The Death Penalty Blog : Displaying 71-90 of 350

Remembering Norman Redlich and David Baldus

Posted by on June 15th, 2011

This week has seen the loss of two important figures in the fight against the death penalty. On Friday, Norman Redlich, the former dean of the New York University Law School and a pioneer in the use of pro bono defense for death row inmates, passed away from complications of Parkinson's disease; he was eighty five. Mr. Redlich was joined a few days later by seventy five year old David C. Baldus, a long time professor at the University of Iowa College of Law, and the main author of a series of influential studies regarding racial disparities in the application of the death penalty.

Mr. Redlich, a graduate of Williams College and Yale Law School, joined the faculty of NYU in 1960, and held the position of dean from 1974 to 1988. Mr. Redlich demonstrated heart-felt concern for the rights of indigent defendants from the beginning of his tenure at the law school, and began providing death row inmates at New York's Sing Sing Correctional Facility with free legal representation, ultimately saving five men from the electric chair in the period between 1960 and 1963.

Mr. Redlich continued his commitment to public interest lawyering as head of the Law School, hiring renowned a capital defense attorney Anthony Amsterdam as a professor, and tasking him with creating a clinical education program for NYU students which would provide them with the skills and resources necessary for public service. Because of Dean Redlich's support, the program, while unprecedented at the time, has since been modeled by law schools nation wide, and has helped establish NYU as one of the country's premier centers for the teaching of public interest law, a position it holds to this day.

In addition to his considerable contributions to the fight against the death penalty, Mr. Redlich was a member of the Warren Commission tasked with investigating the death of President John F. Kennedy. In this capacity, Mr. Redlich took the lead in creating the "single bullet theory" which helped to confirm the case against Lee Harvey Oswald as the President's sole assassin. Mr. Redlich also served as New York's corporation counsel and provided legal representation for a number of people blacklisted for refusing to testify in front of the House Un-American Activities Committee.

Professor David Baldus was a pioneer in the use of cutting edge social science research to help make the case against capital punishment. Educated at Darmouth College, the University of Pittsburgh, and Yale Law School, Professor Baldus taught at the University of Iowa Law School from 1969 until his passing.

In 1983, Professor Baldus and his colleagues, Charles Pulaski and George Woodworth, undertook a massive study of the role of race in capital punishment, and their work's impact would reach all the way to our nation's highest court. Using data from over 2000 Georgia murder cases, their research looked into what, if any difference, race makes when it comes to capital punishment. They subjected their data to rigorous analysis, controlling for 230 different non-race variables that could have also had an effect on sentencing, and came to the conclusion that defendants charged with killing white victims were more than four times more likely to receive a death sentence than if their victim had been black. They also found that black defendants were almost two times more likely to be sentenced to death than their white counterparts, and this disparity spiked even further when the victim also happened to be white.

This study ended up being at the heart of 1978 Supreme Court case McCleskey v. Kemp in which the Justices had to determine whether the consistent bias identified by Professor Baldus' work was sufficient to render Georgia's death penalty unconstitutional. In a controversial 5-4 decision, the Court rejected McCleskey's claim, and delivered an opinion that has been described as "the Dred Scott decision of our time."

In addition to his 1983 work, Professor Baldus was the author of two books on the death penalty, Statistical Proof of Discrimination and Equal Justice and the Death Penalty. He also served as Lieutenant in the Army Security Agency during the late 1950s.

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Pentobarbital Supply Now in Doubt

Posted by John MacGregor, Guest Blogger on June 13th, 2011

Lundbeck, the only pharmaceutical company that supplies pentobarbital to the United States, has said that it will take steps to ensure that its drug will no longer be used for lethal injection. Lundbeck expressed moral opposition to the use of its product in executions. In a statement, the company declared that use of the drug in lethal injection proceedings "contradicts everything we are in business to do - provide therapies that improve people's lives." This news comes after a self-initiated industry boycott of sodium thiopental left states scrambling to find a replacement drug. Pentobarbital filled this void, but questions have been raised over the constitutionality of the drug. Little research has been conducted about any possible pain condemned inmates might have to endure with this new combination of drugs; inmates are paralyzed during the proceedings and cannot, therefore, physically express pain. If Lundbeck's boycott is effective, states will have to find yet another alternative drug.

Pentobarbital has been commonly used as an animal euthanasia drug. Recently there was a row over this issue in Texas when the ACLU published a report juxtaposing the state's regulation of veterinarians and prison officials: "Veterinarians in Texas are prohibited from using the combination of drugs that the Texas Department of Criminal Justice has deemed suitable for the execution of human beings," the report finds. The paper also details the numerous medical and professional qualifications veterinarians must have before they are allowed to euthanize animals. Prison officials, however, are granted a tremendous amount of discretion and autonomy when planning and administering a lethal injection execution. The report concludes that "it is no exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings."

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Ohio Governor Commutes Sentence of Innocent Man

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

Yesterday, Ohio Governor John Kasich commuted the death sentence of Shawn Hawkins to life without the possibility of parole.  The Governor’s decision follows last month’s unanimous recommendation for clemency by the Ohio Parole Board.  Mr. Hawkins was sentenced to die for the 1989 murders of teenagers Terrence Richard and Diamond Marteen in Mount Healthy, Ohio.  Mr. Hawkins has persistently and vigorously maintained his innocence.

Kasich’s commutation is his first since taking office in January, and the Republican Governor was careful to point out that his decision was not meant to relieve Hawkins of responsibility for his alleged crimes.  Instead, the Governor decided that the “precise details of [Mr. Hawkins] role are frustratingly unclear to the point that Ohio shouldn't deliver the ultimate penalty in this case."  Gov. Kasich went out his way to emphasize that he had no doubt that Mr. Hawkins played some “material role” in the crime, and seemed satisfied that a life sentence would be a sufficiently harsh punishment given the ambiguities surrounding the case.

While it is undoubtedly great news to hear that Mr. Hawkins life will be spared, Governor Kasich’s decision to stop short of a full pardon is troubling given that the evidence points strongly towards Mr. Hawkins’ actual innocence.  Unfortunately, a combination of inadequate representation and incomplete investigation of other potential suspects has already forced Shawn Hawkins to spend half his life in prison for a crime he did not commit.

The most significant problem with the case against Shawn Hawkins concerns Henry Brown, the state’s one eyewitness to the crime.  Since Mr. Hawkins’ original arrest, Mr. Brown has repeatedly altered elements of his testimony, providing police with wildly differing, and frequently contradictory, accounts of the murders.  Mr. Brown was given full immunity in exchange for his agreement to testify against Mr. Hawkins, though it is looking more and more like the police made the wrong deal: a year after his original testimony, Brown committed an armed robbery eerily similar to the one that took the lives of Mr. Richard and Mr. Marteen, and is currently serving four to seven years for aggravated robbery.  In taking the word of Mr. Brown, the state also willfully ignored testimony from several alibi witnesses who indicated Mr. Hawkins was with them at the time of the crime, and also chose to not follow several leads indicating there were two other men present at the crime scene.  

