicide-through-execution obsolete as a motive for murder, while at the same time it would allow us to spend our resources making our streets and prisons more safe and secure, as well as offering more adequate assistance to families of murder victims like the courageous Mary Wise.




Life Without Parole: The Soft Option?

Posted by Sheila Michell, Guest Blogger from the UK on February 24th, 2011

On February 8t of this year, 36 year-old Larry Countee received a sentence of life without the possibility of parole in Chicago's Cook County Court. Countee earned this punishment for the terrible murders of his mother, grandmother and uncle and the attempted murder of his sister, all committed during his 2006 burglary of their family home.

In delivering this sentence, presiding Judge Marcus Salone commented that life in prison was harsher than execution, noting that "I have visited the penitentiary, and I would rather die than spend the rest of my life there…Mr. Countee is a young man who will for the balance of his life spend every day knowing exactly what he did". Two days later, Countee began this final chapter in his life at Crest Hill Illinois's Stateville Correctional Center.

While there are those who would argue that Countee should have received a death sentence, I believe that Judge Salone made the right decision. To see why this is, we should look at the sentence's impact on the individuals affected by it.

We should first consider Countee's victims: his teenage sister, aunt and the rest of his family. They have all suffered immensely, their "lives … shattered by the most horrific crime imaginable: Our entire family … dead." In the four years since the crime was committed, the family has had to struggle daily with the cases' lack of resolution. While nothing can restore their family and wipe away their pain, the family is now afforded the opportunity to begin moving on with their lives. Had Countee been sentenced to death, they would have been subjected to years of appeals and press attention that would reopen these old wounds, and ultimately would have had to face the traumatic execution of a man who is still a member of their family. Countee's life sentence allows them to go on without the shadow of appeals and execution hanging over their heads while still affording them the knowledge that this murderer will spend the rest of his life in the ignominy of a prison cell.

We should also consider the positions of all those people who are involved in executions, duty bound to take the life of another human being regardless of their personal beliefs. Even guards who support the death penalty mention the great stress they experience while participating in executions, and there are many prison chaplains, like Rev. Caroll Pickett, and wardens like Ron McAndrew, who have come to deeply regret the part they have played in this cruel charade. This pain that accompanies executing another human is enormous, and I believe no one should be put in this position. As 21st century citizens, we have socially and psychologically progressed beyond the rough justice of the past, when men like the United Kingdom's last hangman, Albert Pierrepoint, took pride in carrying out their jobs with maximum efficiency. And, even then, it seems hard to believe that Pierrepoint and his ilk were not haunted in their later years by the faces of those they had killed. Why should all these people have to bear the brunt of one man's crime, especially when the best evidence suggests their actions have no real effect on preventing similar crimes in the future?

We should finally consider the fate of the convicted himself, and ask what future awaits Larry Countee. Death penalty proponents are eager to paint life without parole as being fairly cushy, with inmates living at the expense of the state, provided with adequate food, clothing, and, often, even television and a chance to exercise. Put like this, the punishment appears soft, even comfortable.

This account quickly losses its plausibility if one does even cursory research into the living conditions of death row inmates, who are frequently "warehoused" in isolation for the rest of their lives. In Illinois, where Countee will live out his sentence, the punishment means living in endless noise, sharing a cell intended for one inmate. An Illinois prisoner I correspond with described this stark reality, "I feel as if I'm in a coffin. There is no room to move around." There is no freedom for lifers: the sentence means you will never be able to have control over doors and windows, never have personal privacy (even when it comes to using the bathroom), and you will be the victim of body searches whenever you move any distance from your cell, which would also be liable to be searched in your absence. It is also a stretch to call prison food adequate, as you will be fed just enough to keep you alive, ensuring you are regularly hungry. Medical treatment is similarly scant: treatment is bare bones at best, and you no control over it, even when you the funds to pay for more.

There will be little quality of life for Mr. Countee who will never be allowed to take a walk or see the natural world. He will never have free communication with the outside world as phone and visiting opportunities are strictly limited, and computer access is prohibited. He will not be allowed to handle money. He will live in a noise-filled, cramped, and violent world of rules and regulations, having to rely on others for his every need. He has lost his freedom to live his life as he would and he will never have it again. I think this is as harsh a punishment as is imaginable in a civilized society.

