[Deathpenalty] death penalty news-----USA

[Rick Halperin]

May 17



USA:

Prisoner-assisted homicide - more 'volunteer' executions loom

Amnesty International

When a capital defendant seeks to circumvent procedures necessary to
ensure the propriety of his conviction and sentence, he does not ask the
State to permit him to take his own life. Rather, he invites the State to
violate 2 of the most basic norms of a civilized society - that the
State's penal authority be invoked only where necessary to serve the ends
of justice, not the ends of a particular individual, and that punishment
be imposed only where the State has adequate assurance that the punishment
is justified. United States Supreme Court Justice, 1990(1)

You can read the entire report here:
http://web.amnesty.org/library/Index/ENGAMR510872007

****

AI Index: AMR 51/087/2007-----UNITED STATES OF
AMERICA-----Prisoner-assisted homicide  more 'volunteer' executions loom


When a capital defendant seeks to circumvent procedures necessary to
ensure the propriety of his conviction and sentence, he does not ask the
State to permit him to take his own life. Rather, he invites the State to
violate two of the most basic norms of a civilized society  that the
State's penal authority be invoked only where necessary to serve the ends
of justice, not the ends of a particular individual, and that punishment
be imposed only where the State has adequate assurance that the punishment
is justified.

United States Supreme Court Justice, 1990(1)

Robert Comer, Christopher Newton and Elijah Page have something in common,
aside from being on death row in the USA. Each of these 3 men is assisting
their government in its efforts to kill them. They have given up their
appeals and are "volunteering" for execution. Robert Comer is scheduled
for execution in Arizona on 22 May 2007, Christopher Newton in Ohio on 23
May, and in the week of 9 July Elijah Page is due to become the 1st person
to be put to death in South Dakota since 1947. In addition, on 4 May 2007,
the Tennessee Attorney General requested an execution date for Daryl
Holton, a former soldier with a history of depression, who has effectively
waived his appeals and has been found competent to do so.

The execution of another "volunteer", Carey Dean Moore, due to be carried
out in Nebraska on 8 May 2007, was stopped by the state Supreme Court on 2
May in view of concerns  not raised by Moore  about Nebraskas use of the
electric chair. In issuing its order, a divided Court noted that the
"unique problem presented by this case is that Moore has not asked for a
stay." It added, however, that "we simply are not permitted to avert our
eyes from the fairness of a proceeding in which a defendant has received
the death sentence", and that "we have authority to do all things that are
reasonably necessary for the proper administration of justice".(2) It
seems that not all courts have adopted such a view, and "volunteers" have
gone to their deaths despite concerns about the fairness of proceedings
that put them on death row or about the reliability of determinations that
found them competent to waive their appeals.

About 1 in 10 of the men and women put to death in the USA since judicial
killing resumed there in 1977 had given up their appeals. Outside of the 5
main executing states of Texas, Virginia, Oklahoma, Missouri and Florida,
this figure rises to 1 in 5 for the remaining 28 jurisdictions that have
executed since 1977. 4 of the first 5 executions in the USA after 1977
were of "volunteers". Put to death by firing squad, electrocution, and
gas, perhaps their personal pursuit of execution made it easier for the
USA to stomach a return to a punishment that much of the rest of the world
was beginning to abandon.

14 US states, and the federal government, resumed executions after 1977
with the killing of a prisoner who had waived his appeals. 5 of the states
which have resumed executions, Connecticut, Idaho, New Mexico, Oregon and
Pennsylvania, have yet to execute a "non-volunteer". In other words, if
the 8 inmates who have been put to death there had not given up their
appeals, these 5 states would likely not yet have resumed executions. 20
of the 27 executions so far carried out in Kentucky, Montana, Nevada, Utah
and Washington have been of prisoners who waived their appeals (see table
at end of report).

Race and mental health appear to be the strongest predictors of who will
waive their appeals  most "volunteers" are white males (as are the 5
prisoners featured in the second half of this report), and many have a
history of mental disorders.(3) Nevertheless, a review of such cases
suggests that any number of factors may contribute to a prisoners decision
not to pursue appeals against their death sentence, including mental
disorder, physical illness, remorse, bravado, religious belief, a quest
for notoriety, the severity of conditions of confinement, including
prolonged isolation and lack of physical contact visits, the bleak
alternative of life imprisonment without the possibility of parole,
pessimism about appeal prospects, or being worn down by the cycle of hope
and despair generated by winning and then losing appeals. (4)

Death row conditions in the USA have become increasingly harsh over the
years, with inmates spending more time in isolation. As one recent study
of "volunteers" has pointed out, "in virtually every state, death row
inmates are 'locked down' in their cell for most of the day, have little
or no access to educational or other prison programs and experience great
isolation and loss of relationships".(5) Such relationships include those
with fellow inmates who may leave death row through a successful appeal or
because they die, including at the hands of the state executioners.

