Breyer's Powerful Death Penalty Dissent
Posted by Stephen Rohde on July 16th, 2015
This article originally appeared in the
In U.S. Supreme Court history, a few powerful dissenting opinions have eventually won over a majority of the court. In Glossip v. Gross, 2015 DJDAR 7481 (June 29, 2015), Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wrote a powerful dissenting opinion on the death penalty that presented compelling reasons why capital punishment violates the Eighth Amendment’s prohibition on “cruel and unusual punishment.” Depending on the court’s makeup after the 2016 election, Breyer’s dissent may well become the law of the land.
In 1976, the Supreme Court reinstated the death penalty under state statutes that attempted to set forth safeguards to ensure the penalty would be applied reliably and not arbitrarily. But Breyer found that the “circumstances and the evidence of the death penalty’s application have changed radically since then.” The court thought that the constitutional infirmities in the death penalty could be healed. But, according to Breyer, almost “40 years of studies, surveys, and experience strongly indicate … this effort has failed.” “Today’s administration of the death penalty,” Breyer said, “involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”
Cruel: Unreliability. Breyer found “increasing evidence” that the death penalty lacks reliability. Researchers “have found convincing evidence that, in the past three decades, innocent people have been executed.” Breyer cites the shameful examples of Carlos DeLuna, Cameron Todd Willingham, Joe Arridy and William Jackson Marion. As of 2002, there was evidence of approximately 60 exonerations in capital cases. Since then, the number of exonerations in capital cases has risen to 115 and may be as high as 154. In 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for over 30 years.
Including instances in which courts failed to follow legally required procedures, the numbers soar. Between 1973 and 1995, courts found prejudicial errors in an astounding 68 percent of the capital cases. For Breyer, the research suggests “there are too many instances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime.”
Cruel: Arbitrariness. As Breyer puts it, the “arbitrary imposition of punishment is the antithesis of the rule of law.” In 1976, the Supreme Court acknowledged that it is unconstitutional if “inflicted in an arbitrary and capricious manner.” Despite the court’s hope for fair administration of the death penalty, Breyer concludes it has become “increasingly clear that the death penalty is imposed arbitrarily, i.e., without the ‘reasonable consistency’ legally necessary to reconcile its use with the Constitution’s commands.”
Breyer cites various studies and concludes that “whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors—such as ‘egregiousness’—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.” Breyer concludes that the “imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary.”
Cruel: Excessive delays. Breyer found the problems of reliability and unfairness lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row.
In 2014, 35 individuals were executed. Those inmates spent an average of 18 years on death row. At present rates, it would take more than 75 years to carry out the death sentences of the 3,000 inmates on death row; thus, the average person on death row would spend an additional 37.5 years there before being executed.
These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” Second, lengthy delay undermines the death penalty’s penological rationale.
Breyer explained that the death penalty’s penological rationale rests almost exclusively upon deterrence and retribution. But Breyer asks: Does it still seem likely that the death penalty has a significant deterrent effect?
He considers what actually happened to the 183 inmates sentenced to death in 1978. As of 2013, 38 (or 21 percent) had been executed; but 132 (or 72 percent) had had their convictions or sentences overturned or commuted; and 7 (or 4 percent) had died of other causes. Six (or 3 percent) remained on death row. Of the 8,466 inmates under a death sentence at some point between 1973 and 2013, 16 percent were executed but 42 percent had their convictions or sentences overturned or commuted, and 6 percent died by other causes; the remainder (35 percent) are still on death row.
To speed up executions, Breyer asks which constitutional protections we should eliminate. He poses the dilemma: “A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place. But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure reliability and procedural fairness.”
Breyer is clear. “We cannot have both. And that simple fact … strongly supports the claim that the death penalty violates the Eighth Amendment.”
Unusual: Decline in Use. The Eighth Amendment forbids punishments that are cruel and unusual. Breyer points out that between 1986 and 1999, 286 persons on average were sentenced to death each year. But approximately 15 years ago, the numbers began to decline. In 1999, 98 people were executed. Last year, just 73 persons were sentenced to death and 35 were executed.
The number of death penalty states has fallen, too. In 1972, the death penalty was lawful in 41 states. As of today, 19 states and the District of Columbia have abolished the death penalty. In 11 other states where the death penalty is on the books, no execution has taken place in over eight years. Of the 20 states that have conducted at least one execution in the past eight years, 9 have conducted fewer than five in that time, making an execution in those states a fairly rare event.
That leaves 11 states in which it is fair to say that capital punishment is not “unusual.” And just three (Texas, Missouri and Florida) accounted for 80 percent of executions nationwide (28 of the 35) in 2014. Indeed, last year, only seven states conducted an execution. In other words, in 43 States, no one was executed. If we ask how many Americans live in a state that at least occasionally carries out an execution (at least one within the prior three years), the answer two decades ago was 60 to 70 percent. Today, it’s 33 percent.
Breyer concludes that the matters he has discussed, “such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction — indeed the unfair, cruel and unusual infliction — of a serious punishment upon an individual.”