Other oversights include the police’s ‘loss’ of all the notes they took during their interrogation of Mr. Hawkins, as well as the reliance on dubious forensic science to link one of his finger prints to the crime, even though the prosecution has no ability to prove when the print was left and Mr. Hawkins freely admits he was in the victims’ car earlier, when they were both alive.

Given all of these issues, it is fair to ask how Mr. Hawkins was convicted in the first place.  The answer to that question lies with Mr. Hawkins’ trial lawyer, whose overconfidence and lack of preparation caused him to make a series of tactical errors which culminated in a death sentence for his client.  These missteps included failure to investigate many of the discrepancies discussed above, making Mr. Hawkins testify in his own defense, and then aggressively antagonizing the jury during the sentencing phase of the trial because of his frustration with their guilty verdict.  Shawn has been paying for these mistakes for over twenty years, and this week’s commutation must seem like rather weak compensation given the magnitude of his attorney’s negligence.  

While Shawn Hawkins no longer faces a death sentence, he still has to contend with spending the rest of his life in prison despite the severe doubts surrounding his guilt.  In some ways, his new sentence of life without the possibility of parole will make seeking his release more difficult, as the state will no longer be obligated to help finance his appeals, and the Governor may be less likely to grant a pardon after having already made what he views as a compromise.  Mr. Hawkins is not alone in facing this problem, as last year’s commutation of the sentence of Kevin Keith proves.  Like Mr. Hawkins, Mr. Keith had a strong claim of actual innocence which was met with commutation by Ohio’s then-Governor, Ted Strickland.  For the past year, Mr. Keith has been struggling to secure further advances in his case, though no relief seems to be insight for the foreseeable future.  

Fortunately for Mr. Hawkins, he seems to have a network of supporters who are dedicated to seeing that "Shawn is someday a free man”.  As his appellate attorney, Anthony G. Covatta, said after Governor Kasich’s decision, “The struggle continues. The dream will never die."  We can only hope that he is right.

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A Turning Point?

Posted by John MacGregor, Guest Blogger on June 1st, 2011

In recent weeks we have been documenting the increasing level of difficulty prisons are having procuring sodium thiopental, a drug used in lethal injection proceedings. After the last US supplier stopped production of the execution drug on moral grounds, states have had to turn to overseas providers, including pharmaceutical companies in Italy, Germany, Taiwan, the UK, and India to provide the drug. In order to import the drug, however, many states circumvented federal law by not declaring the shipments to the DEA. It seems that this crisis is reaching a critical point. A previous blog post detailed the DEA’s seizure of Georgia’s stockpile of sodium thiopental after the state had illegally imported the drug from an overseas supplier. Recently, however, the DEA has widened the scope of its probe into these shipments, and has now seized state stockpiles from Alabama, Kentucky, Tennessee, and South Carolina. Arizona, Arkansas, California, Nebraska, and South Dakota have also received shipments of sodium thiopental from overseas providers, but their stockpiles were not raided.

The revelation that these states illegally obtained their sodium thiopental has sparked outrage in death penalty watchdog groups. Natasha Minsker, the Death Penalty Policy Director for the ACLU of California, commented on the implications of this news: “The DEA records demonstrate that Arizona and other states broke the law. We cannot understand why the DEA has failed to act but has allowed the states to keep these illegal and dangerous drugs. When state officials break the law in order to carry out an execution, it makes a mockery of our justice system and puts us all at risk. State and federal officials must follow and enforce the law—that’s their duty and what the public expects and deserves.” Ms. Minsker filed a Freedom of Information Act request with the DEA and received the documents that suggested inconsistencies between the publicly known shipment records and the actual supplies of the drugs.

From here, it’s hard to tell where this story might lead. In response to the shortage of sodium thiopental, one state adopted a new lethal injection protocol, where inmates are executed with a single drug that has normally been reserved for animal euthanasia. If more states follow suit and adopt a similar procedure, there might be room for a legal challenge to this method of execution, potentially resulting in increased delays while the Courts study whether or not the single drug method violates the 8th Amendment’s prohibition against cruel and unusual punishment. If this is the case, such a review might cause another de facto moratorium similar to the one currently in effect in California. 

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Juries Lead Pennsylvania Away From Capital Punishment

Posted by James Brockway, Guest Blogger on June 1st, 2011

With citizens across the country taking active efforts to end capital punishment, progress is being made in Pennsylvania, though it has not come via the typical legislative jockeying and heated policy debate.  Instead, the state’s jurors are quietly working to make Pennsylvania, which still has the death penalty on its books, abolitionist in practice, as they have become increasingly unwilling to hand out death sentences in capital murder cases.

As noted in a recent editorial in the Philadelphia Inquirer, juries have handed down death sentences in only 3% of roughly 2,000 eligible cases since 2007, resulting in only eight additions to death row in that time.  While its population of 215 gives Pennsylvania the fourth largest death row in the country, most of that number have been awaiting execution for decades, as only three people have been executed since capital punishment’s reinstatement in 1978, and no sentences have been carried out since 1999.

While it is difficult to know how much the recent decrease in capital convictions has to do with the system’s perceived lack of credibility, it does seem to be the case that jurors are comfortable with dispensing sentences of life with out parole.  Given how rarely used and slow-moving Pennsylvania’s death penalty is, it is hard to argue with this decision, as life achieves the same goals as capital punishment while sparing the enormous investment of resources that goes into what is often a decade’s long appeals process.   

While juries are producing change from behind the scenes, the public debate over Pennsylvania’s death penalty has begun to pick up as well.  State Senator Stewart Greenleaf has sponsored a proposal to begin a study commission that will look into the costs associated with the policy.  This is a significant first step as information on Pennsylvania’s death penalty is fairly difficult to obtain, and forcing officials to come out in the open will shine a light on the system which should only galvanize further reforms.  Senator Greenleaf also plans to sponsor legislation that would eliminate the 60 day time limit placed on finding new, non-DNA evidence, for post-conviction appeals, thereby allowing for prisoners with claims of actual innocence to have a fair chance to prove their claims in court, instead of having them dismissed on banal technicalities.

Amongst the more prominent supporters of these efforts is former Governor, and long time death penalty proponent, Ed Rendell, who on his last day in office challenged the legislature to either take concrete steps to make the death penalty an effective law enforcement tool, or abandon it all together.  According to Governor Rendell, the interminable delays associated with the penalty eviscerate its deterrent effects, and it is unclear if such problems are even fixable.

Taken together, these developments should give us hope that Pennsylvania is beginning to look seriously at replacing the death penalty with more effective alternatives.  Moreover, its juries’ increased preference for life without parole points to a promising trend of reduced capital sentencing which should make it that much easier to end the death penalty once in for all, while in the mean time preventing further bloating of already over-crowded death rows across the country.

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Juries' Lack of Mental Health Knowledge Puts the Intellectually Disabled at Risk

Posted by Zac Stone on May 27th, 2011

The results of a study published last year in the Law & Psychology Review (pdf) on juror perceptions of intellectual disability should surprise no one, yet the study's implications in capital trials are grave. Mental health workers' views on intellectual disability - referred to in the study as mental retardation, a term that is losing popularity, but still medically accurate and ingrained in law - and those views of jurors differ greatly, with those in the mental health field allowing a broader definition of disability based on eight areas of functioning.