David Dawson was executed in Montana in 2006 after two decades on death
row. His lawyers argued that his decision to waive his appeals and fire
them had been influenced by the harsh conditions on Montana's death row
and the suicides of 2 other condemned inmates who hanged themselves in
their cells in July 2003 and February 2004. In Robert Comer's case, his
close friend, Robert Vickers, whom he had met on Arizona's death row, was
executed in 1999. In evaluating Comer's continuing decision to waive his
appeals, a psychiatrist found that in the weeks after the execution of
Vickers, Robert Comer "had no interest in anything. He had no pleasure in
anything. He spent most of the time in his bunk. Contrary to his usual
pattern of walking 14 to 20 hours a day in his cell, he didn't walk much
at all. He expressed great sadness and he was in deep depression."(6)

A condemned inmate's decision to waive his or her appeals may simply stem
from a desire to gain a semblance of control over a situation in which
they are otherwise powerless. As the US Supreme Court recognized over a
century ago, "when a prisoner sentenced by a court to death is confined in
the penitentiary awaiting the execution of the sentence, one of the most
horrible feelings to which he can be subjected during that time is the
uncertainty during the whole of it, as to the precise time when his
execution shall take place."(7) One way for a prisoner to end this cruel
uncertainty is to ask to be killed by the state.

In order to "volunteer" for the death penalty, an individual only has to
be found competent to do so. The test which some courts in the USA use to
determine competency to waive appeals is based on a 1966 US Supreme Court
decision and is "whether [s/]he has the capacity to appreciate his [/her]
position and make a rational choice with respect to continuing or
abandoning further litigation or on the other hand whether [s/]he is
suffering from a mental disease, disorder, or defect which may
substantially affect his [/her] capacity".(8) If a condemned inmate is
found incompetent to waive his or her appeals  a rare event  someone found
to have legal standing as a "next friend" may pursue litigation on their
behalf.(9)

Issues of mental illness aside, what amounts to a "rational" choice in
this regard? If a prisoner is threatened with death at gunpoint during an
interrogation, is it not "rational" for that prisoner to say what he or
she thinks the interrogator wants to hear? It does not mean the statement
is voluntary. In the case of a prisoner condemned to death, he or she
"must inevitably experience extraordinary mental anguish".(10) Is it not
"rational" for such a prisoner to escape a process which "is often so
degrading and brutalizing to the human spirit as to constitute
psychological torture"?(11) As has been said, "the realities of life on
death row convey to the prisoner such a resounding message that no 'spoken
words' of coercion need be expressed. Through the daily indignities both
big and small, the near total isolation which extends for years, the
absence of virtually all activities, and other brutal conditions, the
death row prisoner is 'told' he is worthless and should be and will be
dead. The 'choice' presented by the State is to die now or continue to be
punished for challenging the States decision by the harsh regimes reigning
on death row".(12)

Rational or irrational, can a decision taken by someone who is under
threat of death at the hands of others be truly voluntary? Even if it
were, there is no disguising the fact that the state is pursuing a killing
that is at least as calculated, and in all likelihood more so, as any
murder for which the condemned inmate is being punished.

Suicidal ideation seems to motivate the decision-making of some such
inmates. William Downs, for example, had a history of depression and
suicide attempts from the age of 10. He also attempted suicide while in
pre-trial custody for the capital murder of a 6-year-old boy in 1999. He
pleaded guilty at his 2002 trial and refused to allow mitigation evidence
to be presented on his behalf, including of his abusive childhood at the
hands of his father. After he was sentenced to death, he waived his
appeals. At a hearing, a forensic psychiatrist testified that she could
not offer an opinion on Downs competence to drop his appeals, instead
suggesting that he should be treated for his depression to see if that
would cause him to change his mind. The judge ruled that, while such a
suggestion was well-intentioned, a delay was unnecessary for the court to
reach its opinion. The judge ruled that William Downs did not have a
current desire to commit suicide, but that he preferred execution to
imprisonment. William Downs was put to death in South Carolina on 14 July
2006.