Consequently, the Supreme Court is “left with a judicial responsibility” and it has made clear that “the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.”
Breyer’s authoritative dissent may have set the stage for ending state killing once and for all. And it may have its most immediate impact on Aug. 31, when the 9th U.S. Circuit Court of Appeals hears oral argument in Jones v Chappell, in which last year U.S. District Judge Cormac Carney found California’s death penalty unconstitutional for many of the very same reasons Breyer has so cogently expressed.
Stephen Rohde, an author and constitutional lawyer, is immediate past chair of the ACLU Foundation of Southern California, vice president of Death Penalty Focus, and national chair of Bend the Arc, a Jewish Partnership for Justice.
Guest Column by Robyn Barbour
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At 8:00 when the late bell rings, my class of sixteen numbers a mere nine students. I take roll on my phone, and my students write their journal responses based on a prompt on the board. The students are a mix of white, Latino and black. Almost all are freshmen because this is a freshman English class, but I expect a junior who is redoing ninth-grade English to appear shortly – and he does. He tends to be fashionably late. As soon as they have finished their journal, the girls start shouting at each other across the room. They aren’t angry; they’re animated. They talk about girl drama and boy drama. They use terms that were unfamiliar to me – left hand, right hand, backbone, BAE -- but they took the time to teach me their language and now I understand. They like that I put in the effort.
Seven minutes into class, two more girls come in carrying Starbucks. One asks me to put her Frappucino in my minifridge, which I do. I’ve already erased the journal prompt, and we’ve started working on a grammar assignment. They each get a sheet from me and they fall into the familiar pattern of going over the instructions, doing a few examples, and then working together or as a group on the rest of the sheet. This day the lesson is on apostrophes. Some of them didn’t know what the comma-looking things were called, and most of them thought they were used to make words plural.
Five minutes later, two boys come in. They also pick up the grammar from me, and sit next to the girls who usually do their work and who usually pay attention to my instructions. Halfway through the class, we’re still missing two kids, and they’re almost never there before the last ten minutes. These are not bad kids. They’re not lazy or stupid or dangerous. Their parents work or are overwhelmed by the ravages of not working – poverty, homelessness, drug use to dull the shame. These kids have to parent themselves, and I know there are mornings when I myself have a hard time not hitting snooze until it gives up.
When I first started working at this school and heard the stories my kids told or wrote about - mental health issues, undiagnosed learning disabilities, illiteracy into high school, incarcerated parents and/or siblings, abuse, foster care – it gave me a strange sense of déjà vu. This is exactly what I kept hearing when learning about death-row inmates. You see, in my spare time I am on the board of Death Penalty Focus and many of my fellow board members work with people incarcerated at San Quentin. Given the stories, many of the men and women imprisoned at San Quentin face some of the same issues as my students.
Even though I teach sixth through ninth graders, roughly ages 12 through 15, some of my kids have already entered the system. One of my girls has a probation officer because she was with a friend who started a fire in a bathroom. “Arson” is emblazoned on her juvenile record because she was caught on camera leaving the bathroom. Having already gained a reputation as being a wild child, it was easy for people to believe that she would light a fire in a trash can. She said she didn’t do it and I believed her. That surprised her. And it made her really happy.
I started teaching at this school two years ago. It isn’t easy, but I loved it from the first day. All the influences that contribute to people going down the path to prison are writ large in these lives and they make my kids challenging to teach. But experience tells me that given structure and love and patience they can be as successful as anyone at a more affluent school. I know this because for ten of my twenty-five years in the classroom, I taught at those affluent schools.
Any demographic analysis of prisons, death row in particular, will show you disproportionate numbers of people of color, people who didn’t finish high school, people with mental health issues, people who are functionally illiterate. They’ll be people who were abused, who were abandoned, who somehow slipped through the cracks and were left with few alternatives to lives of crime and violence. These are my kids, and every one of my colleagues fights like hell to divert them from the destiny their life to this point seems to funnel them toward. We see ourselves as the pipeline to college rather than prison, to better lives rather than continuing the cycle their parents have become trapped in. Every member of the staff at this school has many jobs beyond the one he or she is paid to do, because we don’t give up on our kids as they expect us to do, as so many have done.
So my kids show up late. That they show up is what counts. So they sometimes opt not to come to English at eight in the morning. They show up eventually, and they ask for make-up work. Sometimes they come in at lunch, sometimes after school. And they do these things not because they believe in themselves – yet – but because they begin to get the idea that someone cares about them and wants them to have a shot at a life.
Education is expensive, but more money for counselors, for training, for diversion programs and for “mental health” days might obviate the need for as many prison cells. Every one of the kids I work with could end up in “the system,” but once they see there are other possibilities out there, they get that it’s not inevitable.
As for those who have already been through that pipeline, those for whom no one intervened, those who will live behind bars until the state puts an end to the hope they once represented, we can only ask why something wasn’t done to provide other options.
But the future is not set for my kids.
Posted by on July 10th, 2015
We are greatly saddened to learn of the passing of Myron Dale “Doc” Miller on June 6th in Davis, California. Mr. Miller was a staunch opponent of the death penalty, and generously supported our work over many years.