The study found that jurors, presumably a group of folks representative of the American populace (in this case they came from a suburban area in a southeastern state), vastly underestimate the functional abilities of people with intellectual disabilities, when asked to identify characteristics that might suggest mental retardation, as compared to the estimations of mental health professionals.

Though the Supreme Court's decision in Atkins v. Virginia prohibits the execution of a mentally retarded person, the court did not define mental retardation, implying that states' death penalty statutes should conform to the diagnostic criteria put forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. In practice, unfortunately, while experts in the mental health field testify and offer their opinions in court, it is not a trained professional who ultimately measures a defendant's mental abilities, but a group of strangers from the defendant's community, whom the study authors refer to as "fact-finders."

The study's authors expected jurors to somewhat accurately measure three areas of functioning - independent living, school performance, and the ability to read and write - as they relate to intellectual disability. These are three signs that most laymen identify as being indicative of intellectual disability, but as the study found, jurors don't have a great idea of how capable the intellectually disabled are of living on their own in society, they tend to rely too heavily on school performance and reading and writing ability, and they misunderstand the significance of other factors.

Jurors are also reluctant to attribute characteristics to mental retardation or intellectual disability unless they "suggest extremely severe impairment," fitting the paradigm that many Americans have built around intellectual disability in which they imagine a person wholly dependant on others to survive. For instance, jurors were willing to connect a person's history of living in state hospitals with mental retardation, but largely they did not believe that a person with an intellectual disability could live in an apartment alone with only occasional visits from a social worker, while mental health workers, with more experience around the intellectually disabled, were quick to make the connection. Jurors also saw drug use and sexual activity as indicators that a person was intellectually capable, while mental health workers allowed for more nuance in these areas, and pointed to a person's romantic involvement in relationships as a better indicator of intellectual ability.

One of the study's key findings was that jurors strongly expect the intellectually disabled to be unaware of or unable to understand the wrongfulness of their actions, and jurors were more willing to attribute criminal behavior to a defendant's disability in such cases than if the defendant expressed an understanding of the crime. Those in the mental health field know, however, that those with milder cases of intellectual disability, who tend to make up the majority of intellectually disabled capital defendants, often can understand some implications of their crime, while not fully respecting the gravity.

In death penalty trials, in which juries ultimately decide if a defendant is mentally capable of being punished by death, the repercussions of this study, assuming the results are reproducible and applicable to juries elsewhere, are not to be underestimated.

Jurors who believe the intellectually disabled must be relegated to group homes or state hospitals, or that they cannot be sexually active, consume drugs, or attend public school, will not be able to effectively enforce the law of the land, in this case the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. While it is expected that experts in any given field will have a better understanding of that field, as mental health workers better understand intellectual disability, the average American's level of ignorance on this topic makes clear that attorneys in capital cases must better prepare jurors to make the type of decision they have been tasked with - one of life or death.

Danish Drug-Maker's Death Penalty Dilemma

Posted by James Brockway, Guest Blogger on May 17th, 2011

Danish pharmaceutical company Lundbeck Inc. is currently faced with a significant ethical, and financial, dilemma, as it is the only manufacturer of pentobarbital which sells the drug to the U.S. where it has recently been used as an execution drug. While the company officially opposes this use for the short-acting barbiturate, it maintains that it has little control over what happens to the product after it is in the hands of American wholesalers, who have demonstrated a willingness to ignore the company's wishes and sell the drug to a number of states' Departments of Corrections.

Lundbeck has attempted to take some action, calling on prisons in eleven states to not use the drug as such behavior would fly in the face of the company's mission to provide the world with life saving technologies. Sadly, these efforts have so far fallen on deaf ears, as none of these prisons have responded to Lunbeck's letters, and Virginia has recently decided to join Ohio, Oklahoma, and Texas (amongst others) in using the drug in its execution procedure.

Lundbeck finds itself in this precarious position largely because of a recent shortage of sodium thiopental, the anesthetic that had, until recently, been an ingredient in 35 of the 36 death penalty states' lethal injection cocktails. Hospira Inc., the only manufacturer of thiopental, began to run out of the drug in the summer of 2010, and recently stopped producing it altogether after Italy (where Hospira's plant is located) threatened legal action if the medication continued to be used to put people to death. Italy, like Denmark and all other EU member-states, has abolished capital punishment, and has decided to be active in opposing the punishment world wide.

While it is unclear if Denmark will take similar measures to ensure Lundbeck gets out of the execution business, some of the company's major investors are beginning to take matters into their own hands. Major Danish investment fund Unipension unloaded 5.4 million Euros worth of shares last Friday, citing the company's unwillingness to "engage in a genuine dialogue" about how they planned to prevent pentobarbital from being used in executions. ATP, Denmark's largest pension investor, is considering following suit, as it also has serious questions about the strength of Lundbeck's commitment.

London based non-profit, Reprieve, has been actively pressuring Lundbeck to act, and so far has been very disappointed with the company's efforts, most recently pointing to the corporation's failure to file brief's opposing the drug's usage in an impending Alabama execution. As Reprieve investigator Maya Foa put it, "It is hard to see why Lundbeck would not take this straightforward opportunity which could help to save a life…There is still time for Lundbeck to change their mind and take this simple step. If they continue to refuse, their company 'code of ethics' will not be worth the paper it's printed on."

While it is understandable that Lundbeck is reluctant to give up on its corner on the U.S. pentobarbital market, it is imperative that the company live up to its obligation as a maker of medicine, and does everything in its reach to ensure that its products are used only to heal. Until it does so, we should applaud the efforts of investors to hold Lundbeck accountable, as it may be the case that the company will be unwilling to make changes until its moral commitments are in alignment with its financial best interest.

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Is the Death Penalty a Deterrent?

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

Does capital punishment work? This question has been the topic of a hot debate for years. At the core of this discussion are quantitative analysts from academia. Using complex econometric methods, these mathematicians publish studies analyzing murder and execution rates over time, and then estimate how many innocent lives are saved from the deterrent effect of each execution.

In 2007, for example, Michael Summers and Roy Adler published a story in the Wall Street Journal claiming that the deterrent effect of each execution eventually saves 74 innocent people from being murdered. The study noticed a negative correlation between murders and executions - when the number of executions increased, the number of murders decreased.

These findings heavily support the theory of deterrence. Yet a recent study has called the article's conclusion into question. Dr. Gebhard Kirchgaessne from the Swiss Institute for International Economics and Applied Economic Research is working on a research paper demonstrating how easy it can be for economists to manipulate murder and execution data in order to support any agenda: "One can find any result demanded; this simple model does not allow for robust results" (8).

To prove this point, Dr. Kirchgaessne derives somewhat comical results from the economists' equations. The results are so unreliable that the same model can be used to support both points of view. Further suggesting that manipulation of data runs rampant in deterrence economics is the fact that even when long-run data suggest a certain trend (ie that the death penalty is a deterrent), there are still sub-periods within that sample that contradict the claim.