With such cases in mind, the execution of "volunteers" is often compared
to state-assisted suicide. However, "prisoner-assisted homicide" may be a
more appropriate description of this phenomenon. Notably, for example, in
the leading death penalty state of Texas, "homicide"  the killing of one
human being by another  was the cause of death given on the death
certificates of the nearly 350 prisoners executed between December 1982
and September 2005, including the 25 who had given up their appeals and
"consented" to execution during this period.(13) Moreover, if a death row
inmate attempts to pre-empt the executioner by committing actual suicide,
the state will make every attempt to prevent it.(14) Gary Gilmore, for
example, whose execution by Utah firing squad on 17 January 1977 opened
the "modern" era of judicial killing in the USA, was twice hospitalized in
intensive care after overdosing on drugs on death row. He had spent only
three months on death row, fighting all attempts to stop his execution,
including by his mother. The chief forensic psychiatrist at Utah State
Hospital theorized that Gary Gilmore "went out of his way to get the death
penalty; thats why he pulled two execution-style murders he was bound to
be caught for. I think it's a legitimate question, based on this evidence
and our knowledge of the individual, to ask if Gilmore would have killed
if there was not a death penalty in Utah".(15)

The cases of some other individuals executed since then indicate that not
only were they not deterred by the death penalty, but that the punishment
actually motivated their crime.(16)

In any event, while some prisoners give up their appeals after years on
death row, the death wish of others precedes their trials. Their
unwavering pursuit of execution suggests that for them, far from being the
deterrent some politicians claim(17), the death penalty represents a form
of escape, whether from the torments of their lives, their crimes, or
their minds. Christopher Swift was executed in Texas on 30 January 2007
after giving up his appeals against his death sentence for the April 2003
murder of his wife and mother-in-law. According to one of his trial
lawyers, "receiving the death penalty is what he's wanted from day one,
from the first day I met him."(18) Swift had prevented his lawyers from
presenting any witnesses at his 2005 trial. He waived his right to a
lawyer for his automatic mandatory appeal, and when the death sentence was
affirmed, asked for an execution date to be set.

Darrell Ferguson had a history of mental health problems and suicide
attempts. Before his murder trial in 2003, he wrote to the judge and
prosecutor. In a letter to the prosecutor, Ferguson admitted his guilt and
expressed his wish to "get this over with as soon as possibleDarrell Wayne
Ferguson wishes to seek the death penalty." In a letter to the judge, he
wrote: "I have no Remorse for what I did", and asked "in my right state of
mind would you please Find it in good will to give me the Death penalty"
[sic]. He subsequently pleaded guilty and waived his right to a jury
trial. He waived the presentation of any mitigating evidence. Before he
was sentenced, the defendant read out a letter to the court stating his
lack of remorse, and that if he was freed back into society he would "pick
up where I left off from and take the pleasure of causing destruction. I'm
not afraid of death like some of you are". He was sentenced to death,
waived his appeals, and was executed in Ohio's lethal injection chamber on
8 August 2006.

The death penalty appears to have held no deterrent value for Rocky Barton
either. At his trial in 2003 for the murder of his wife, he refused to
have any mitigating evidence presented to the jury. Instead, he told the
jurors: "I strongly believe in the death penalty. And for the ruthless,
cold-blooded act that I committed, if I was sitting over there, I'd hold
out for the death penalty That's the only punishment for this crime."

The US death penalty has consistently been shown to be marked by racial
bias, with those who murder whites more likely to receive a death sentence
than those who murder non-whites. In addition, blacks are
disproportionately represented on death row in the USA.

86 % of executed "volunteers" were white (106 men and 3 women), compared
to 53 % in the case of "non-consensual" executions. Given the rate of
reversible error found in capital cases, the phenomenon of inmates waiving
their appeals may, even if only marginally, be obscuring an aspect of
racial disparity in the use of the death penalty. In other words, given
that most "volunteers" are white, if they had have pursued their appeals,
some would have been successful, and fewer whites would have been
executed.

Of the 1,076 people put to death in the USA since 1977, 15 were of whites
convicted of killing only black victims. 3 of these 15 executions (20 %)
were of "volunteers". Some 215 African Americans have been executed for
killing only white victims. 5 of these prisoners ( 2 %) were put to death
after waiving their appeals.

In its 2006 affirmation of Rocky Barton's death sentence on mandatory
review, the Ohio Supreme Court rejected the argument that the trial judge
should have inquired whether Barton was mentally competent to waive his
right to present any mitigating evidence. The high court reached this
conclusion by deciding that Barton's statement to the jury asking for the
death penalty was mitigating evidence. 2 of the Justices dissented. One
wrote: "Our countrys most creative writers of fiction would be
hard-pressed to spin Bartons statement as evidence offered in mitigation.
Yet a majority of this court unquestioningly accepts that it was." The
Chief Justice wrote: "It is difficult to imagine more compelling indicia
of incompetence" than a defendant asking to be executed, and accused the
majority of applying "inverse logic" in order to interpret the statement
as mitigating.

In an interview on death row, in contrast to his assertion to the jury
that he had committed a "ruthless, cold-blooded" murder, Rocky Barton
recalled that the shooting was done on the "spur of the moment", and "was
not planned, calculated, designed". He said that he had planned to kill
himself in front of his wife, but had instead turned the gun on her. He
then shot himself in the head, but survived. He was sentenced to death and
waived his appeals. The state indisputably carried out a "planned,
calculated, designed" killing when it executed Rocky Barton on 12 July
2006.