One opportunity this harsh world does provide Mr. Countee is that of personal reflection-he will suffer every day for his terrible actions, and he will have all the time in the world to try to come to terms with what he did. This will take all his will power and will in no way be made easy for him, but the possibility for personal growth and reform does exist. In my ideal world this opportunity would be made more available to more inmates. My research has led me to a program in an Alabama prison which helps inmates do this type of soul-searching, and I believe the corrections system would do well to actively follow this model. To offer such opportunities would not cost Illinois any more than the cost of one death penalty trial, and the personal transformation which is its potential payoff is well worth it. After all, isn't this the ultimate goal of punishment--to make those we punish better citizens, even if they never leave the prison?

As Illinois's Governor Quinn debates over whether or not to sign the bill to abolish the death penalty that currently sits on his desk, I hope he takes into account all the perspectives I have discussed. By signing this bill, and ending capital punishment in Illinois, the Governor would not be letting inmates off easy. Instead, he would be forcing them to do the hard work of living with their crimes, while at the same time freeing up the time and money necessary to prevent violent crimes before they happen, and to more effectively deter them after they have been committed.

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Thiopental Drama May Delay Executions

Posted by Zac Stone on February 23rd, 2011
Would you buy so much as gauze from this driving school/pharmacy?

A quarter of the United States’ attorneys general, seven Democrats and six Republicans hailing largely from western and southern states, have asked U.S. Attorney General Eric Holder for assistance from the Department of Justice in procuring sodium thiopental, the anesthetic most commonly used in executions.

Death penalty retentionist states have had trouble obtaining the drug since the sole U.S. manufacturer of thiopental stopped producing it and abolitionist European countries have made exporting it for executions nearly impossible.

The attorneys general asked Holder for help in “either identifying an appropriate source for sodium thiopental or making supplies held by the Federal Government available to the States.”

Recently two prisoners from Georgia and one from Arizona were put to death using thiopental purchased last year through a dingy, questionable pharmaceutical wholesaler in London by the name of Dream Pharma. It was reported that all three men – Emmanuel Hammond, Brandon Rhode, and Jeffrey Landrigan – were visibly conscious during their executions, having opened their eyes minutes after being injected with the defective anesthetic, and presumably experienced excruciating pain while pancuronium bromide was used to paralyze them and potassium chloride induced cardiac arrest. This aberration of justice amounts to torture and is most certainly in opposition to the Eight Amendment to the Constitution, which is supposed to protect prisoners from cruel and unusual punishment.

As reported here earlier, attorneys in the U.S. are suing the FDA for allowing the drug into the country without review; across the pond, Reprieve, an international death penalty abolition organization, has filed a legal challenge against the U.K.’s Medicines and Healthcare Products Regulatory Authority (MHRA). In its court action, Reprieve seeks to recall the thiopental supplied by Dream Pharma, which, if successful, would prevent U.S. corrections officials from unwittingly torturing condemned inmates as they did in Georgia and Arizona, by effectively halting executions in the states that purchased the ineffective drug from the one-man pharmaceutical supplier, including California, which bought enough degraded thiopental to botch over 85 executions.

An anesthesiologist at Columbia hospital in New York and expert witness in Reprieve’s lawsuit against the MHRA, Dr. Mark Heath, describes the recent executions in Georgia and Arizona as being “highly atypical…based on my studies of lethal injection, it is very unusual and surprising for a prisoner’s eyes to remain open after the efficacious administration of thiopental.” Heath makes clear that using defective sodium thiopental ensures an agonizing death for prisoners, who endure “asphyxiation caused by pancuronium and the caustic burning sensation caused by potassium.”

While people will continue to debate the death penalty’s merits for many years, there is no question that subjecting prisoners to this brand of torture goes against an array of international human rights treaties and those rights protecting against cruel and unusual punishment guaranteed to all Americans by the U.S. Constitution. To use one more gram of these tainted thiopental stocks from overseas would call into question states’ abilities to ensure that justice can ever be fairly and reliably served.

