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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.




Will Botswana be the next country to abolish the death penalty?

Posted by Sheila Michell, Guest Blogger from the UK on April 21st, 2011

Botswana is a progressive and successful African country, the world's third largest producer of diamonds and the setting of the popular novels and television series " The No 1 Ladies' Detective Agency" and its leading character, the redoubtable Mma Precious Remotswe. But unfortunately, like many US states, it still has the death penalty. However if the country's primary political opposition leader has his way, the country may soon become one of the three countries each year that get rid of the death penalty.

Duma Boko is both the leader of the Botswana National Front Party, the opposition party to the current government, and a prominent death penalty defense attorney. His client, Brandon Sampson, faces execution in July 2011. It should come as no surprise that Boko is also an outspoken supporter of abolishing the death penalty. In a recent interview with IPS ('It Cheapens Human Life', Inter Press Service, April 13, 2011 ) Boko explained his reasons for opposing the death penalty, fundamental reasons which have significance to every country which still employs capital punishment.

His first reason is the most basic: the irrevocability of the death sentence.

Secondly, Boko tackled the myth that the death penalty provides closure for the victims, "I don't think it makes them feel better. No one has done that study here to establish that it does." (I would like to direct Mr. Boko to the recent study by two sociologists from Kentucky which confirms his point by showing that executions fail to bring closure for victims' families: http://wcr.sonoma.edu/v12n1/Mowen.pdf.)

"What I think it does is that it cheapens human life," Mr Boko continued. And went on to make his third point: "The society that celebrates death by the state is an immature society. If we think our people are that immature, we need either to educate them or to establish if indeed they are.

"Because you may find that they are far from being that immature. It is the state that is immature in this regard and the legal system that forces judges and the state to be that immature." I think Mr Boko is advocating that the state should take the moral high ground in this issue and not just satisfy popular demand for the death penalty, which is found in many countries worldwide irrespective of whether or not they have capital punishment.

Finally, Duma Boko pointed out another common failure of the death penalty: under-resourced defense lawyers. He explained that the state prosecution had "all the facilities", whereas the defense depended largely on the commitment of individual lawyers who did not enjoy the same facilities as the prosecution. "There is no equality of arms, if you will, when the attorney representing the accused person does not have the same resources as the state. That is basically violating the constitution and that violation must itself vitiate the imposition of the death penalty on an individual. So it is a real challenge."

Needless to say, if Duma Boko were to become President of Botswana, he is committed to seeking a moratorium on executions or outright repeal of the death penalty: "…when I am at the helm of that government, I will not sign anybody's death warrant whether the law says so or not."

I hope that Duma Boko's appeal on behalf of Brandon Sampson is successful, but even more than that; I hope he is able to lead Botswana's efforts to end the death penalty in the near future.

And perhaps the question of capital punishment could be considered by Mma Precious Remotswe in some future volume of that famous detective agency?





CT Murder Victim Family Members Tell Legislators: Not in our Name!

Posted by Aarti Kelapure on April 20th, 2011

Originally published on the Daily Kos on April 19, 2011.

By Tanya Greene, Advocacy and Policy Counsel, ACLU Center for Justice

When I was a child, my cousin was brutally murdered.  As far as our family knows,  the police never found his killer.

A few years later, another cousin of mine was murdered in prison. His killers were in cahoots with his jailers, so none of them was ever prosecuted.

No one received the death penalty for these murders, and as a beloved family member of murder victims, I would never have supported pursuing capital punishment in either case.

As legislators in Connecticut grapple with a bill that would abolish the death penalty in the state, murder victims' families are speaking loudly about their opposition to Connecticut's capital punishment system. There is a tension. On one hand, victims' family members need finality and an end to reliving their loved one's horrible death in the media and the courts. But that kind of finality is not immediate, because the Constitution requires due process, effective counsel, and protection against wrongful conviction for those sentenced to death. The years of legal appeals before an execution extend and exacerbate murder victims' families' suffering.

During a public hearing last month on the pending death penalty abolition bill, the  stories of numerous victims' family members had a common theme: in order for the needs of murder victims' family members to be served, the death penalty must be replaced with permanent imprisonment, a more cost-effective alternative that would free up limited state resources for additional services for victims.

Gail Canzano, whose brother-in-law was murdered, explains: "(H)omicide grief is not assuaged by retribution; it is, in fact, worsened. . . The death penalty is a cruel hoax. It accomplishes nothing. It wastes millions of dollars and it further victimizes families who are already broken with grief."

Law enforcement, religious leaders and many others have come together in the state to support eliminating the broken capital punishment system. It is too costly, targets people of color for greater punishment, and mistakes are made. The current bill would replace the death penalty with life in prison with no possibility of release; it would not affect pending cases or previous sentences.

To show your support for abolition of the death penalty in Connecticut, click here.

When a loved one is murdered, the whole world as you know it comes crashing down, never to be the same again. But more killing won't bring the loved one back. It will, however, bring more pain for yet another family.

And I am a firm believer that the murder remains on the conscience of the killer forever — and that is a heavy burden they will never escape.

Posted in Blog, CCV/Victims | no comments



Deficit spending: A Federal Death Penalty Extravaganza

Posted by Margo Schulter on April 19th, 2011

As Standard and Poor’s threatens to downgrade the credit rating of the United States of America, and the debate on the deficit and income tax rates continues, the Department of Justice continues a mode of truly extravagant spending: the federal death penalty.