The author suggests that this fact should bring heightened scrutiny to any paper trying to empirically prove or disprove a deterrent effect of the death penalty: "Everybody who wants to claim that this negative correlation represents a causal relation has to provide a convincing explanation for the existence of sub-periods showing the opposite (causal) relation" (7).

Dr. Kirchgaessne concludes that "a critical and cautious examination of these results leads to the conviction that we cannot draw any strong conclusions. While there is some evidence that a deterrent effect might exist, it is too fragile to be certain" (18). He adds that the various claims that each execution prevents X number of future homicides are so dubious - given the unreliability of the testing mechanism - that they should not be given any serious weight in policy discussions.

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Take A Stand Against the Death Penalty

Posted by Zac Stone on May 10th, 2011

The National Library of France has introduced an interactive exhibit that allows library-goers to literally stand in the way of an execution. The video speaks for itself, so without futher ado…

Abolition from Marcel on Vimeo.

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Rising use of Mitigation Defense Linked to Fewer Death Sentences in Texas

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

Jeffrey Toobin recently published an article in the New Yorker about the increasing movement in Texas to emphasize mitigating factors during the sentencing phase of death penalty trials. Specifically, Toobin follows the work of the Gulf Region Advocacy Center, an organization specializing in researching biographical mitigating evidence for defense teams in capital cases. When the death penalty was reinstated in the 1970s, the Supreme Court stipulated that mandatory death sentences were unconstitutional, and insisted that a bifurcated trial take place, where first the guilt or innocence of the defendant is ascertained, and then the sentence is determined.

The jury has essentially unlimited discretion to weigh virtually any mitigating factors during the sentencing phase – past criminal history, mental illness, low IQ, combat experience, abusive upbringing, poverty, etc. Thus, a strong mitigation defense can literally make a life or death difference for the defendant. In his article, Toobin notes that the number of new death sentences in Texas has been down considerably after GRACE began its campaign. Assuming that these two events have at least some causal relationship, the effect that this newfound emphasis on mitigation has had on the number of death sentences in Texas raises some serious questions about the general fairness of the death penalty.

When it declared a moratorium on the death penalty in the 1970s, the Supreme Court was primarily concerned that the death penalty was arbitrarily and capriciously imposed. Many of the changes made to the death penalty over the years have been designed to fix this problem. Yet even with all these changes, highly arbitrary factors – such as geography, the disposition of the District Attorney, and the gamble that a small sample size of 12 citizens will actually be a representative cross-section of society – still reign supreme when it comes to death sentences. Toobin points out in his article, for instance, that if Harris County, Texas, were an independent state, it would trail only the rest of Texas in the number of death sentences handed down in the country. Similarly, in California, 85% of all death sentences come from a mere 17% of the state’s counties.

This arbitrariness also extends to the realm of mitigation defense. Consider, for instance, the case of Manuel Babbitt. In 1980, Babbitt killed an elderly Sacramento, California, resident in her home. Soon thereafter Babbitt’s brother turned him into police after finding him in possession of some of the victim’s property. Babbitt was a Vietnam War combat veteran who fought in the 77-day siege of Khe Sahn, oftentimes referred to as the most savage battle in the war. Babbitt had only a 7th grade education and had to get help from a recruiter to pass the entrance test into the Army. During Khe Sahn, Babbitt was wounded in the skull by pieces of shrapnel, an injury for which he was later awarded the Purple Heart.

After serving a second combat tour in Vietnam, Babbitt returned home and began a long spree of escalating criminal activity that eventually led to his detention at the Bridgewater State Hospital in Massachusetts – a hospital for the criminally insane, where Babbitt was declared mentally ill. During his stay at the hospital, Babbitt attempted suicide three times. After his release, he degenerated further until his eventual murder conviction in 1980 and execution in 1999. Babbitt did not have access to a mitigation specialist similar to GRACE. Instead, Babbitt had an alcoholic public defender who would drink in court. Had Babbitt’s defense team discussed his history of post traumatic stress disorder and mental illness, perhaps the jury would have been inclined spare him death.

While the increasing use of the mitigation defense had resulted in fewer death sentences, it still leaves some unsettling questions about the arbitrariness of capital punishment in the United States. If it is assumed that at least some condemned inmates – Manuel Babbitt, for instance – would have been spared death had they been provided with a robust mitigation defense, then we can add one more variable to the legal lottery that decides who lives and who dies. When geography and the personal views of the local district attorney are life and death factors for defendants, and if taking 30 minutes to discuss one’s biography is enough to save oneself from death, as is strongly suggested by the correlation discussed in Toobin’s article, then capital punishment is still being arbitrarily and capriciously imposed in the Unites States.

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Help End Connecticut's Death Penalty!

Posted by James Brockway, Guest Blogger on May 5th, 2011

As active death penalty opponents are likely to be aware, it is becoming increasingly likely that Connecticut will become the seventeenth state to abolish the death penalty. Repeal legislation has made its way through the state's joint Judiciary Committee, and state senators will soon have an opportunity to vote on this historic legislation. While the vote is likely to be close, commentators believe the bill will pass, and Governor Dan Malloy has said he will sign the legislation if and when it reaches his desk.

As exciting as this news is, this will not be the first time that Connecticut has gotten close to abolition, as a 2009 repeal bill passed both houses only to be vetoed by then Governor M. Jodi Rell. Once again, it appears as though the death penalty will no go away without a fight, as proponents (most notably Dr. William Petit, Jr. whose family was killed in a grizzly 2007 home invasion) have been campaigning aggressively against the bill.

Interestingly, some of the legislation's most vocal supporters have, like Dr. Petit, lost family members to violent crime. In an open letter to Connecticut's legislature, a coalition of 76 co-victims urges for end to capital punishment, arguing that "rather than preventing violence, [the death penalty] only perpetuates it and inflicts further pain on survivors." Citing the incredibly lengthy and emotionally devastating appeals process, as well as the policy's tendency to unfairly elevate, as more heinous, some murders over others, the letter's drafters have put together an articulate plea and heartbreaking call to put an end to this cycle of killing.

While it is fortunately only a very small number of us who can truly understand these co-victims perspective, it falls on all of us to support them in ensuring that this historic legislation passes. Please take a moment to take action and play, however small, a role in ending this broken system before it claims any more lives.

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Actual death penalty abolition would be a lot cheaper than de facto moratorium

Posted by John MacGregor, Guest Blogger on May 4th, 2011

After Governor Brown called off the construction of a new $356 million death row facility earlier this week, the Warden of San Quentin suggested that, at the earliest, it might be another year before the state beings executing inmates again. There have been no executions in California since 2006, when Judge Jeremy Fogel declared the moratorium. Fogel felt there was enough merit to concerns that the state’s lethal injection procedures might cause inmates unnecessary pain, and would thus be in violation of the 8th Amendment’s prohibition against cruel and unusual punishment. Since that time the state has changed its procedure to better comport with Fogel’s demands. The Warden, however, wants time to train a new team of 20 executioners – a task that will likely take over a year. This move will extend the state’s de facto moratorium into its sixth year.

