The Death Penalty Blog : Displaying 71-90 of 340

Help End Connecticut's Death Penalty!

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

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

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

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

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

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

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

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

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

48 Hours Mystery Details Wrongful Death Sentence of Anthony Graves

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

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

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

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

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

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

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

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

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

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Governor Brown Puts Kibosh on New Death Row

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

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

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

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

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

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

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

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

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

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Marie Deans, Ardent Abolitionist, Leaves Giant Shoes to Fill

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

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

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

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

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

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

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

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

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Dear Jerry Brown, Please Cut the Death Penalty

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

Dear Governor Brown,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Doctor Death

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

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

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

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

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

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

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

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

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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.

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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:

"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.

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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.

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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

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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 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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