This spending is especially gratuitous when the federal government disregards a community's own values and policies by seeking the death penalty in jurisdictions like the State of New York which do not themselves practice judicial homicide.

As reported by the New York Times and the Death Penalty Information Center, the federal government may end up spending $10 million on the capital murder trial of Vincent Basciano, a convicted murderer and racketeer who is presently serving a life sentence without the possibility of parole for the 2008 killing of fellow mobster Frank Santoro.  Bonnano crime family boss Joseph C. Massino broke the mafia’s code of silence and has testified that Basciano ordered the 2004 murder of Bonnano associate Randolph Pizzolo.  It is important to note that Mr. Massino is currently serving time for eight different murders, and has offered his testimony in attempt to reduce his sentence.

When the Government decided to seek the death penalty, Federal District Judge Nicholas G. Garaufis wisely urged Attorney General Eric Holder to reconsider this decision, noting that "Basciano is already sentenced to life imprisonment. He is designated to serve his sentence under extremely restrictive conditions in one of the nation's most secure
penal institutions." That institution, ADX Florence in Colorado, is a federal "supermax" prison which employs state of the art security measures designed to accommodate the most dangerous federal offenders, including mobsters and terrorists.

Instead of taking the hint from Judge Garaufis, however, the Attorney General responded by confirming the Government's decision to seek the death penalty, thus leading to a most telling headline in the New York Daily News: "Attorney General Eric Holder wants former Bonnano crime boss Vincent (Vinny Gorgeous) Basciano dead."

Mr. Holder’s eagerness to pursue the death penalty is deeply disappointing as it brings the entire U.S. justice system down to the homicidal level of the criminals we prosecute. Additionally, the decision to seek death despite New York’s seven year ban on the practice runs the risk of making an already extremely costly process even more expensive as going through the process of selecting a jury willing to apply the death sentence is more challenging in jurisdictions which no longer practice capital punishment.  All this energy is likely to amount to no change from Basciano’s current condition, as most federal capital trials where the defendant is convicted actually end with a penalty of life imprisonment, an outcome that seems especially likely given that New Yorkers have already rejected the death penalty.

Regardless of the outcome in the Pizzolo case, Vincent Basciano will spend the rest of his life behind bars.  Knowing this, it is hard to understand how the Attorney General’s office could justify the enormous fiscal and moral costs of a capital trial.  Our current economic difficulties make it imperative that we continue to advocate for abolition, the kindest budget cut of all.  It is time for us to abandon the pursuit of purely symbolic “victories” and turn our limited resources towards measures that will actually prevent violent crimes.

Posted in Blog | no comments



What do Hilary Swank and Illinois Gov. Pat Quinn have in common?

Posted by Sara Bolder on April 19th, 2011
Hilary Swank
Hilary Swank

What do Illinois Governor Pat Quinn, Hilary Swank and The Sisters of St. Joseph of Orange have in common? They are all receiving awards on May 12th from Death Penalty Focus. Join us at the Beverly Hilton for a fun and inspiring evening. Other honorees are Stephen Bright, President of The Southern Center for Human Rights, Lance Lindsey, recently retired Executive Director of Death Penalty Focus, and the Death Penalty Clinic at UC Berkeley Law School, led by Elisabeth Semel and Ty Alper. More info and ticket purchase here: DPF Awards Dinner

Posted in Blog | no comments



DNA Evidence Offers Longtime Death Row Inmate a Chance at Justice

Posted by Zac Stone on April 19th, 2011
William "Tommy" Zeigler last year, photo by Jacob Langston of the Orlando Sentinel

Last week Tommy Zeigler won an important battle for further DNA testing in his death penalty appeal. Zeigler was convicted of murdering his wife, in-laws, and a customer at his furniture store in Winter Garden, Florida on Christmas Eve 1975. Having sat on Florida's death row for decades, a judge has now ordered new tests to be performed on blood from the crime scene that Zeigler claims will exonerate him.

Zeigler was arrested and tried on the theory that he killed his wife to collect half a million dollars in life insurance, and that he shot himself to cover up his crime and frame it as an invasion. Zeigler has never wavered in his account of what happened, and passed polygraph tests asserting that he and his family were victims of a robbery that may have been motivated by Zeigler's involvement in uncovering a loan-sharking ring victimizing migrant workers.

Numerous injustices occurred over the course of Zeigler's trial and subsequent incarceration, including the misplacing and knowing destruction of evidence; reports offering exculpatory evidence were turned over to the defense team with very little time to prepare, or were not disclosed at all; a number of jurors in his original trial (half of whom first voted to acquit Zeigler, but were persuaded to convict) have come out in his support, and a couple have admitted to being prescribed Valium so they would be more amenable to convict a man whose guilt was in doubt. Prosecutors used witnesses that identified Zeigler as the killer while ignoring those eyewitnesses whose stories did not mesh with the state's fictionalized account.

Christine Cooper is the daughter of Robert Thompson, the former Central Florida police chief who was the first police officer at the crime scene. Cooper said she believes "the justice system failed" Zeigler. Thompson was involved as a mercenary in the arms trade in Central America in the 1980s, and his daughter says he died in 1999 "taking a lot of secrets with him." Thompson suppressed a report after the crime that did not surface until 1987 in which he wrote that the blood on Zeigler was dry when he found him, yet in its case against him, the state claimed Zeigler had just shot himself minutes earlier.