Doc pursued a life of service, volunteering for the Army Air Corps as a recent high school graduate in the middle of World War II. He became a pilot, rising to the rank of Colonel, and flew for 30 years in war and peace time. During the Vietnam engagement, he commanded a rescue squadron with four airplanes and 12 pararescue men who parachuted into the sea and combat zones on rescue missions. He also flew around the world several times, piloting jet transports and stopping at airports that served US Embassies in India, Pakistan, Saudia Arabia, Spain and other countries.
After retiring from the Air Force, Doc completed his undergraduate and law degrees at UC Davis and began a 20 year legal career devoted to representing indigents in criminal appeals. His many contributions to improving the world around him will be long remembered. Doc was loved and admired by his many friends, colleagues and family, and by those of who were encouraged and inspired by his generosity.
We send our deepest sympathy to Doc’s daughter, Vicky Sargent and grandsons Austin Sargent and Alden Sargent, and to his longtime companion and best friend, Sarah Taylor.
A memorial service for Doc will be held on Saturday, July 18, 2015, at 10 a.m. at the Unitarian Universalist Church of Davis, 27074 Patwin Road, Davis. In lieu of flowers, Doc’s family asks that donations be made to Death Penalty Focus, c/o Mike Farrell, 5 Third St., Suite 725, San Francisco, CA 94103.
Posted by on July 2nd, 2015
We are greatly saddened to learn that Pamela Krasney, a former DPF board member and long-time activist against the death penalty, passed away on June 9th at her home in Sausalito.
Pam was a lifelong opponent of the death penalty and made many valuable contributions to DPF and the anti death penalty movement. She was particularly dedicated to San Quentin Death Row inmate Jarvis Masters, whom she visited regularly over the past eighteen years.
As a Tibetan Buddhist and member of the Shambhala Community, she embraced many causes and tirelessly pursued projects to improve the world around her, especially for those unfairly treated by the criminal justice system. Pam was active in Human Rights Watch and served on the board of the Prison Mindfulness Institute. We are forever grateful for her dedication.
We send our deepest sympathies to Pam’s husband, Marty Krasney, and to her children and grandchildren.
Abolitionist of the Month Ernie Chambers
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Ernie Chambers does not give up.
Nearly 45 years ago, right after he won a seat in the Nebraska State Senate, he first introduced a bill to repeal the death penalty. He didn’t hesitate to take on the formidable task of abolishing an almost 150-year-old law in a conservative state in the heart of the country.
“I have an obligation. I have a charge to keep. I don’t get tired. I won’t sell out. I won’t be bought out,” Chambers said during a recent phone interview.
For the next 40 years, Chambers introduced a similar bill to repeal Nebraska's capital punishment law at the start of each legislative session, a total of 38 times. In 1979, the bill was passed by the Legislature but was vetoed by then-Governor Charles Thone. Undeterred, Chambers introduced it at the next session, and the next, and the next....
Ask Chambers what propelled him to try, again and again, to repeal the death penalty and he explains it was a determination forged by a lifelong belief that killing another human being, no matter what the circumstances, is just plain wrong.
“Since I was first conscious of the difference between right and wrong, I have been opposed to the death penalty. My argument is simple: Nobody should kill anybody. And killing someone as punishment is the most barbaric act of all,” he says.
Chambers, who was born in 1937, has been fighting injustice his entire life. An Omaha native, he was often the only black child in a white classroom. He tells of having to listen to his white teacher read Little Black Sambo,a children’s book with descriptions and illustrations of African-Americans so derogatory, it was banned from libraries and schools in the 1970s. He sat in silence while the white kids laughed. It was an experience, he says, that “bothers me to this day.”
Chambers earned his undergraduate degree at Creighton University in Omaha in 1959, and a law degree from Creighton University School of Law in 1979, but because he refuses to join the Nebraska State Bar Association, he has never practiced law.
“I refused to join the Bar because I paid my way through law school,” he says. “Why should I have to pay the Nebraska State Bar Association dues for the right to practice law when I already earned that right by graduating from law school?”
He was fired from the Omaha Post Office in the early 1960s for insubordination after complaining that managers referred to black employees as “boys.” When the Postmaster General gave a speech in Omaha, Chambers picketed it with a sign that read, “I spoke against discrimination in the Omaha Post Office and was fired.”
He became a public figure in 1966 after race riots broke out in Omaha. Acting as a spokesperson for the community, Chambers helped defuse the tension, and subsequently led a citizens’ group that worked to improve relations between residents of North Omaha and the police.
He was working as a barber in the 1960s when he first ran for public office, once for the Omaha School Board and once for the City Council. He lost both times.
In 1970, he was elected to represent North Omaha's 11th District, and was reelected for the next 34 years, becoming in 2005, Nebraska’s longest-serving state senator. Term limits passed by Nebraska voters in 2000 meant he couldn’t run again for four years, which he did in 2012, winning by a landslide.
Chambers has also unsuccessfully run for the U.S. Senate and for governor of Nebraska.
Asked if he still has aspirations for higher office, Chambers is definite. “No, no, no. I’m where I belong.”