The move will also raise some questions about California’s fiscal priorities. For at least six years, California’s taxpayers will have been footing the bill for a death row that doesn’t execute anyone. It would be far cheaper for the state to simply make things official and become a death penalty free state. Since 1978, only 13 inmates on California’s death row have been executed, compared with the 78 deaths from other causes. Taking the program’s budget over the past 33 years into account, some simple arithmetic shows that California taxpayers have spent approximately $250m on each execution. When state universities are doubling tuition, teachers are being laid off, and police departments being downsized to the point where they can only respond to certain 911 calls, does it really make sense to drop this much money on a system that might, without hyperbole, actually be the most inefficient government-run program in the country?

48 Hours Mystery Details Wrongful Death Sentence of Anthony Graves

Posted by John MacGregor, Guest Blogger on May 2nd, 2011

48 Hours Mystery recently aired a new video detailing the story of Anthony Graves, a Texas man who was sentenced to death for a crime he did not commit. After his wrongful conviction, Graves spent 18 years of his life awaiting execution on death row. The video highlights two regular problems in death penalty cases – innocence and prosecutorial misconduct.

After a family of six was murdered in 1992, investigators refused to believe that the admitted murderer, Robert Carter, acted alone. Investigators pressed Carter to divulge the name of his supposed accomplice, and he eventually implicated Anthony Graves. Before testifying against Graves in court, Carter privately recanted his story, so the prosecution decided to cut a deal: If Carter testified, the prosecution would not ask about his wife’s involvement. Carter acquiesced.

Furthermore, when Graves’s girlfriend was about to testify that Graves had spent the entire night of the murder at home with her, the prosecutor made a veiled threat that if she did testify, she too might be implicated in the murder. At the last minute she decided not to testify. “They put him in jail […] on nothing,” she said, “what's to stop them from putting me in jail on nothing?”

The prosecution, of course, failed to divulge any of this information to the defense. Graves was found guilty and was sentenced to death.

While he was awaiting execution on death row, Robert Carter repeatedly told fellow prisoners that Anthony Graves played no part in the murder. Furthermore, moments before being executed in 2000, Carter said as his final statement, “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court."

Despite this information, Graves hopelessly remained on death row until a group of journalism students at St. Thomas University began investigating the case: "We weren't out to prove anyone innocent. That was not our goal. Our goal was just to find out the truth.” Over time, these students began to reveal the prosecution’s unorthodox methods, and soon the case against Graves crumbled. Due in large part to these revelations, Graves’s case was eventually reversed by an appellate court.

After he was freed from death row, however, Graves had to spend the next four years in jail awaiting his retrial. The new prosecutor, with a 19-0 record in her previous death penalty cases, eventually met with Graves’s defense team and told them that she had no evidence that Graves was even remotely involved in the murder, and that she was dropping the charges: “This guy's innocent - not just not guilty, but innocent."

Texas stole 18 prime years of a man’s life and destroyed his family’s reputation. "I wanted people to know that my mother didn't raise a murderer. My mother raised a good son. That meant something to me." Texas also came tantalizingly close to executing an innocent man. At the very least this case demonstrates that with our current system, mistakes still happen – our system is clearly flawed, and when the stakes are so high that lives hang in the balance, a flawed system is unacceptable.

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Governor Brown Puts Kibosh on New Death Row

Posted by Zac Stone, Guest Blogger on May 2nd, 2011

Those involved in the movement to abolish the death penalty in California might have heard that the state could save a billion dollars over the next five years by halting the archaic practice. Last Thursday, Governor Jerry Brown took a step toward making that a reality by cancelling plans to build a shiny new death row at San Quentin State Prison that would have housed an absurd 1,152 inmates, as opposed to the current 700+, and stood to cost the state hundreds of millions of dollars.

In a statement about his decision, Gov. Brown said, "At a time when children, the disabled and seniors face painful cuts to essential programs, the state of California cannot justify a massive expenditure of public dollars for the worst criminals."

"California will have to find another way to address the housing needs of condemned inmates. It would be unconscionable to earmark $356 million for a new and improved death row while making severe cuts to education and programs that serve the most vulnerable among us."

While condemned inmates deserve not to live in squalor, improvements can be made to the existing death row infrastructure without splurging in an economic downturn on facilities aimed ultimately at taking life. Money spent on education and law enforcement will go further toward lowering crime and keeping more people out of the cycle of violence that surrounds death row inmates and their families.

The state had budgeted $356 million for the new death row facilities at San Quentin, of which $20 million has already been spent since 2003 on designing and planning. State auditors released projections in 2008 that put the cost closer to $1.6 billion over 20 years. Realistically, cost projections on big construction projects are almost always lower than their ultimate expense to taxpayers.

Still, construction does not make up the bulk of the expenses related to the death penalty, even really expensive construction projects. The ACLU has estimated (pdf) that each year, keeping death-sentenced inmates separate from the general prison population costs California an extra $90,000 per inmate, more than $60 million annually. Another roughly $60 million is spent each year on capital prosecution and defense.

Many of these costs cannot be reduced without running the risk of imprisoning or executing an innocent person. All of these costs could be reduced to a pittance in comparison if the death penalty were replaced with life without parole, and in fact, new polling data (pdf) by David Binder Research shows Californians are strongly in support of just that - 63 percent of Californians are in favor of the governor converting all death sentences to life without the chance of parole, with a mere 28 percent opposed to the idea. Such a move would free up funds for public education and law enforcement without releasing a single inmate, and it even has the benefit of being supported by solid majorities of Republicans, Democrats, and particularly independent voters.

Having taken this important initial step of nixing the new death row, Gov. Brown must continue to save the state's precious resources by commuting the sentences of California's more than 700 death row inmates to life without parole. With Californians and others ever more willing to survive without the outdated punishment, it's a no-brainer that will save money and human lives.

Posted in Blog, Cost | no comments

Marie Deans, Ardent Abolitionist, Leaves Giant Shoes to Fill

Posted by Zac Stone on April 29th, 2011
Deans with Giarratano after a hard-fought battle for clemency

Marie Deans, a death penalty abolition activist and founder of Murder Victims' Families for Reconciliation (a founding partner of California Crime Victims for Alternatives to the Death Penalty), died on April 15, 2011, at the age of 70. Following the murder of her mother-in-law by an escaped prisoner in the early '70s, Deans worked tirelessly for the rights of death row inmates, and formed close bonds with the men she helped and their families. Deans had a particularly close relationship with Joe Giarratano, whose death sentence was commuted to a life sentence in 1991 due in large part to Deans' hard work on his behalf.