While the suspicions of the daughter of a deceased police chief are certainly not enough to overturn a murder conviction, Cooper's doubt and that of a number of witnesses and jurors lend credence to Zeigler's claim of innocence. It is clear that the case was mishandled, and justice was not properly served. Failed by the justice system on more than one occasion, Tommy Zeigler has been afforded his best chance in decades of receiving true justice with this admission of new DNA evidence. Should his sentence ultimately be reversed, Zeigler will join the nearly two dozen former Florida inmates who have been exonerated from death row since the 1970s. Please visit our Florida Action page to add your voice to those in favor of abolishing the state's failed death penalty system.

Posted in Blog, Innocence | 3 comments



Ending the Death Penalty: A Global Perspective

Posted by on April 14th, 2011

In his recent book, Ending the Death Penalty : The European Experience in Global Perspective, Andrew Hammel compares the successful abolitionist movements in Europe to their so-far unsuccessful counterparts in the US. It has long been perplexing that countries so similar in history, culture, and wealth would differ so markedly when it comes to capital punishment. Hammel attacks this problem by analyzing the abolitionist movements in Germany, Great Britain, and France. In these countries a small group in the ruling elite abolished capital punishment even though public opinion was by and large decidedly in favor of it. Given the populist tendencies in the United States, as well as our strongly entrenched Federalist system, Hammel argues that, politically, such a top-down approach is next to impossible here.

In his review of Hammel' s book, Law Professor William Berry offers an alternative view which suggests that action from the U.S. Supreme Court might be a counter-majoritarian approach that could end the death penalty in America. Such action would most likely occur if the Court were convinced that the nation' s "standards of decency" had evolved to the point where the death penalty was considered a cruel and unusual punishment under the 8th Amendment. When it rendered the Harmelin decision in 1991, the U.S. Supreme Court agreed that any new interpretation of the " evolving standards of decency " should "be informed by objective factors to the maximum possible extent." The Supreme Court added in Penry v. Lynaugh that these "objective factors" should come from examinations of the state legislatures and jury decisions.

With the necessity for such objective evidence in mind, it is of note that during the past decade there has been a noticeable national shift toward a de facto ban on capital punishment. Since 2007, the New Jersey, New Mexico, and Illinois state legislatures have all done away with the death penalty , leaving 34 states that retain it. In New York, where the court struck down the state' s statute, the state legislature refused to reinstate it.

Furthermore, between 1998 and 2009 there has been a clear trend in the number of new death sentences per year given by juries in the United States: 294 -> 277 -> 224 -> 159 -> 166 -> 152 -> 140 -> 139 -> 123 -> 120 -> 119 -> 112, a decline of 60% over 12 years. Additionally, since 2002, the Supreme Court has in three separate decisions, banned the execution of the mentally retarded, those under the age of 18 at the time of their crime, and those who committed a crime other than murder. In these cases, the Court cited " evolving standards of decency ."

The Court has at its fingertips viable objective data from various state legislatures and evidence of decreasing death verdicts by juries, both of which demonstrate a national shift is indeed occurring. Hammel and Berry suggest that the successful top-down approach taken to end the death penalty in Europe will only occur in the US only if the Supreme Court takes action. Given the declining number of death sentences and the growing list of states without the death penalty , perhaps the time is ripe for the Supreme Court to act.




The Courts, they are a-changin'

Posted by Zac Stone, Guest Blogger on April 13th, 2011
Our 2011 Supreme Court

The Roberts Court really hit its groove in 2010, stripping cities' gun control laws and destroying longstanding campaign finance regulations (or as they would have it: extending free speech rights to corporate Americans), but we're just one quarter of the way through 2011 and we have already seen far-reaching decisions by the Roberts Court resulting in an assault on Americans' civil liberties. The Court is ignoring and defying a mounting chorus of opposition to the death penalty both nationally and globally, and setting precedents that will not just harm violent criminals, but innocent citizens and their loved ones. The Supreme Court has had its share of death penalty advocates in its history, but John Roberts and his conservative cohort on the Court - Antonin Scalia, Clarence Thomas, Samuel Alito, and from time to time Anthony Kennedy (the "swing" voter) - have proven themselves willing to put finality above justice and fairness.

In 1972, by a vote of 5-4, the U.S. Supreme Court decided in Furman v. Georgia that the nation's death penalty laws were constitutionally flawed because the statutes failed to narrow the use of the death penalty to just the worst of the worst. They extended a moratorium on new sentences until each state "fixed" its statute. Among those justices favoring the moratorium were William Douglas, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall. Those dissenting, who believed the death penalty to be constitutional as it was applied, were Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Four years later, the Court, with John Paul Stevens in place of Douglas, would vote to reinstate the death penalty 7 to 2 in its historic Gregg v. Georgia decision. Only Justices Brennan and Marshall dissented, arguing that the death penalty has no deterrent effect and that our society has evolved beyond the need to kill for retribution.

By the time the Court issued its 1987 decision in McCleskey v. Kemp, Sandra Day O'Connor and Antonin Scalia had joined them, replacing Stewart and Burger. Writing for the majority, Lewis Powell dismissed a statistical study that showed killers of whites were 11 times more likely to be sentenced to die than those whose victims were Black. Four other justices agreed with Powell, who said the study failed to "demonstrate a constitutionally significant risk of racial bias," and was insufficient to invalidate Georgia's death penalty.