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Report Makes Important Recommendations on Fixing a "Broken System"

Posted by James Brockway, Guest Blogger on February 23rd, 2011

This month marked the release of an important new report, Smart on Crime: Recommendations for the Administration and Congress, which provides comprehensive analysis of the federal criminal justice system, and lays out extensive recommendations for reform. Coordinated by the non-partisan advocacy group the Constitution Project, the report brings together a diverse coalition of over 40 criminal justice organizations who apply their expertise to advising the Obama administration and the new congress on how to tackle the difficult problems facing our justice system. The report includes a thoroughly researched inquiry into the death penalty and provides insight into how to remedy the lack of constitutional safeguards which currently characterize the system.

The report's analysis of the death penalty begins by taking note of the severity of death as a method of punishment, arguing that because the death penalty is irreversible there is a premium on ensuring its application is fair and equitable. They go on to show that the system as currently constituted does not meet these constitutionally mandated standards, focusing on four major problems areas. The issues highlighted include the lack of adequate review of capital convictions, the significant racial bias in their application, the unfair targeting of the mentally ill as capital defendants, and the woefully insufficient legal representation of the indigent defendants who make up the lion's share of individuals we execute.

Despite persistent concerns about wrongful convictions in capital cases, recent legislation has only made it more difficult for Courts to review challenges to capital convictions. 1996's Antiterrorism and Effective Death Penalty Act has placed severe restrictions on defendants' abilities to seek habeas relief, particularly as those challenges pertain to defendants' claims of actual innocence. The incredibly narrow scope of acceptable petitions makes it close to impossible to correct many constitutional oversights that occur at the trial phase, substantially increasing the risk that innocent people will be executed. This problem is compounded by the fact that defendants frequently do not have access to legal counsel during post-conviction review which leaves them at the mercy of a legal system that has already invested considerable resources in proving their guilt. To insure adequate review, the report recommends attorney general action to provide defendants with counsel, as well as congressional and executive support of amendments to the AEDPA which would eliminate restrictive requirements on appeals.

The problem of racial bias regarding the death penalty has been well documented-a Department of Justice study has shown that 73 % of federal capital cases involve non-white defendants, and research has shown that 40 % of the death row population is African American despite their making up only 12 % of the country's general population. Bias occurs at all levels of the process, as prosecutors are more likely to seek death for white victims, non-white defendants are more likely to accused of capital crimes, and they are less likely to receive pleas which take death off the table. DOJ regulations which ensure that the U.S. Attorney General must review all death-eligible cases contribute to this problem by overly centralizing the process, ensuring an alarmingly small number of people get to make the decision about which cases are worth prosecuting. The report suggests that the first step towards confronting this imbalance is to ensure adequate documentation of the problem which is why independent commissions must be erected to review the relationship between race and capital conviction. Additionally, legislative and executive action must be taken to eliminate racial discrimination in capital cases, including eliminating the excessive peremptory challenges that enable prosecutors to try minority defendants in front of all-white juries. The DOJ should also decentralize its review process to ensure that more eyes take a look at each case, thus increasing the opportunity to catch unjust prosecutions before they happen.

While the Supreme Court has ruled that juveniles and the mentally retarded lack the decision-making competence to be sentenced to death, similar protections have not been extended to the mentally ill who make up an alarmingly high percentage of death row inmates. These individuals frequently lack the self-awareness and control necessary to really understand or govern their behavior, which raises significant ethical questions about considering them fit for execution. The report recommends that Congress change U.S. code to explicitly prohibit the application of the death penalty to these individuals and that the Justice Department similarly commits to not pursue death in these cases.

The final area examined by the report is the lack of representation for capital defendants who generally amongst the poorest members of American society. These indigent defendants often have very limited access to counsel, and when they do, their attorneys are very often under-trained, overworked, and lack the independence necessary to adequately represent their clients. Given the vast resources the state and federal governments commit to capital prosecutions, this disequilibrium should give us pause as the risk that innocents are sentenced to die greatly increases when their lawyers are either unable or unwilling to provide them with meaningful defense. The congress is in the position to begin correcting this problem by increasing the independence of indigent defenders so that they can build their cases without interference from bosses who are also prosecutors. The report thus suggests starting, and adequately funding, an office of the Defender General which would supervise defense attorneys in these cases and provide them with the resources necessary to give defendants a fair shot at fighting their convictions.