Giarratano was convicted after a 1979 capital trial in Norfolk, Virginia, that lasted all of four hours. He was sentenced to death for the double murder of Toni and Michelle Kline, despite overwhelming evidence of his innocence, including erroneous confessions, police coercion, and strong physical evidence implicating another as yet unidentified suspect. After a hard-fought campaign by Deans, then-Governor Douglas Wilder commuted Giarratano's sentence a mere 36 hours before he was to be executed (it may be noted that Virginia is not a death penalty retentionist state that maintains long delays between sentencing and execution). Politics would keep Giarratano in prison to this day, but Marie Deans would keep him active; Joe was a major player in the 1990s campaign for clemency of his fellow inmate Earl Washington Jr., who was granted clemency and ultimately received a pardon after DNA tests proved his innocence.

DPF President Mike Farrell joined Joe Giarratano's campaign for clemency at the behest of Marie Deans in the 1980s, when she was in charge of the Virginia Coalition on Jails and Prisons. Mike has previously heaped praise upon Deans, writing:

"An ardent abolitionist, Marie is an angel of mercy to the men on Virginia's death row. She offered counseling, advice, a willing ear and any kind of help she could bring to ease their plight. I knew her as a determined advocate who would not rest until the condemned had fully realized every benefit that was guaranteed them by law or by God, whether those in authority liked it or not. And many did not."

"Working with Joe and the rest of the men on death row was beyond a calling for Marie, it was a way to deal with what she saw as a terrible social wrong. Seeing the value in those whom the state had dehumanized, in cases like Giarratano's digging it out of a reluctant heap of self-hatred, was as natural to her as breathing, as much a part of being a member of society as was treating one's neighbor with respect. And despite the contempt many in the system felt for the inmates, Marie's simple decency and fundamental honesty won her many admirers, even a few converts."

An indefatigable advocate for the civil rights of society's most vulnerable, Deans will be remembered among death penalty abolitionists not only for her hard work, but her humanity, her compassion. Joe Giarratano still sits in a Viriginia prison for a crime he did not commit, and he just lost his most fervent supporter and a close friend. The abolition movement has lost a strong voice. The work of Marie Deans must continue for the sake of the innocent and for all Americans vulnerable to the justice system, but it won't happen on its own.

For more information about Joe, please visit the website of his campaign for clemency; letters of support and condolence can be sent to Joseph Giarratano, #1027820, Wallens Ridge State Prison, PO Box 759, Big Stone Gap, VA, 24219. Death Penalty Focus is accepting donations in Marie's memory.

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Dear Jerry Brown, Please Cut the Death Penalty

Posted by Margo Schulter, Guest Blogger on April 28th, 2011

Dear Governor Brown,

In the opening months of his first term, President Dwight D. Eisenhower gave a speech to the American Society of Newspaper Editors, where he argued that:

"Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who are not fed, those who are cold and are not clothed." (April 16, 1953)

While President Eisenhower was speaking to the problem of excessive national and global defense spending, his words are still relevant today as California faces the challenge of balancing public safety against the need to provide all of its citizens with essential services. The "theft" we face today, however, does not occur at the barrel of a gun, but instead can be found in the fiscal and moral disaster of a futile, extravagantly expensive, and socially divisive quagmire which is our broken death penalty system.

Today, a strong, smart, and effective law enforcement and criminal justice system is more incumbent than ever. Such a system must not only provide our police and corrections officers with the support they deserve and require, but must also integrate itself with our social service and mental health systems in order to "connect the dots," thereby preventing, as well as solving and punishing, violent crimes.

When such preventative measures tragically fail, society has an obligation to crime victims and their families. We must do everything in our power to ensure that families are not trapped in an unresponsive legal system, and are instead provided a helping hand on the long road to healing.

Sadly, building such a system is close to impossible as long as we are committed to capital punishment.

Each year, according to a 2008 study by the California Commission for the Fair Administration of Justice, our State spends at least $137 million on the death penalty. By replacing this punishment with permanent imprisonment, and scrapping the $400 million dollar plans for a "new and improved" Death Row, we could save $1 billion over the next five years. In doing so, we would have also replaced an arbitrarily applied and incredibly inefficient punishment with a swift, certain, and uniform penalty for our most heinous murders.

Californians as diverse as self-styled "hanging judge" Donald A. McCartin of the Superior Court of Orange County, former District Attorney Gil Garcetti of Los Angeles County, and former Warden Jeanne Woodford of San Quentin Prison have all learned from their experience in seeking, imposing, and actually carrying out death sentences that permanent imprisonment is a better and more fiscally viable choice.

And families of murder victims, like Judy Kerr and the California Crime Victims for Alternatives to the Death Penalty, are joining their voices to the mounting chorus for a more balanced and dignified system of justice, sharing their own unique experiences and wisdom obtained at an unimaginable price. We would do well to pay attention to their perspective as it is in their name that we carry out executions.

While only voters can change the law, as Governor, you hold the awesome and indeed sacred power of clemency, which you can use to not only stop the "theft" of resources from Californian families who desperately need them, but also to exercise the craft of leadership by bringing us together in the common pursuit of justice for victims of crime and for society at large.

As your decades of public service have undoubtedly taught you, the death penalty has served as a wedge issue in California politics, dividing voters and communities, and distracting us from more constructive and cost-effective alternatives.

Fortunately, more and more Californians -- indeed a powerful majority, to judge by one recent scientific survey -- are asking for swift, severe, and thrifty alternatives to a system where over 700 men and women are confined for decades on Death Row, when they could be serving sentences of permanent imprisonment at far less cost to society, and indeed be making restitution for their crimes.

While this 2009 survey showed that 66% of Californians polled were in favor of "the death penalty" in the abstract, when offered the option of life imprisonment without parole plus restitution to the families of the victims, only 26% continued to support capital punishment.

Since California's 1977 and 1978 capital murder statutes were enacted, the law has provided a mandatory penalty of permanent imprisonment for any death eligible crime. It is noteworthy that while only 13 prisoners have been executed under these statutes, more than 700 are now on Death Row. Over 3000 prisoners have been sentenced to life without the possibility of parole. Of these thousands of prisoners, only a handful have been released - and this was only after they were shown to be actually innocent of the crimes for which they were incarcerated!

The fact that such cases are rare reflects the skill and determination of our peace officers, prosecutors, jurors and judges, who are committed to convicting the guilty while taking care always to protect and acquit the innocent. The fact that mistakes do happen, however, is a sobering reminder that we are only human, and that permanent imprisonment, unlike execution, allows room for us to repair miscarriages of justice when they are discovered.

As your father, Governor Pat Brown, discussed in his memoir Public Justice, Private Mercy: A Governor's Education on Death Row, there was sometimes an agonizing ethical conflict between doing what he felt was just in deciding the issue of life or death for a condemned prisoner, and doing what he felt was necessary to preserve his ability to effectively serve the people of California.

Today, however, it seems as though these two imperatives are more in line than in conflict. In the California of 2011, governing effectively means taking control of the budget, and husbanding resources to serve those "who are not fed" or "are not clothed." To do this, we must address the imperatives of excellence in education and preeminence in technological innovation.

At the same time, we need a system of law enforcement and justice which can protect our citizens and communities, and bring prompt and responsive justice for victims of crime and their families.