And where he belongs is in Nebraska, fighting for the causes he believes in.
“I’ve always felt an obligation to protect those on the outside, the ones who are weak or frightened,” he says. And it was that sense of obligation that fueled his successful drive to halt the execution of juveniles and the intellectually disabled in Nebraska in 1982, ahead of the U.S. Supreme Court's nationwide ban.
“Every time I saw an opening, I took it,” he says.
In late May, Chambers finally prevailed. First, by a vote of 32 to 15, the unicameral Nebraska Legislature voted to repeal the death penalty, replacing it with the option of a life sentence without parole. Republican Governor Pete Ricketts vetoed the bill, and less than a week later, the legislature overrode his veto by a vote of 30 to 19, the minimum number needed. With that vote, Nebraska became the first conservative state in more than 40 years to abolish the death penalty. The 10 men on Nebraska’s Death Row were granted a reprieve, and will serve life sentences without parole.
But the battle may not be over. In the wake of the override, Republican Senator Beau McCoy of Omaha announced he would organize an effort to get an initiative on the state ballot next year giving Nebraska voters the option of reinstating the death penalty.
Ernie Chambers is ready.
“I don’t feel the battle is won,” he says. “None of that worries me. I’ve always had the expectation that the battle will go on.”
Supreme Court Ruling Sets Clock Ticking
Posted by Leslie Fulbright on June 29th, 2015
The Supreme Court ruled today in a 5-4 decision that the drug midazolam is constitutional for use as the first drug in a three-drug lethal injection formula. The decision is troubling after a botched execution in Oklahoma clearly showed the experimental drug creates an intolerable risk of harm.
In addition, it is dreadful news for California, the state with the nation’s largest death row. Earlier this month in a settlement agreement with death penalty advocates, Governor Jerry Brown agreed to unveil a one-drug protocol within 120 days of the decision, meaning killing in California could resume within months.
In California, the death penalty has been on hold since 2006 when a federal judge found the three-drug protocol was unconstitutional. When a new protocol is introduced, there are bound to be legal challenges and additional costs to California taxpayers in addition to the millions we already spend on appeals and housing.
When the process is approved, a minimum of 17 people who have exhausted their appeals will immediately be eligible for execution. Instead of wasting more time and money to try to come up with a new way to kill prisoners, we need to end the death penalty system.
Texas Man Freed from Death Row
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Alfred Brown, who was sentenced to die in 2005, was released Monday after more than a dozen years behind bars. The Court of Criminal Appeals threw out his conviction and death sentence in November after ruling that his defense team was not given evidence that could have supported his alibi at trial.
Yesterday, District Attorney Devon Anderson said she was dismissing the case, because she didn't have enough evidence to convict him at a new trial.
"We re-interviewed all the witnesses. We looked at all the evidence and we're coming up short," Anderson said. "We cannot prove this case beyond a reasonable doubt, therefore the law demands that I dismiss this case and release Mr. Brown."
After he walked out of prison a free man, Brown compared life behind bars to being in a dog kennel. Hardest to bear, he said, was being away from his family, including his now 14-year-old daughter.
He becomes the 154th person freed from Death Row.
Conservative Nebraska Abolishes Death Penalty
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Legislators on Wednesday voted 30-19 to repeal the death penalty in Nebraska, making it the first Republican-led state to abolish capital punishment in more than 40 years.
In California, Ron Briggs, a conservative Republican who, with his father John Briggs, led the 1978 initiative that reintroduced the death penalty in the Golden State, is now active in the campaign to end it.
“The death penalty is the ultimate failed big government program,” said Briggs, a former El Dorado County Supervisor. “Nowhere is that more true than in California, which has the largest and most dysfunctional death penalty system in America. It’s time that conservatives who don’t trust the government to run their lives stop trusting the government to decide who dies.”
In addition to concerns about big government, conservative opposition to the death penalty stems from religious values that protect life, the high cost of capital punishment, the expanding list of proven wrongful convictions, and the fact that it does not deter people from committing crime.
The repeal in Nebraska is part of a movement nationwide to abandon the practice and signals a growing concern among conservatives about the death penalty. Republicans are leading repeal efforts in at least a half dozen states nationwide including Kentucky and Wyoming.
A majority of Americans now prefer a sentence of life in prison. According to the Death Penalty Information Center’s 2014 Year End Report, the country saw the lowest number of death sentences handed down in 40 years and the lowest number of executions in 20 years. Though California still houses the largest Death Row in the country, a Field Poll last year found that support for the death penalty was falling rapidly, with voters’ support at its lowest point in half a century.
Nebraska is now the 19th state to abolish the death penalty, while eight other states have abandoned it in practice.
Tsarnaev verdict shows three fatal flaws of death penalty
Posted by Margo Schulter, Guest Blogger on May 20th, 2015
On May 15, we learned that a Boston federal jury had returned a penalty verdict of death for Dzhokhar Tsarnaev, who with his older brother Tamerlan was convicted of the Boston Marathon bombings. Certainly the crimes of Tsarnaev and his elder brother, who was killed in a shootout with police four days later, were horrible. The two bombs near the finish line at the Marathon killed three people and maimed hundreds. The horrible wounds and amputations inflicted and the spectacle of the most powerful government in the world attempting to execute a boy who was only 19 at the time of the crimes, have aroused special emotion. However, we must remember that the main issue here is the death penalty itself, and the harm and trauma it inflicts on all it touches, like those bombs.