While the best way to correct the flaws with the death penalty would be to stop applying it all, the Smart on Crime recommendations represent an important step in the right direction which should be embraced by capital punishment opponents. In addition to providing immediate relief to those currently facing capital charges, these reforms provide the building blocks for the creation of a more just and equitable criminal justice system. Research has consistently shown that one of the main contributing factors to support for the death penalty is citizen's relative ignorance on the subject; in this light, we can see the report and reforms it advocates as playing an important consciousness raising function. By forcing government officials and the public at large to think seriously about the flaws that plague the death penalty, the Smart on Crime report helps direct attention to just how broken the system is which will add increased urgency and support for the search for more effective alternatives.

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Victims Fund Shortfall Highlights Absurdity of California's Death Penalty

Posted by James Brockway, Guest Blogger on February 16th, 2011

California’s victims restitution fund is running out of money. Since its conception in 1965, the California Victim Compensation Program has served as a source of financial relief for crime victims and their families who would not otherwise be able to pay their medical bills and other expenses engendered by the crime. Unfortunately, mounting costs are threatening the programs survival as requests for payment have begun to rapidly outstrip the state’s ability to collect the fines from misdemeanor and felony convictions that keep it running. At the current rate, insolvency seems inevitable as the fund’s debt will reach upwards of $30 million in as little as two years.

In the face of these impending shortfalls, state officials have gathered to consider cost cutting measures, though they estimate that even if the state goes ahead with proposed reductions, the program will still face major financial challenges because of the sheer number of crime victims who are entitled to assistance. To make matters worse, the state has consistently borrowed money from the fund as it attempts to combat its myriad other money problems.

If the state no longer has the cash necessary to help the victims of crimes, this raises the question of what criminal justice programs it deems worth funding in these lean times. Its answer apparently includes spending more than $ 137 million a year to maintain our system of capital punishment. The state is pouring new funds into the death penalty, including a planned $ 400 million on a state-of-the-art death row at San Quentin. These expenditures are not inevitable; in fact, the California Commission on the Fair Administration of Justice estimates that the state could save as much as $ 125 million a year by commuting all of California’s death sentences to life without the possibility of parole.

In a time when our state’s purse strings are being drawn tighter than ever, every dollar spent is one that is not being spent someplace else.  It is unconscionable that California is willing to give millions to execute individuals at what is, at best, debatable benefit to crime victims when those dollars could be used to help the same victims cover costs they have no other way of meeting.  If we are really serious about our commitment to those who have suffered at the hands of criminals, it is time to take a hard look at the death penalty and the enormous financial sacrifices we must make to maintain it.

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Montana Closer to Abolishing the Death Penalty

Posted by Zac Stone on February 15th, 2011

Montana's state senate took a giant leap forward for human rights this week, passing a bill by a narrow margin that would permanently abolish the death penalty in the state.

Supporters of the bill to repeal the death penalty argued that the risk of putting an innocent person to death is simply too high, the financial costs are overwhelming, and the system disproportionately punishes minorities and the poor.

The most emotional pleas in support of the bill came from the loved ones of crime victims, like Diana Cote, whose teenage daughter was murdered in 2007. "The thing that hurt me worst was when people would come up to me and ask [if I wanted to seek] the death penalty." Cote continued, "I said, this person just murdered my daughter and you're asking me if I want to go out and murder him now?" During debate on the bill, its sponsor Sen. David Wanzenried of Missoula added that the necessary and lengthy death penalty appeals  process deprives victims' families of the closure that an immediate sentence of life without parole offers, saying too, "Our current system can't be made fair and it can't be made infallible."

Illinois death row exoneree Randy Steidl also made an impassioned argument against the death penalty, emphasizing the risks of sentencing innocent people to death, as he was once sentenced. Steidl and 19 others were wrongfully convicted and later exonerated from Illinois's death row; their cases influenced Illinois's legislature to pass a bill abolishing the death penalty there earlier this year. Gov. Pat Quinn has until March 18 to sign the bill into law.