To meet these goals, the draining of our time and money into the bottomless sinkhole of a broken and unfixable death penalty system simply must be stopped, and these resources need to be redirected to proven and effective law enforcement efforts and victims' services which can stem the tide of criminal violence while bringing us all together in the quest for a more just, secure, and prosperous society.

At this hour of crisis, Californians need to find common ground. The policy of permanent imprisonment provides it: it means swift punishment for criminals who will die in prison, and timely resolution of criminal cases so that the families of murder victims can move on without having their wounds reopened by decades of appeals addressing the unique issues and enormities raised by capital punishment.

Polling suggests that permanent imprisonment plus restitution can command strong majority support, uniting supporters and opponents of the death penalty. When invited to consider the alternatives, citizens and voters want to be both tough and smart on crime.

And in today's budget crisis, we can afford nothing less.

While only the voters of California can complete the process of legal reform and streamlining through an initiative, you are in a position, with one telling stroke of your pen, to move over 700 prisoners from an exorbitantly expensive residence on Death Row to more thrifty accommodations where they will meet the same fate that they were likely to receive on the row, a natural death in prison.

And thus, without releasing a single prisoner, you may at once save Californians a billion dollars over the next five years, and lead us forward in the agenda of human dignity and social progress for which you and your family have stood over these many long decades of devoted and courageous public service.

Posted in Blog, Cost | no comments

Doctor Death

Posted by Sheila Michell, Guest Blogger from the UK on April 27th, 2011

George Denkowski, a psychologist in Texas whose practice of declaring most anyone intellectually competent to face execution earned him the nickname "Dr. Death," will no longer be able to conduct intellectual disability evaluations after reaching a settlement with the psychology licensing board and attorneys representing 14 men he evaluated for the prosecution.

Democracy Now! and journalist Renee Feltz have covered the case and in the video below have shown the hard work done by activists and journos to reveal publically the flaws of the death penalty and how difficult it is to attain justice for those accused of terrible crimes. They have demonstrated quite clearly just how easy it is to jump to conclusions when one is an "expert"; an example of Denkowski's expertise, given in a short interview by Dr. Jerome Brown, would be laughable if it were not such a travesty of psychological expertise.

The most shocking part of the case is that Denkowski received no more than a reprimand and a fine of $5,500, under the condition that he no longer take on criminal cases, which will inevitably put the lives of 14 men in limbo while courts decide if the settlement is enough to take them off of death row. Denkowski did not have to admit that he had done anything wrong and the licensing board, the Texas State Board of Examiners of Psychologists, did not find any wrongdoing.

Surely a person found guilty of a terrible crime does not lose his human status and right to fair and valid testing procedures? Dr. Denkowski has tested and found mentally able 16 men on death row in Texas. Two of these men have been executed, having possibly suffered cruel and unusual punishment, according to the Atkins v. Virginia ruling of the Supreme Court in 2002, because they would have been unable to understand the concept of consequences for their actions. Kathryn Kase, the second interviewee in the video, underlined this lack of humanity toward defendants when she explained that defense lawyers are often instructed to find "cheaper" rather than quality experts for their clients, illustrating the justice system's underlying bias against appellants.

It is our hope that aside from no longer practicing intellectual disability evaluations in death penalty trials, Texas courts will see the damning evidence against Denkowski's procedures - which have resulted in a number of intellectually disabled inmates being sentenced to death and are unequivocally panned by the psychology community - and agree with State Senator Rodney Ellis of Houston who says that every case involving Denkowski should be reviewed.

Said Ellis, who serves as the chairman of the Innocence Project board of directors, "We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men."

Texas, which executes more inmates than any other state, faces a host of problems with its justice system. Arson investigations and convictions, lethal injection drugs, and mental health evaluations are just three of the system's glitches that have recently been publicized. If death were not so final, the issues would not be so crucial.

Posted in Blog, Sentencing | no comments

Forensic Science Commission Issues New Guidelines, Waits to Assign Responsibility

Posted by James Brockway, Guest Blogger on April 26th, 2011

The Texas Forensic Science Commission (TFSC) issued sixteen recommendations on Friday, April 15th, which will provide guidance for investigators, attorneys, and lawmakers charged with looking into potential arsons.  The recommendations, which include calls for more education and training for arson investigators, as well as a new system for reviewing closed cases as science evolves, represent good faith efforts to improve Texas’ forensic science in the face of serious questions about the methods used to convict Cameron Todd Willingham, a Corsicana man who was executed in 2004 for allegedly starting a fire which took the lives of his three children.

Mr. Willingham, an unemployed mechanic, consistently maintained his innocence throughout the course of his incarceration, and multiple posthumous investigations have revealed that there was no conclusive evidence that the fire was set intentionally.  The nine-member commission has been tasked with sorting out exactly what happened in the Willingham case and its reports are designed to provide a framework which aligns Texas’ procedures with the most modern scientific techniques.

Unfortunately, the TFSC has faced resistance as it searches for the truth, much of it coming from the Governor’s office.  Governor Rick Perry seems to have a vested interest in suppressing debate over the circumstances of Mr. Willingham’s conviction as it was he who ignored scientific studies which suggested that there was “nothing to suggest to any reasonable arson investigator that this was an arson fire” when he denied Mr. Willingham’s clemency request in 2004.  Governor Perry has played politics with the Commission, changing its composition right before it was scheduled to review a report which took serious issue with the trial testimony used to convict Mr. Willingham.  The new Commissioner cancelled this meeting, introducing another year of delay before a July 2010 panel issued analysis which condemned the prosecution’s “flawed science.”

This sort of political gamesmanship is not completely absent from the Commission’s current proceedings, as last week’s report does not, and will not, include any official assessments of investigator misconduct until it receives word from the state’s attorney general who will decide if such sanctions are within the Commission’s jurisdiction.  According to Sam Bassett, the Commissioner deposed by Perry in 2009, such judgments are already within TFSC’s purview, and the current maneuvering indicates that “politics rather than science will influence the decision.”

In spite of these concerns, the report represents an important tool for preventing miscarriages of justice like those experienced by Mr. Willingham from happening again.  As long as Texas continues to execute people at an alarmingly fast rate, there will be a premium on devising safeguards which will prevent further wrongful convictions, and in this respect, the new regulations are truly life savers.

Posted in Blog, Innocence | 1 comments

Taiwan and the Asian Death Penalty Debate

Posted by Sheila Michell, Guest Blogger from the UK on April 26th, 2011

In a recent Wall Street Journal blog article, Paul Mozur does some interesting and important reporting on recent developments in Taiwan regarding a wrongful execution which could have significant ramifications for the debate about the death penalty in Asia generally.  His piece referred to an original report in the Dui Hua Journal which covered a case concerning the wrongful execution of a soldier accused of murdering a child in 1996.  Taiwanese President Ma Ying-jeou issued a public apology for this miscarriage of justice, though his pronouncement was rendered somewhat hollow by following it up with the execution of five convicts.   The wrongful execution gained a great deal of media coverage, and incited criticism from the EU and international human rights groups.  This outrage is important and justified, and I share Mr. Mozur and the Dui Hua Journal editors’ belief that this case will be influential in changing Asian countries’ positions on the death penalty.  To see why, it helps to look at signs of movement on the death penalty at a government level over the last fifteen months or so in the key countries of South Korea, Japan and China as well as Taiwan.   