Time and time again, however, the statistics would prove consistent - to this day those who kill whites are significantly more likely to face execution than those who kill African-Americans or Latinos. His decision in McClesky v. Kemp would become one of Powell's great regrets; Powell told his biographer in 1991 he would reverse his McClesky decision if afforded the opportunity, saying he had "come to think that capital punishment should be abolished."

Harry Blackmun and John Paul Stevens both dissented in McClesky, but qualified their statements, distancing themselves from Justices Marshall and Brennan, who since Furman had openly stated that they believed the death penalty to be cruel and unusual punishment in any circumstance and that it could not be made fair. Blackmun would wait another six years before finally declaring the death penalty system "fraught with arbitrariness, discrimination, caprice and mistake" (Callins v. Collins, 1993).

"The problem," Justice Blackmun said, "is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution."

John Paul Stevens' position on capital punishment evolved over his three decades on the court, but he too eventually concluded in 2008 that capital punishment is both "pointless and needless." He offered further insight in a New York Times essay published in late 2010, in which he wrote, "While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs…are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant's guilt." Consider also the impact on corrections officials and medical personnel put in the position of executing a person whose guilt is uncertain.

"Many [inmates] have repented and made positive contributions to society," Stevens wrote. "The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death."

The Roberts Court would do well to heed the wisdom of three of its predecessors, appointed by Republicans, informed by years on the bench, who all reversed course on the death penalty after or near the end of their tenure on the Court. It seems clear, however, that they don't share Justice Blackmun's resistance to "tinker with the machinery of death."

Just last month, the Court reversed a jury verdict and lower court ruling that had awarded a wrongfully-convicted man, John Thompson, a $14 million dollar settlement for the 14 years he spent on Louisiana's death row. Prosecutors supervised by Orleans Parish district attorney, Harry Connick, Sr. had covered up exculpatory evidence that demonstrated Thompson's innocence. Though Thompson was able to prove that multiple prosecutors withheld evidence that would have exonerated him, the Court found with Clarence Thomas, writing for the majority that, "a district attorney cannot be held liable for the actions of his subordinates." Justice Thomas claims one must prove a pattern of similar violations exists in order to justify holding the city's government liable for the misconduct; one Brady violation in Thompson's case, albeit egregious and involving numerous prosecutors, just doesn't cut it.

The Court has issued a dangerous precedent in Thompson's case. As Ruth Bader Ginsburg stated in her dissent, "The prosecutorial concealment Thompson encountered…is bound to be repeated unless municipal agencies bear responsibility." By saying the buck stops nowhere, the Court has effectively eliminated a defendant's ability to hold prosecutors accountable for willfully violating his civil liberties, giving prosecutors everywhere incentive to use similar underhanded tactics to achieve future guilty verdicts and death sentences.

Last week the Court's majority took the bizarre step of actually reinstating a death sentence in the case of Scott Lynn Pinholster, who suffered brain damage as a child that resulted in his intellectual disability, despite rulings by a federal judge and a federal appeals court that found Pinholster's attorneys had failed him by offering no mitigating evidence during his sentencing trial. You don't have to be a legal scholar to see the how knowingly ignoring evidence - exculpatory, mitigating, or otherwise, can lead to an injustice.

In light of its recent rulings, it is evident that a majority of the justices currently on the Court are willing to dismiss the opinions of those that came before them and a growing majority of the global community. The Court's majority has shown an indifference to human life and a willingness to erode civil liberties with no discernable benefits to our society.

If Justices Blackmun, Powell, and Stevens were able to travel back in time and reconsider Gregg v. Georgia, they would likely join Justices Brennan and Marshall in striking down the death penalty.

If just one of the Court's current sitting justices revised his thinking about the death penalty, we would likely see a drastic sea change on the matter.

Unfortunately, we cannot wait for reason to strike. America's 30-year experiment with the death penalty has failed. To protect human life, to save states' depleted financial resources, we must embrace ending the death penalty where we can, and limiting its use where abolition is currently politically impossible. To artificially prop up what Justice Blackmun described so long ago as a failed experiment is nonsensical. Upending the status quo has never been easy, but the Roberts Court and all of us ought to strongly consider the viable, life-affirming alternatives to America's overworked courts and bloated death row prisons.


"Closure" and Capital Punishment

Posted by James Brockway, Guest Blogger on April 12th, 2011

In their study, “Not In My Name: An Investigation of Victim’s Family Clemency Movements and Court Appointed Closure,” recently published in The Western Criminology Review, University of Louisville sociologists Thomas J. Mowen and Dr. Ryan D. Schroeder shine a spotlight on one of the more misunderstood elements of the death penalty, namely the effect that death sentences have on covictims, the surviving family of the murdered.  While victim’s family members are often trotted out as the main beneficiaries of capital punishment, Mowen and Schroeder’s research draws attention to the growing victim’s clemency movement and helps to explain how the recent emphasis on closure as a justification for the death penalty has in fact produced greater covictim opposition.  Their work also draws attention to the role media coverage plays in both representing and shaping public opinion on the death penalty, highlighting the way that newspapers have a tendency to overstate victim support for the system.