Abolition in Montana now faces a huge hurtle in the state house of representatives, where it needs more than tacit support from the overwhelming Republican majority in order to pass. If legislators aren't swayed by the financial aspect - prosecuting capital cases in Montana costs six to seven times more than the $36,000 is costs to simply house an inmate for a year - then hopefully they will heed the impassioned calls of death row exonerees and crime victims' families for abolishing this most unjust punishment.
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Wrongful Convictions and Posthumous Exoneration

Posted by James Brockway, Guest Blogger on February 15th, 2011

For even the most ardent supporters of capital punishment, the issue of wrongful convictions presents a challenge which demands serious attention.  While the growing innocence movement has used many different strategies, one tool which receives inadequate attention is posthumous exoneration.  As Professor Samuel Wiseman forcefully argues in a upcoming article for the Case Western Law Review, these exonerations can give advocates the hard to come by evidence about why and how wrongful convictions occur, and can provide us with insights necessary to institute the reforms to prevent them in the future.

While the innocence movement has existed in one form or another for almost as long as the U.S.’s criminal justice system, it began to take its current shape in 1987 when Hugo Bedau and Michael Radelet published their influential study Miscarriages of Justice in Potentially Capital Cases which documented 350 cases in which individuals had been imprisoned for crimes of which they were factually innocent.  The public interest in wrongful conviction sparked by their work was given a big push two years later when Gary Dotson became the first prisoner to have his conviction overturned on the basis of DNA evidence.  DNA tests have become an invaluable resource as they are able to provide a much higher degree of certainty regarding the defendant’s innocence then was previously available.  As a result, there has been a significant increase in exonerations as DNA tests have led to the freeing of an average of 18 people a year from 2000-2009. 

Exoneration has been incredibly important for those who oppose capital punishment—since the death penalty was reinstated in 1976, 138 death row inmates have had their convictions overturned.  While wrongful conviction is prevalent throughout the criminal justice system, many factors, including the difficulty of investigating capital crimes, the strong motivation for guilty parties to frame others, and society’s demand for quick and harsh punishment, make it disproportionately likely in capital cases.  While organizations like the Innocence Project put tireless effort into remedying these miscarriages of justice, there have been at least ten instances since 1976 when the state put an innocent to death.  Posthumous exonerations can help us ensure that these tragedies never happen again.

There have been five posthumous exonerations in the United States, and three of those cases involved death row inmates who died in prison prior to their execution date.  Because data on wrongful conviction is relatively scarce, exonerations are an important resource for pinpointing where breakdowns in the system occur.  Posthumous exonerations are particularly helpful in this regard because the lack of a living defendant eliminates public uneasiness about releasing supposed criminals, and allows the debate to focus squarely on the social ramifications of wrongful conviction.  These procedures can also help provide a measure of relief to family members of both defendants and crime victims, as well as generally increasing public confidence in a justice system which is frequently perceived as dangerously unwilling to admit its mistakes.

While posthumous exonerations have many benefits, the process is not perfect.  The largest problem is they are very difficult to make happen, as a legal doctrine called abatement provides a strong presumption in favor of the cases of deceased defendants.  Other concerns include a variety of jurisdictional issues that face courts, as well as a tendency, borne out in post-execution hearings regarding the likely innocence of Cameron Todd Willingham, of state officials to politicize the process and willfully disrupt hearings that look as though they might produce unfavorable results. 

These issues highlight the need for advocates to put pressure on their elected officials to establish innocence commissions and otherwise expand opportunities for courts or similar bodies to hear claims of actual innocence.  While there is much discussion of the particular form that these policies should take, what is crucial is that we work to provide a forum in which all potentially meritorious innocence claims can be heard and thoroughly investigated. 

An informed debate about the death penalty cannot occur without access to the facts.  Posthumous exonerations provide an important source of information about how the death penalty is practiced, and force proponents to come face to face with the human cost of the errors intrinsic to the system.

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The Expensive, Arbitrary and Inefficient State of the Death Penalty in California

Posted by Stefanie on February 11th, 2011

One of DPF's Board Members (aka "Lovechilde") is at it again. Check out his latest blog on the death penalty at Justia.com. He concludes:

 "Rather than perpetuating this expensive, arbitrary and inefficient state program, wouldn’t we be better off replacing the death penalty with life sentences, and focusing on crime prevention, crime solving and assistance to crime victims? Just do the math."

We think so.  Maybe that's why we like him so much.