As Dui Hua reports, South Korea is mercifully "abolitionist in practice", with no executions since 1997 (although there have been rumblings of rebuilding the death chamber).  Fortunately, the nation currently has only 61 death row inmates despite the 110 different crimes for which convicts are death eligible.  While the majority of Koreans still favor the death penalty, their level of support decreases dramatically when asked to compare it against life without the possibility of parole.  The South Korean government also seems to be turning against capital punishment, as a 2010 high court ruling upheld the death sentence by a slim 5-4 vote, down from a 7-2 affirmation of the policy’s constitutionality in 1996.

The situation in Japan has certain similarities to the drama unfolding in Taiwan, as both countries, despite large public support for the death penalty have recently had Justice Ministers who strongly opposed the punishment.  Taiwanese Minister of Justice Wang Ching-feng was such an outspoken critic that she was forced to resign her post in March 2010 after she said she would rather "go to hell" than authorize an execution.  Unfortunately, Ms. Wang’s courageous statement has engendered a backlash which has resulted in the execution of 10 prisoners in the last 12 months, leaving 40 on the Row. In spite of these recent executions, anti-death penalty momentum still exists within the Taiwanese government where politicians have begun to call for replacing the death sentence with a “special life sentence” (without the possibility of parole).  

In Japan, where there are 107 prisoners on death row, Ms. Keiko Chiba was the Justice Minister.  She played her cards differently from Ms. Wang when she authorized the execution of two inmates last May.  She then set up a committee to investigate the death penalty and also insisted that the death chamber should be opened to the press before she was voted out of office.  The present Justice Minister, Satsuki Eda is himself an opponent of capital punishment and has endorsed the study on the death penalty, though he is undecided as to whether or not he would sign any death warrants.

Even China, which executes more people than any other country, has started to recognize the possibility of error in capital cases and has begun instituting reforms.  The Supreme People’s Court (SPC) has recently issued specific rules stating that illegally obtained evidence cannot be used in death penalty trials and that death sentences should only be rendered if sufficient evidence has been legally obtained.  As Zhao Bingzhi, head of the criminal law research committee under the China Law Society, puts it, these new rules will “…be conducive to reducing the number of executions and handling death penalty cases in a just and objective manner."    

Meanwhile, the Standing Committee of the National People's Congress (NPC) has banned the death penalty for all but the worst offenders who over the age of seventy five.  The NPC has also further limited the death penalty’s scope by eliminating its imposition as punishment for thirteen nonviolent crimes which include tax avoidance and the smuggling of cultural relics and precious metals out of the country.  These moves, while undoubtedly steps in the right direction, are at least partially motivated by a desire to shield China’s human rights policies from excessive scrutiny as shown by the fact these crimes have rarely incurred the maximum punishment, and there are still 55 offenses, including corruption, which are punishable by death.  In fact, further evidence of China’s reticence to do away with the death penalty can be seen in recent statements by  Li Buyun, a member of China’s top prosecutorial body, that the country needs at least 30 years to abolish capital punishment.

While not all the developments in these debates on capital punishment are wholly positive, that these public discussions are happening at all should provide great comfort to those who hope to see an end to the death penalty in Asia.  The more we publicize and comment on the flaws and problems of the death penalty, the sooner the whole world will realize that life imprisonment is an acceptable alternative .  This, in turn, ensures that no one will have to take the ultimate responsibility of ending the life of a convicted man or woman, while at the same time providing a chance to release the wrongfully convicted if and when such errors happen.

States Engage in Lethal Injection Drug Trade

Posted by Zac Stone on April 22nd, 2011

States around the country that retain the death penalty have for months been struggling to procure the most commonly used anesthetic in lethal injections, sodium thiopental. Following a shortage in raw materials by the sole U.S. manufacturer and the company's subsequent departure from the thiopental market, corrections officials in a number of states have scrambled to find an appropriate replacement for the drug, with many states turning to pentobarbital and still others engaging in a bona fide barbiturate black market among various state corrections departments.

Ohio, Oklahoma, and Texas have already adopted pentobarbital and used it, either in the place of thiopental in a three-drug lethal injection protocol, or in one large dose, as the drug has long been used to euthanize animals. In humans, pentobarbital is most often used to induce coma, generally in brain-damaged patients, and occasionally to stop seizures when other drugs are ineffective. Thus far it has been easier for states to acquire pentobarbital than thiopental, as it is still produced in the U.S., specifically at a plant in Kansas. The plant is owned by Denmark's Lundbeck A/S, however, which has gotten Denmark's foreign minister Lene Espersen involved.

Espersen said she has "no possibility to take direct action at American states' use of the product for executions," as it is not exported from within the country, but she has promised to contact those states using pentobarbital from Lundbeck's plant in Kansas through the Danish embassy in Washington, to urge them against using the company's products in lethal injections. Realistically, and regrettably, the chances of that making a difference are slim.

Among those states that have not switched to pentobarbital, many have created what the New York Times recently described as a "legally questionable swap club" around the existing American thiopental stocks. At least four states - Arkansas, Georgia, Arizona, and California - purchased thiopental from a sketchy British pharmaceutical supplier before the country banned its export for use in lethal injections. Now the states that beat the new British law have been supplying those whose stores are depleted. Wendy Kelley, a deputy director of Arkansas's corrections department, acknowledged in a deposition that her state had provided free thiopental to Mississippi, Oklahoma, and Tennessee, saying, "As best as I'm aware, the agreement my director had with other directors, any time there was an exchange, was that there would be a payback when needed."

The Obama Administration has reacted to the situation in somewhat contradictory ways; the Drug Enforcement Agency raided Georgia's thiopental, which was imported from the U.K. without DEA oversight, while the Justice Department on Wednesday urged a federal judge to dismiss a lawsuit that challenges states' abilities to purchase lethal injection drugs from overseas without FDA approval. The justice department's motion suggests that it is within the FDA's discretion to allow lethal injection drugs into the country without first inspecting them.

Surely that does not tell the whole story, though, as the DEA also appropriated Kentucky's and Tennessee's thiopental stocks earlier this month. California's thiopental reserves, also imported from the U.K., were lab tested after they arrived and were certified sufficiently potent, but unrelated lawsuits have kept inmates from being executed in California for the past five years, and will likely continue to do so for some time, though the state continues to spend millions prosecuting capital cases and sentencing inmates to death. Arizona used its thiopental in two recent executions in which both inmates kept their eyes open long after they should with an effective sedative, indicating they were not properly anesthetized before cardiac arrest was induced. Still, the state has scheduled the execution of Donald Edward Beaty for May 25th without making a single change to the lethal injection protocol, all but ensuring that yet another inmate will suffer extreme pain at the hands of the state, and corrections officials will again unwittingly be made into torturers. Changes must be made to avoid this lamentable outcome, and every legal channel ought to remain open to ensure states do not circumvent federal drug laws in a misguided rush to kill inmates.

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