Mowen and Schroeder begin their analysis with a survey of the criminological research done on the justifications prevalently appealed to by death penalty supporters.  They note that the public generally accepts that there is little, if any, deterrent or fiscal benefit to capital punishment.  In spite of this, public support remains relatively strong (though drops dramatically in polls which compare death sentences to life without the possibility of parole).  The reason for this is that there has been a shift in justification from utilitarian policy concerns to an emphasis on moral arguments that focus on the importance of retribution and victim closure—i.e. the belief that executions are essential to providing family members with some emotional relief that allows them to ‘move past’ their suffering.  As recent research by Scott Vollum and Jacqueline Buffington-Vollum has shown, these types of value-expressive justifications are less vulnerable to change in the face of evidence which demonstrates the short-comings of capital punishment than arguments that focus on the policy’s effectiveness because such justifications are tied to the individual’s conception of their identity.

As the authors are very quick to point out, there are some very serious problems with these closure based arguments for maintaining capital punishment.  First, there is a serious contradiction between the “highly contextual and individualized” nature of closure as an emotional state, and the objective and rational framework of the legal system which is supposed to deliver this feeling to the aggrieved.  This problem is compounded by the fact that there is often a very real difference between the way the court and covictims conceive of closure—for family members who have lost love ones, the pain of that loss frequently lingers long after the case is “closed” and the legal mechanisms for applying justice have reached their terminus.  The idea that any legal remedy could resolve their suffering functions to marginalize the voices of covictims as they go through the grieving process, and may in fact stifle the creation of social networks that are responsive to their needs (as can be seen anecdotally in the way California’s victim’s restitution fund has been allowed to approach bankruptcy as the state continues to spend millions of dollars each year on capital punishment).  The tension between the diverse and continuous process of grieving and the one size fits all approach of the justice system has the effect of shoehorning covictims into a court approved version of closure which leaves little room for alternative ways of coping with loss.  

In addition to creating problems for victims, the closure approach to capital punishment also raises significant concerns for the fairness of our justice system.  By treating trials as therapeutic tools, the emphasis on closure reverses the presumption of the accused’s innocence which is a hallmark of our legal system, and threatens to only heighten the bias which frequently plagues capital trials.  If trials are being undertaken in order to serve the particular emotional needs of family members, we are implicitly sending the signal to jurors that their primary obligation is not to dispassionately assess guilt or innocence, but is instead to actively involve themselves in victims’ healing processes, thus staking the deck against defendants before trials even begin.

Because of these concerns, there has been a growing contingent of victims who oppose execution as a means of closure.  Mowen and Schroeder’s study documents the emergence of this covictims clemency movement as a reaction to the shift in popular justification for capital punishment, while also evaluating the way newspaper coverage of capital trials seeks to minimize acknowledging this reaction.  To do this, they analyzed 119 articles from the 1992-2009 that comprised a representative cross-section of death penalty coverage.  They found that there was a statistically significant increase in covictim resistance to capital punishment which occurred at a rate of 3.262% during the period studied.  They also discovered that courts had a tendency to cite closure as an explicit justification far more frequently then covictims (who other studies have indicated report executions bring closure in only 2.7% of relevant cases).

Despite this trend of increased opposition, newspaper coverage consistently attempts to highlight victim support for the death penalty.  In their research, Mowen and Schroeder consistently found that articles which emphasized the execution-closure connection were longer and more prominently featured in the paper than their anti-death penalty counterparts.  While they were reluctant to draw overly sweeping conclusions from their data set, Mowen and Schroeder rightly observe that their findings point to a growing disjunction between the actual will of victim’s family and the popular representation of their interests.

“Not In My Name” represents an important step towards challenging conventional wisdom regarding covictims’ stance on capital punishment, and raises important questions about the practical and moral implications of using state-killing as a tool for healing.  Mowen and Schroeder have pointed the way for a research agenda which attempts to take seriously the multitude of perspectives held by victims’ families, and their call for a transformation of “victims’ families from noncontributing outsiders...to active participants within the current capital punishment paradigm” demands attention from all of us who are committed to ensuring that no one, be they covictim, or defendant, is “victimized at the hands of ‘justice.’”

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Justice Sotomayor's Courageous Dissent

Posted by Margo Schulter, Guest Blogger on April 12th, 2011

In her courageous and compelling dissent from a 5-4 decision of the United States Supreme Court reinstating the death sentence of California prisoner Scott Pinholster, Justice Sonia Sotomayor told how a jury deliberated for two days before returning its fateful penalty verdict -- after Pinholster's two trial attorneys failed to investigate his background, overlooking evidence of his traumatic brain injuries in early childhood, seizure disorders, and severe lifelong mental illness that would have made a powerful case for life.

Justice Sotomayor, along with her colleagues Ruth Bader Ginsburg and Elena Kagan, would have affirmed a 2009 decision of the federal Ninth Circuit Court of Appeals overturning Pinholster's death sentence on the grounds that the failure of his attorneys to search for and find this "voluminous" mitigating evidence violated his Sixth Amendment right to "effective assistance of counsel" in the penalty phase of his 1984 trial.

However, a five-justice majority led by Justice Clarence Thomas reversed the Ninth Circuit and reinstated the death sentence, holding among other things that the new evidence of the "psychotic" Pinholster's traumatic brain injury, neurological abnormalities, and severe mental illness did not raise a "reasonable probability" that if his jury had heard it they might have reached a different penalty verdict, thus "undermining" confidence in the actual verdict of death. The full text of the Court's arguments can be found here.