Governor Martin O'Malley of Maryland, who played an instrumental leadership role in his state's abolition of the death penalty in 2013, offered some comments about the Tsarnaev verdict that show us how to move forward. Expressing respect for the jury, and offering his prayers for the victims and their families, he focused both on the needs of victims and on the death penalty as a violation of human rights. Before considering Governor O'Malley's points about harm to victims and human rights, let's address an issue that grows out of his reminder that the jurors themselves deserve our respect: the way that the death penalty puts these jurors in an unfair position and harms them also.
1. Cruel and unusual punishment -- for the jurors
First, we should consider that the jurors were unable to adequately represent their community and became victims of a bad system. Massachusetts itself is a strongly abolitionist state, with the last execution in 1947 and abolition in 1984. In Boston, this sentiment is even stronger, with only 25 percent of those polled favoring the death penalty in any case, and only 15 percent for Tsarnaev.
However, Tsarnaev was prosecuted under the Federal Death Penalty Act of 1994, meaning the judge could exclude anyone unwilling to vote for capital punishment. A jury so selected simply could not represent the conscience of the community against whom the bombings had been directed. Nor is this problem new in Massachusetts. A minority report of a Committee on Capital Punishment of the State's House of Representatives, in 1848, observed:
"In Massachusetts, there is notoriously an increasing disinclination to convict, even though jurors are _packed_ as they are, by a most cruel policy, against the prisoner. In the present state of public feeling, every man who has scruples about capital punishment being of course excluded from the jury, and all of humane feelings avoiding, if possible, sitting on a capital case, jurors in capital trials are almost necessarily made up of the hard-hearted -- those who have almost prejudged the case; and yet, even in Massachusetts, either through the partiality of the jury, or the clemency of the executive, it is some years since the death-penalty has been inflicted."
Given the thankless task of speaking for a community they could not truly represent, the jurors were traumatized in two special ways. First, they were asked by the prosecution to overcome their natural instinct against killing, a process which can do immense and enduring psychological harm. Secondly, while any murder trial with its autopsy reports and reliving of gruesome and tragic scenes must be an ordeal for jurors, the logic of the death penalty here made it even worse.
To overcome the reluctance of the jurors to kill a teenager who had no previous criminal record, and since his arrest had been a peaceful prisoner, the prosecution saturated both phases of the trial with gory images, videos, and detailed medical testimony about the effects of the bombs on the victims. This went far beyond the evidence needed to prove the crimes and demonstrate the horrible nature of these explosive devices with their nails and shrapnel.
Without the death penalty, a trial of Tsarnaev in either state or federal court would have been faster and simpler. The prosecution would have produced overwhelming evidence of the defendant's liability for all four murders, either directly or by aiding and abetting his brother, and the jury would have found him guilty as charged. He would have been sentenced to life without parole (LWOP) -- case closed!
2. Cruel and unusual punishment -- for the victims
As Governor O'Malley pointed out, "the appeals process is expensive and cruel to the surviving family members." He knows well, because murder survivors were central both to abolition in Maryland, and in the subsequent effort fulfilling the Governor's promise that funds saved by abolition would be directed to victims services.
After Tsarnaev was convicted in April of the four murders, some of the victims spoke publicly in favor of dropping the death penalty and negotiating a plea agreement to give him LWOP. Most memorably, the family of Martin Richard wrote the Boston Globe to ask that the legal process end without years of death penalty appeals, which would place Tsarnaev in the limelight to reopen their wounds.
Murder survivors with various views on the death penalty itself have drawn the same conclusion either about their own personal needs, or more broadly about what policy is in the interest of victims generally. Thus the family of Matthew Shepard, a young gay man murdered in Wyoming in 1998, preferred a plea agreement for LWOP with no appeals as best meeting their desires for healing, although they are not opposed to the death penalty. Victim and advocate Kathy Garcia is not opposed in principle to capital punishment, but has championed its abolition in States such as New Jersey (2007) and Illinois (2011) because of the immense harm she has seen it do to victims.
Many other survivors, of course, are against the death penalty in principle; but this is an area where people with different views can unite in seeing that LWOP is a better practical solution to give the Richard family and others in their situation a space for privacy, dignity, and healing.
Although the wishes of the Richard family were not followed, President Obama could step in and end their ordeal of being trapped in years of appeals and publicity for Tsarnaev.
Prosecutors argued that, if sentenced to LWOP, Tsarnaev might have his conditions of confinement eased over the years. However, under the Supreme Court decision in Schick v. Reed (1974), the President has the power to modify a death sentence to life on any terms. Within the limits of the Eighth Amendment, it appears that President Obama has virtually unlimited discretion in setting the terms of the LWOP sentence that would replace the death penalty.