Posted in Blog, Cost, Race, Sentencing | no comments



Judge visits new execution chamber in ongoing lethal injection controversy

Posted by James Brockway, Guest Blogger on February 9th, 2011

This Tuesday marked an important development in the legal battle over California's lethal injection protocol as U.S. District Judge Jeremy Fogel inspected San Quentin State Prison's newly constructed execution chamber. Judge Fogel's visit comes as part of his supervision of the case of Michael Morales who has challenged the constitutionality of California's method for administering the death penalty, arguing that it violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Mr. Morales has been sentenced to death for the 1981 rape and murder of 17-year-old Terri Lynn Winchell. He was scheduled to be executed in 2006 before Judge Fogel ruled that California's execution protocol posed an undue risk of causing unconstitutionally painful death. The ruling identified many serious flaws in the procedure, including inadequate screening and training of execution team members, unreliable and haphazard methods for preparing the anesthetic used in the lethal injection cocktail, and poor lighting and dangerously overcrowding in the execution chamber itself. The Court did provided the state with its choice of remedies, ruling that prison officials must either hire physicians to be present during executions so that someone with medical expertise could intervene if it appeared that anesthesia had failed, or, alternatively, that inmates must be directly injected by a corrections officer to ensure that all components of the cocktail were properly administered. While the state initially chose the former option, it was unable to find doctors willing to be so intimately involved in the procedure. Because prison officials were unwilling to perform the injections themselves, Judge Foley was forced to suspend all executions while the state tried to overhaul its system to avoid potential constitutional challenges.

Five years later Judge Foley has returned to the prison he initially declared unfit to carry out executions. In the meantime, California has introduced a new set of procedures that are currently being reviewed in state court. The state has also spent almost one million dollars on the new facility and plans to commit millions more to expanding the size of the prison's death row. Unfortunately for state prison officials, this exuberance seems misplaced, as both the pending state legal challenges, as well as a shortage of the key execution anesthetic, sodium thiopental, mean that the new facilities may never be used. California's eagerness to appear tough on crime has once again caused us to adopt policies which make no sense fiscally, only adding to the hundreds of millions of dollars a year we spend on capital punishment over what it would cost to commute all sentences to life without the possibility of parole.

While Fogel's impending ruling may not entirely resolve the questions facing California's lethal injection protocol, the careful consideration he has given the matter should give hope to those of us who have serious concerns about the death penalty. We can only hope that this hard look at how it is we actually execute prisoners will spark further efforts to develop more effective, and humane, alternatives.

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Still A Long Way to go

Posted by Yoko on February 4th, 2011

Recently the Japanese prime minister appointed a new minister of justice, Satsuki Eda, who is personally opposed to the death penalty. http://www.abc.net.au/news/stories/2011/01/15/3113514.htm?section=justin

While this is good news, there have been several ministers of justice in the past who were opposed to the death penalty, who still signed death warrants. Therefore, we shouldn’t assume Eda’s personal position will necessarily cause him to act differently. Also Eda recently apologized for his remarks criticizing the death penalty system and announced that he’d like to withdraw the remarks even though he still feels that the system is flawed.

I believe having a justice minister who opposes the death penalty is not enough to sway public opinion; there will need to be other powerful incentives to change public sentiment.

After careful consideration, I believe the following changes need to be made before Japan can successfully move towards abolition:

First, the introduction of “a life without possibility of parole sentence” is extremely crucial because no such option exists in Japan.  Without this option, people will continue to prefer the death penalty to life in prison with a chance of parole when it comes to people who have committed heinous crimes.

Next, it will be very important to provide the public with accurate statistical information which shows that wrongful convictions are always possible, even in cases that first appear to be “slam dunks.”  Last year, Mr. Toshikazu Sugaya was exonerated after serving almost 19 years for allegedly killing a four year old girl. It is said that the police felt pressure to solve the case and indentified Sugaya to assuage the public’s fears. Later their sloppy investigation process was revealed.

Finally, the concept and definition of punishment should be reexamined – I believe that retaliation and revenge are not the same thing as punishment.  Yet it is often said that the death penalty is the most “reasonable” punishment for people who are responsible for atrocious crimes, especially when we consider the victims’ families’ feelings and their sorrow. The government should be more interested in justice than revenge. Punishment should rehabilitate and correct behavior deemed illegal and reintegrate individuals into mainstream society. This process may require some people to spend the rest of their lives in the justice system but people who committed crimes should be able to feel, think and reflect on their transgressions.

I hope that people in Japan will realize one day, as I did, that the taking of another human being’s life is murder whether it is committed by an individual or the government.

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