The case also focused on technical issues relating to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, passed by Congress to restrict the scope of federal appeals by state prisoners in capital and noncapital cases. Justice Thomas, writing for the Court, made the interpretation of these restrictions yet tighter by holding that federal courts must give full weight and deference to a state court's denial of a prisoner's constitutional claim (e.g. ineffective assistance of counsel) even if the court simply rejects a claim without stating any findings of facts or explaining its legal reasoning. The Court's holding also limited the scope of federal evidentiary hearings exploring facts not fully developed in state court that might cast additional doubt on a conviction or death sentence.

Justice Thomas was joined in his opinion by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy; Justice Samuel Alito furnished the fifth vote to reinstate Pinholster's death sentence, but wrote separately to urge the need for a broader scope for federal evidentiary hearings. Reserving judgment on Pinholster's death sentence, Justice Stephen Breyer would have remanded the case for further consideration by the Ninth Circuit, leaving that court to decide whether an evidentiary hearing might be justified under the stricter reading of the AEDPA now in effect.

Cutting to the heart of the matter, however, it was Justice Sotomayor who served as the moral and legal compass of the Court by telling the horrific story of Pinholster's brain injuries, violent abuse by his stepfather and other family members, abnormal EEG at the age of nine followed by seizure disorders, and lifelong history of serious mental illness which led to a proposal to place him in the Hope Psychiatric Institute only months before he murdered Thomas Johnson and Robert Beckett in the course of a 1982 burglary at the home of a drug dealer who was a friend of the victims.

In vivid human detail, we learn how Pinholster was run over by his mother at the age of two, and then in another car accident at the age of four or five had his head thrown through the windshield of the vehicle, suffering injuries which could explain his brain abnormalities and epileptic seizures from childhood on, as well as his evident learning disorders and psychological problems ultimately leading to an escalating pattern of violent and criminal behavior.

Together with these traumatic brain injuries went a childhood in which Pinholster and his siblings, to quote a psychiatrist who actually testified for the state, Dr. John Stalberg, had been "raised like animals, wild animals." Pinholster's stepfather had routinely beaten him -- on at least one occasion with a wooden two-by-four. The history of close family members was filled with mental illness and drug abuse as well as criminal behavior. As Sotomayor details, "Pinholster's half-sister was removed from the home as a result of a beating by his stepfather...."; and his elder brother was diagnosed as "catatonic-like" and "acutely psychotic," eventually committing suicide.

Reading these facts, one must ask, how could any reasonable court sustain a death sentence handed down by a jury in ignorance of this overwhelming mitigation, much less hold that there was no "reasonable probability" that the jury might have chosen permanent imprisonment (life without parole) if informed of the tragedy of Pinholster's entire life as well as the horror of his two murders and other crimes?

As Justice Sotomayor shows, ably commanding the Court's intricate death penalty jurisprudence developed over the last four decades while never losing sight of the human realities, proper application of recent cases would require upholding the Ninth Circuit's decision to vacate the death penalty, leaving California free either to grant Pinholster a new penalty trial where the jury can hear all the mitigating evidence, or else simply to reduce the sentence to permanent imprisonment.

As shocking as the deficiencies of Pinholster's trial lawyers, one of whom was later disbarred, perhaps even more appalling was one of the explanations offered by Justice Thomas for holding that the omitted mitigating evidence would have been unlikely to change the result: the evidence of serious "substance abuse, mental illness, and criminal problems" in Pinholster's family was "by no means clearly mitigating, as the jury might have concluded that Pinholster was simply beyond rehabilitation."

Amazingly, to justify the view that a rational jury could weigh Pinholster's tragic family background -- and presumably also his own traumatic brain injuries and resulting seizure disorders as well as his lifelong mental illness -- as factors actually tipping the scales toward death, Justice Thomas cites the case of Atkins v. Virginia (2002). There the Court likewise noted that mitigating evidence of mental retardation "can be a 'two-edged sword'" which might lead a jury to find the aggravating factor of "future dangerousness."

Whether or not Justice Thomas realized or intended it, his citation of Atkins is indeed a powerful two-edged legal sword: to avoid the risk that a jury might perversely view a defendant's intellectual disability as aggravating rather than mitigating, the Atkins Court categorically excluded the death penalty for offenders with mental retardation. And in Roper v. Simmons (2005), likewise noting a Missouri prosecutor's suggestion that the youth of a defendant who killed at age 17 was "scary" rather than "mitigating," the Court eliminated the risk of such misguided and deadly logic by categorically barring the death penalty for offenders who committed their capital crimes before reaching the age of 18.

Legal advocates have already been urging that the logic of Atkins and Simmons should be extended by barring the death penalty for all defendants with serious mental illness or organic brain damage, thus avoiding miscarriages of justice such as that documented by the Ninth Circuit and Justice Sotomayor in the case of Scott Pinholster. It is ironic that Justice Thomas, by his two-edged citation of Atkins, may have provided the most cogent argument of all in favor of barring the death penalty for the intellectually disabled.

Better yet, of course, we should categorically bar the death penalty under any circumstance.