Also, federal funds saved by not pursuing years of appeals could be directed to assisting the victims of the bombings, many of whom have ongoing medical issues and dilemmas. That would be a worthy national response to this saga of tragedy and community resilience.
3. Human rights: The company we keep
Governor O'Malley also reminded us that the death penalty for Tsarnaev puts us in the company of the other nations where "the vast majority" of executions happen: North Korea, Iran, Iraq, Yemen, and China. One might add Saudi Arabia; and also the Islamic State as a reminder of how legal or extrajudicial executions are a hallmark of precisely the terrorism that we seek to counter.
In the course of his remarks, the Governor offered a familiar truth applying to capital crimes generally: "The death penalty is ineffective as a deterrent." However, that truth applies with special force to terrorist crimes, where the terrorists may either themselves seek death, or may be ready to die if they are unable to escape.
In our imperfect world, although we may be unable totally to abolish murder and terrorism, we do have the power both drastically to reduce their frequency and to limit their moral domain. Let the killing of subdued prisoners be a trademark of tyrants and terrorists, as opposed to responsible governments.
Margo Schulter was born in Los Angeles in 1950 and became a committed death penalty abolitionist shortly after the execution of Caryl Chessman in 1960. Since 1977, as a non-attorney, she has taken a special interest in legal and constitutional issues concerning the death penalty, with an emphasis on historical aspects. From time to time, she guest blogs for DPF.
DPF 24th Annual Awards Dinner draws Supporters, Activists and Exonerees
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The Death Penalty Focus 24th Annual Awards Dinner was a huge success. It was an evening filled with hope and inspiration and even a bit of comedy thanks to our fabulous host John Fugelsang. Each year, Death Penalty Focus honors those who have committed themselves to standing up for justice. This year, nearly 350 people joined us.
It was one of the most successful dinners in DPF history as a result of generous donations from guests and sponsors. We raised over $200,000. Of that, nearly $70,000 came in on the evening of the dinner, in part because of a $30,000 matching grant provided by co-chairs Sherry and Leo Frumkin, Sarah Timberman and Ed Redlich, and Eugenie Ross-Leming and Robert Singer. That’s more than double our most successful fund drive to date!
In all honesty, our awardees stole the show by providing us with a powerful reminder of why our fight must continue. We were thrilled to honor three exonerees from Ohio and the attorneys who fought for their freedom. Kwame Ajamu, Wiley Bridgeman and Ricky Jackson came to Beverly Hills to receive our Rose Elizabeth Bird Commitment to Justice Award. These three men spent over a century in prison after they were sentenced to die for a crime they did not commit. They were released last November, thanks to the Innocence Project and their attorneys Terry Gilbert, Mark Godsey, Brian Howe, and David Mills.
Our Abolition Award went to Assistant Federal Public Defender Dale Baich, who has spent nearly three decades defending the constitutional rights of death row inmates. He is currently representing three inmates scheduled for execution in Oklahoma, a case the U.S. Supreme Court is reviewing and we are all closely watching.
We were also thrilled to present an award to Alex Gibney, Brad Hebert and Laura Michalchyshyn, executive producers of Death Row Stories, a CNN series exploring cases that address hard questions about capital punishment. And we had a touching tribute to Rabbi Leonard Beerman, a founding DPF board member who posthumously received the Lifetime Achievement Award.
President Jimmy Carter and Actor and Sundance Founder Robert Redford both sent messages congratulating the honorees.
All in all, a fabulous evening. DPF offers our heartfelt thanks and appreciation to the following sponsors:
Mike Farrell and Shelley Fabares
Sherry and Leo Frumkin
Ed Redlich and Sarah Timberman
Eugenie Ross-Leming and Robert Singer
Clark & Rice, A Professional Corporation
CNN, Jigsaw Productions & Sundance Productions
Larry Flynt Publications
Sisters of St. Joseph of Carondelet
Kristin Zethren & Chic Wolk
Sue & Dick Wollack
All Saints Church
G.F. Bunting and Co
Robert Greenwald & Heidi Frey
Courtney Minick & Brandon Long
Dr. Joan Willens Beerman
Mary Broderick, Linda Fox & Virginia Van Zandt
Reed Smith, LLP & Loyola Law School’s Project for the Innocent
Religious of the Sacred Heart of Mary
Sisters of St. Joseph of Orange
The Aubuchon/Felton Families
Richard E. Carlburg
Nancy Cotton & John Given
Susannah Grant & Christopher Henriksen
Manatt, Phelps and Phillips
The Moore-MacMillan Family
Thomas R. Parker & Karen Broumand
Rabbi Steven & Didi Carr Reuben
Terry Richards, Founder Veterans Against the Death Penalty www.vatdp.org
Jonathan B. Steiner
Nancy Stephens & Rick Rosenthal, The Rosenthal Foundation
Linda & Jay Walsh
Mary Ellen Glaser
Mark & Marjorie Sheinberg
Support for Capital Punishment Continues to Drop
Posted by on April 16th, 2015
A report released today by the Pew Research Center shows that support for the death penalty is at a 40 year low. The number of people who support capital punishment dropped another six percent since 2011.