Another Foreign Drug Company Refuses to Export Lethal Injection Drug to US

Posted by John MacGregor, Guest Blogger on April 11th, 2011

Late last week yet another pharmaceutical company refused to supply the lethal injection drug sodium thiopental to prisons. After it pulled the drug from the market, Kayem Pharmaceutical, a company based in India, released a statement emphasizing its opposition to the drug's use in capital punishment: "[…] we voluntary declare that we as Indian Pharma Dealer who cherish the Ethos of Hinduism (A believer even in non-livings as the creation of God) refrain ourselves in selling this drug where the purpose is purely for Lethal Injection and its misuse" [sic].

This move creates more problems for prisons already dealing with a critically short supply of the drug. Earlier this year Hospira Inc., the last domestic supplier of sodium thiopental, ceased production to protest its role in lethal injection. Prisons then turned to overseas providers, but faced mounting legal issues with the DEA and FDA. The Texas Department of Corrections, for instance, was raided last month after it came to light that it had illegally imported its supply of sodium thiopental from Italy. The Texas DoC was not authorized to independently import a schedule III narcotic into the United States and also failed to declare the shipment to the DEA.

The Nebraska Department of Corrections has also fallen under unwanted scrutiny amid evidence that it too cut corners when it imported sodium thiopental from India. The Nebraska DoC is not authorized by the DEA to directly import drugs from foreign suppliers. One document even suggests that, in place of sodium thiopental, Nebraska instead received a shipment of thiopentone thiosol sodium– a generic version of the drug not authorized for use in executions. Furthermore, Kayem failed to gain permission from the FDA before it exported the drug to the United States.

The manufacturers’ boycott of sodium thiopental production could be a crucial step toward a de facto abolition of the death penalty in the United States. As the remaining sodium thiopental available for executions expires and is not replaced, states will need to find a suitable replacement drug that comports with the 8th Amendment’s prohibition against cruel and unusual punishment. This process could take a great deal of time. California, for instance, has had a de facto moratorium since 2006 as the Constitutionality of the state’s lethal injection protocol is reviewed. As states scramble to find a suitable replacement for sodium thiopental it is quite possible that the number of executions in the United States could, at least in the short term, drastically decline.

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Time On Death Row: A Word From Mike Farrell

Posted by Mike Farrell on April 7th, 2011

The following is from interview given by Death Penalty Focus President Mike Farrell.  Mike has been heavily involved in struggles to protect human rights at home and abroad for more than three decades, and in addition to his work with DPF serves as a member of the board of directors for the National Coalition to Abolish the Death Penalty.  In this Q&A session, Mike sheds some light on why our system of capital punishment moves as slowly as it does, what the real social costs of that system are, and what more effective alternatives might look like.

The death penalty was held unconstitutional in 1972 in what is known as the Furman decision (Furman v. Georgia).  The court held that imposition of the death penalty at that time was “cruel and unusual” and compared it to being struck by lightning.  The justices felt that it was used in an arbitrary and capricious manner and that there were implications of racism in its application.

In 1976, in Gregg v. Georgia, the death penalty was reinstated by virtue of a number of safeguards that were built into the law, the intention of which was to correct the problems found in Furman.  These safeguards included the requirement of a bifurcated trial, the first to determine guilt or innocence and the second, if guilt was determined, to decide the punishment.  In a capital case with what became known as “special circumstances,” or aggravating factors, the choice was then between life in prison with no chance of parole or death. 

Because, as the courts said, “death is different,” it required additional protections for the accused, all of which cost a great deal of money: provision of expert witnesses, requirement that two competent attorneys represent the defendant, special security, etc.  And in the case of a guilty verdict and a death sentence, the court required that a series of appeals be available to the convicted person, first through the state and then through the federal courts.

All of these special requirements add up to a huge expenditure of time and money on the part of the state and federal governments, but they are what is required to make killing a human being pass constitutional muster.

Today, the average time an individual spends on death row after being convicted ranges from approximately 12 to 20 years, depending on the state and the log-jam in the courts.  Many go much longer.

If the problem is that criminals spend too much time on death row, that is simply the way it has worked out in order for the system to meet our constitutional standards.  What the appeals process has exposed is the too-often slipshod manner by which people are sentenced to death and the hideous number of wrongful convictions that occur.  In order to speed up the process we would not only have to spend much more money, we would also run an increased risk of executing the innocent.

What those of us who oppose the death penalty in all cases believe, and I think our objections are being validated over time, is that racism remains a factor in death prosecutions; that virtually everyone given a death sentence is a poor person who couldn’t afford a proper defense; that there remains a problem with ambitious prosecutors or overworked police who aren’t as careful about the facts as fairness requires; that incompetent defense attorneys continue to feed hapless, often innocent victims into the system; that any system run by humans makes mistakes; that it is morally wrong to kill when we can keep society safe by incarcerating those who act out violently for the rest of their lives, when and if necessary; and that huge amounts of tax dollars are being wasted on a system that is truly dysfunctional.

In my view, many of those who commit murder are capable of being rehabilitated and returned to society after they have demonstrated remorse, worked to earn money that can be used to compensate victim’s family members (or a victim’s fund), and worked to improve themselves and show an ability to be a productive and law-abiding member of society.  For that reason, I believe there should be a series of graduated sentences for a capital crime and during the period of incarceration, the convicted should be given opportunities to better him or herself.  Sentences then could begin with something like a requirement of at least 25 years before being considered for parole, perhaps 40 years for others, depending on the circumstances of the crime, and that life without parole should be reserved for those so bent and broken by life’s circumstances that they cannot ever be safely released into society.