In addition, more Americans are becoming aware of the risk of executing the wrongfully convicted. A record 71 percent of Americans now believe there is a possibility that an innocent person will be put to death. This news comes days after Anthony Hinton was released from Death Row, becoming the 152nd person on the list of death row exonerees.
The study also showed that 61 percent of Americans believe the death penalty does not deter people from committing serious crimes. And more than half say that minorities are more likely than whites to be sentenced to death.
Read the full report here.
LA Times says it was wrong about McVeigh, opposes death penalty
Posted by on April 9th, 2015
We applaud the LA Times Editorial Board for taking a difficult stand against the death penalty in the federal case of Dzhokhar Tsarnaev.
This was a terrible crime that killed three and wounded hundreds, and it is understandable that Americans want vengeance. But we must remember that the death penalty is not a deterrent for would be terrorists and there is no benefit to society in avenging death with more death.
The Times Board admits regret in calling for the execution of Timothy McVeigh in 2001, saying “that editorial was written out of passion, not justice.”
In the years since McVeigh’s execution, support for the death penalty in this country has fallen. Since 1996, support has dropped by 23 percentage points, reaching its lowest level in almost two decades, according to a 2014 poll by the Pew Research Center. In just the past eight years, six states have abolished the death penalty and five have imposed moratoriums.
As the Times Board said, Tsarnaev should be sentenced to life in prison without possibility of parole because “killing another human being is immoral, whether by bomb or by lethal injection.”
Three more San Quentin inmates die
Posted by Leslie Fulbright on March 27th, 2015
In just two weeks, three inmates on San Quentin’s Death Row have died. Though sentenced to death, they weren’t executed but join the overwhelming number who die while awaiting appellate review.
More than 1,000 people have been sentenced to death in California, and only 13 have been executed since 1967. At least 67 inmates have died from natural causes (two are still pending autopsies). Records show that all but one had a direct appeal or habeas petition still pending, and one third died before the state Supreme Court could even review their conviction or sentence on direct appeal.
This again proves the dysfunction of the California death penalty system. In July, Judge Cormac Carney ruled the decades-long delays are unconstitutional and amount to cruel and unusual punishment.
Death Penalty Focus supports that ruling and recently joined other groups in submitting an amicus brief on behalf of the inmate whose sentence was overturned. The brief demonstrates that many Death Row inmates are denied their right to due process by the mistakes that characterize the state’s death penalty.
Not only does capital punishment waste taxpayer dollars but the delays often preclude inmates who are innocent or denied a fair trial from obtaining relief because they die before the judicial review is complete. It’s time to get rid of this expensive, ineffective and broken system.
Pictured is Teofilo Medina Jr., who died March 22 at the age of 70.
Read the amicus brief filed by Death Penalty Focus.
Arizona Woman Exonerated after 22 Years
Posted by on
An Arizona judge recently dismissed all charges against Debra Milke, but only after she spent half her life in a cell on Death Row.
Her conviction was based on evidence from Armando Saldate, a corrupt police detective who is now retired. He was known to lie under oath and violate suspects’ rights during interrogations. Prosecutors failed to mention this at trial and Milke was convicted based on his testimony.
She spent 22 years in prison.
“The constitution requires a fair trial,” wrote Chief Judge Alex Kozinski of the federal 9th Circuit Court of Appeals. “This never happened in Milke’s case.”
Milke brings to 151 the number of people freed from Death Row. We wonder how many others there are.
As long as we have the death penalty, executing innocent people remains a possibility.
Pope Francis Condemns the Death Penalty
Posted by on
Pope Francis has again condemned the death penalty, saying it is unacceptable, unjust, and inhumane.
During a visit from the delegation of the International Commission against the Death Penalty, the Pope reaffirmed his abolitionist stance and said that no crime warrants killing and the suffering that comes with it.
Capital punishment "is cruel, inhuman and degrading, as is the anxiety that precedes the moment of execution and the terrible wait between the sentence and the application of the punishment, a 'torture' which, in the name of a just process, usually lasts many years and, in awaiting death, leads to sickness and insanity."
The pope said the death penalty brings no justice to victims of crime and encourages revenge. Quoting Russian Fyodor Dostoyevsky's “The Idiot”, the pontiff said “murder by legal sentence is immeasurably more terrible than murder by brigands."
DPF files brief on behalf of Ernest Jones
Posted by Leslie Fulbright on March 9th, 2015
On Friday, a number of groups filed legal briefs on behalf of Ernest Jones, the Death Row inmate whose sentence was overturned by Judge Cormac Carney in July. In that ruling, the judge declared California’s death penalty unconstitutional saying the delays caused by the dysfunctional system amount to cruel and unusual punishment.
California Attorney General Kamala Harris appealed that case to the U.S. 9th Circuit Court of Appeals, saying the process provides protections to defendants. The Death Penalty Focus amicus brief rebuts the Attorney General’s argument by demonstrating that many Death Row inmates are denied their right to due process by the delays, dysfunction and mistakes that characterize California’s death penalty system.