That way we would not demean ourselves by stooping to killing other human beings.  And, we would save hundreds of millions of dollars.

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Should Murderers Die?

Posted by Stephen F. Rohde, DPF Board Member on April 1st, 2011

In a civilized society, we should not kill to show that killing is wrong. Dennis Prager thinks that murderers should die and therefore places state killing on a higher moral plane than those of us who believe that state killing is itself immoral ("Murderers Should Die," March 18).

Prager claims that there is almost no issue "for which the gulf between people on opposite sides of an issue is as unbridgeable as on the issue of the death penalty for murderers." Yet he ignores the fact that many have bridged that gulf as the death penalty continues to become less and less popular with Americans. A July 2010 Field Poll revealed that, when asked which sentence they preferred for a first-degree murderer, 42 percent of registered voters said they preferred life without parole and only 41 percent said they preferred the death penalty.

Prager cites the Torah as his single moral compass. But the Torah, among many ancient religious texts, includes rules and prohibitions that few would subscribe to today. According to the Torah, in addition to murder, offenses that merit death include disobedience to a parent, contempt of court, blasphemy, sacrificing to another god, false prophecy, necromancy, premarital sex, bestiality and breaking the Sabbath.

"Many Jewish opponents of the death penalty point to Israel, which has disallowed capital punishment since its establishment," Prager argues, but he dismisses this important fact by claiming that "Israel was founded by Jews who took their values from the European Enlightenment, not from the Torah, and that is why they banned capital punishment in Israel."

Indeed, most Americans, including the [Founding Fathers] who wrote the Declaration of Independence and the Constitution, and presumably most Jews in America, also derive their values from the European Enlightenment, which over time has led to less and less support for the death penalty.

The majority of nations and Western democracies have abolished the death penalty, and the International Criminal Court has barred the use of capital punishment even for war crimes and crimes against humanity.

Prager engages in the utter speculation that "more innocents die with no capital punishment than with it." If we consider life without parole the natural alternative to the death penalty, the risk to innocent people is negligible. The risk of a murderer escaping from prison and murdering again is less than a fraction of a percent. And Prager callously ignores the fact that there is overwhelming evidence in at least nine cases since 1980 that innocent men were executed in the United States.

Elie Wiesel, covering Adolf Eichmann's trial in Jerusalem (the only instance of civil execution in Israel's history), called the execution "an example not to be followed." "Society should not be the Angel of Death," he said. "We should not be servants of death. The law should celebrate, glorify, sanctify life, always life."

As between Wiesel and the value of life and Prager and the value of death, I choose life.


The writer, a constitutional lawyer, is president of the Progressive Jewish Alliance and represented a man on California's death row.

This letter originally appeared in the
JEWISH JOURNAL, March 29, 2011, Letters to the Editor section.

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U.S. Supreme Court Rejects Petition by Troy Davis

Posted by Zac Stone on March 30th, 2011

After some uplifting news from Los Angeles in the case of Francisco Carrillo, freed from prison last week after faulty eyewitness testimony wrongfully put him there 20 years ago, there is distressing news from Georgia, where Troy Davis, who has steadfastly maintained his innocence in the 1989 murder of an off-duty police officer in Savannah, has had his final appeal denied by the U.S. Supreme Court. And though Davis has been here before - his execution has been scheduled on three occasions, each time stayed by a judge for review - barring clemency by Georgia's Governor or Board of Pardons and Paroles, Troy Davis will soon face execution.

Convicted with no physical evidence linking him to the crime, Davis was unable to convince a federal judge that seven out of nine eyewitnesses recanting their testimony suggested doubt about his guilt. Because prosecutors lacked any physical evidence, including the murder weapon, which might link Davis to the crime, they relied entirely on the eyewitness testimony of, according to original defense lawyer Robert Barker, a "cast of characters" including "jail birds, felons, [and] twice convicted felons." This served to limit Davis' options for appeal, forcing him to try and prove that the seven eyewitnesses who recanted their testimony were now credible, and that their recantations diminished the state's case against Davis. Despite evidence of police coercion and other underhanded tactics used to obtain witness identifications, and two witnesses claiming another man confessed to the crime, it was apparently not enough to sow doubt in the mind of U.S. District Judge William T. Moore, nor the 11th Circuit Court of Appeals, nor the U.S. Supreme Court, which both declined to hear Davis' challenge.

Because the Drug Enforcement Agency recently seized Georgia's supply of sodium thiopental, the anesthetic used in executions which the state acquired illegally from sources abroad, Davis' execution will likely be delayed until the DEA completes its investigation or Georgia switches to another sedative in its lethal injection protocol. Arizona, Ohio, and Texas have adopted pentobarbital.

Execution drugs aside, serious doubts still exist about Davis' guilt, and they cast a pall over his death sentence. We know the dangers of relying on eyewitness testimony, and this case rests solely on the credibility of a pair of eyewitnesses, with nary a shred of physical evidence to tie Davis to the murder. How so many learned individuals are able to convince themselves Davis is guilty without a doubt is both astounding and disheartening. We must take action to ensure that justice is fairly served and not undermined, for Troy Davis, his family, and for the victims of this crime and others.

Please help stop the execution of Troy Davis by signing this petition to Georgia Governor Nathan Deal and the State Board of Pardons and Paroles today.




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

 


Posted in Blog, Religion | 1 comments



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.

Posted in Blog | no comments



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.




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