And their families suffer with them. During decades-long delays, inmates are more likely to die than have their arguments heard. If they do live long enough for a new trial, their mental health has often deteriorated or the evidence is lost or stale.
It is estimated that for every death sentence, eight family members are profoundly affected. Families of inmates on Death Row deal with guilt, stigma and social isolation that can lead to depression, hopelessness, even suicide. These hidden victims often aren’t able to ever find out if their loved ones are actually innocent.
And as California’s Death Row population rises, the delays grow longer. The current average of 30 years will soon reach 40 and 500 more inmates will die before the courts rule on their cases.
The DPF brief outlines three cases:
Ralph International Thomas. He was granted a new trial due to ineffective counsel 30 years after his death sentence but was unable to benefit because his health deteriorated. He died in custody and his mother had to deal with the guilt of not being able to afford private counsel.
Dennis Lawly. He was a diagnosed schizophrenic who represented himself when he was sentenced to death. Another man later confessed and the murder weapon was found but Mr. Lawly was awaiting a hearing when he died in his cell in San Quentin. His mother blames herself for his deluded defense. She said he wouldn’t have gone to death row if he had a lawyer. She’ll never know if he would have been exonerated.
Jarvis Masters. He was 19 when he was sentenced to 23 years. Although he completed his sentence, he was not released because he received a death sentence in connection with the murder of correctional officer. Another man confessed but Mr. Masters’ appeal is still pending.
Read the amicus brief filed by Death Penalty Focus.
Death Penalty Talk in LA
Posted by on
Death Penalty Focus President Mike Farrell will participate in a panel discussion before the Dead Man Walking opera in Santa Monica on March 7 and 8.
The opera is based on Sister Helen Prejean’s seminal nonfiction book.
The panel will be moderated by DPF Board Member and past president of ACLU of Southern California Stephen Rohde.
For more information and tickets, visit the Broad Stage website.
DPF In the News!
Posted by on February 20th, 2015
Twenty years ago, DPF President Mike Farrell appealed for clemency for Anthony Apanovitch. Last week, a judge threw out the murder conviction of the man who spent three decades on Death Row.
"His case is yet another lesson in why the death penalty makes no sense -- for the accused, for taxpayers, or for the families of victims."
Read Mike Farrell's guest column in today's Cleveland Plain Dealer.
Attorney General Calls for Moratorium
Posted by on February 18th, 2015
The states of Florida and Alabama have delayed pending executions until the Supreme Court rules on whether the lethal injection protocol is unconstitutional.
This comes after the high court decided last month to review an Oklahoma case after botched executions led to concerns about the effectiveness of the drug midazolam as a sedative.
On Tuesday, Attorney General Eric Holder said he believes there should be a nationwide moratorium on capital punishment until a decision is made by the Supreme Court on whether the procedure violates the ban on cruel and unusual punishment.
A decision is expected in June. Until then, all states with similar protocols should join Florida and Alabama and halt executions.
But the complicated questions about whether it’s possible to humanely execute people are just another indication that the system is irreparable. In addition to the issue of constitutionality, a majority of Americans prefer a sentence of life in prison because of the high cost of the death penalty and proven risk of executing innocent people.
Pennsylvania Governor Halts Executions
Posted by Leslie Fulbright on February 13th, 2015
Pennsylvania Governor Tom Wolf declared a moratorium on the death penalty today, saying the system is flawed, ineffective, unjust, and expensive.
The state houses the fifth largest Death Row in the nation with 186 prisoners. In nearly 40 years, there have been 434 signed death warrants but only three inmates have been executed.
“This unending cycle of death warrants and appeals diverts resources from the judicial system,” Wolf wrote in a statement explaining his decision. “It is drawn out, expensive and painful for all involved.”
Since the reinstatement of the death penalty, 150 people have been exonerated including six men in Pennsylvania. Wolf said the system is “riddled with flaws making it error prone, expensive, and anything but infallible.”
In noting further defects of the capital punishment system, Wolf pointed to strong evidence that a person is more likely to be charged with a capital offense and sentenced to death if he is poor, a minority, and particularly where the victim of the crime was white.
The governor’s action is part of a growing movement to abandon the practice. Pennsylvania becomes the fourth state to impose a moratorium on the death penalty, in addition to six states that have abolished capital punishment since 2007.
Wolf will await a report from a task force on capital punishment and until then will grant reprieves each time an execution is scheduled. The first temporary reprieve was given to Terrence Williams who was set to be executed on March 4.
"I think Governor Wolf realizes that when you have more exonerated prisoners than executed prisoners in 30 years, the system handed to you was obviously broken," said Nick Yarris, who was exonerated by DNA evidence after serving 21 years on Pennsylvania’s Death Row.
Like Pennsylvania, California has wasted millions of taxpayer dollars on a system that serves no useful purpose, risks executing an innocent person, and is increasingly losing support. According to the California Legislative Analyst Office, replacing the death penalty with life in prison without the possibility of parole would save the state $130 million each year. Yet California continues to house the largest death row population in the country.
The only option is to end this costly charade and replace it with a system that is fair and consistent for everyone.
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