The issue of defendants who prevent their lawyers from presenting
mitigating evidence is one that has only recently been considered by the
US Supreme Court, and even then not head-on.(19) The case before it
concerned that of Arizona death row inmate Jeffrey Landrigan who had
refused to allow his lawyers to present the testimony of his former wife
and his mother in mitigation at his murder trial. Asked by the trial judge
if he would like to say anything on his own behalf, the defendant replied
"I think if you want to give me the death penalty, just bring it right on.
I'm ready for it." He was sentenced to death. In 2006, the US Court of
Appeals for the Ninth Circuit sent the case back to the federal District
Court for an evidentiary hearing into whether his trial lawyers failure to
investigate mitigating evidence beyond the testimony of the 2 family
witnesses he intended to present had prejudiced the outcome of the trial.
Investigation by the lawyer, for example, would have revealed Landrigan's
profoundly troubled childhood and the fact that he suffered from a serious
organic brain disorder.

However, on 14 May 2007, in a split decision, the US Supreme Court
overturned the Ninth Circuit ruling. The 5 Justices in the majority
concluded that the District Court had not abused its discretion when it
refused to grant Jeffrey Landrigan an evidentiary hearing "on his counsels
failure to present the evidence he now wishes to offer". The other 4
Justices dissented, arguing that "the Courts decision rests on a
parsimonious appraisal of a capital defendants constitutional right to
have the sentencing decision reflect meaningful consideration of all
relevant mitigating evidence, a bregrudging appreciation of the need for a
knowing and intelligent waiver of constitutionally protected trial rights,
and a cramped reading of the record". The four dissenters took issue with
the majority's reasoning that Landrigan "would have" waived his right to
introduce any mitigating evidence that his lawyer might have uncovered,
and that such evidence "would have" made no difference to the sentencing
outcome. "Without the benefit of an evidentiary hearing", the four wrote,
"this is pure guesswork".(20)

Guesswork is in effect what the sentencing jury or judge is left to engage
in if denied the ability to take mitigating evidence into account.
Guesswork should have no place in deciding an irrevocable penalty.

David Kevin Hocker's murder trial in Alabama started and finished on the
same day, 22 August 2000. Proceedings began at 9 o'clock in the morning
and were completed before 5pm. The defence called no witnesses at either
stage of the trial. Hocker had refused to allow his lawyer to present any
mitigating evidence. The jury therefore never heard about Kevin Hocker's
history of bipolar disorder or his abusive childhood. Nor did the jurors
hear that his father, who also suffered from bipolar disorder (this
illness can run in families), committed suicide when Kevin Hocker was 8
years old. The father had been abusive to the children  Kevin Hocker's
sister is reported to have been treated for post-traumatic stress disorder
sustained as a result of the abuse. Kevin Hocker was first diagnosed with
bipolar disorder as a teenager. His mother tried to get him help for his
mental illness, but he would deny that he was ill. Instead, he took to
self-medicating. Kevin Hocker was again diagnosed with bipolar disorder by
a prison doctor when incarcerated in the 1990s, but he stopped taking his
medication because he said that it was not helping. His sister has said
that he told her that he committed the crime in order to get the death
penalty. The jury voted for death. On death row, he engaged in acts of
self-mutilation. He was found unconscious in his cell one day, having
removed one of his testicles with a razor blade. A few months later, he
removed the other. He refused to appeal his death sentence, and was
executed on 30 September 2004.(21)

Some "volunteers" begin their pursuit of execution by firing their legal
counsel.(22) At his December 2006 trial in Alabama, capital defendant
Christopher Johnson fired his lawyers, admitted to killing his baby son,
and asked for the death penalty. As the prosecutor put it, "the jury
complied with Mr Johnson's wishes" and it recommended a death
sentence.(23) Reminiscent of Robert Comer's case 2 decades earlier (see
below), on the day of his sentencing in February 2007, Christopher Johnson
reportedly refused to come out of his cell, and sat on the top bunk in his
cell beating his head against a wall. Jail guards extracted him from his
cell, using an electro-shock stun gun. He was showered, shackled to a
wheelchair, and brought to the courtroom for sentencing. The judge said
that he found a possible mitigating factor, namely a report that Johnson
had been sexually abused as a child. Johnson responded that the report was
untrue. The judge accepted the jurys recommendation, saying to Johnson "it
is not my job to go into your mind and consider your motives" for
dismissing his attorneys and seeking a death verdict.(24)

James Karis asked for the death penalty at his recent re-sentencing in
California. Originally tried in 1982, in 2002 the Ninth Circuit Court of
Appeals upheld a federal judges 1998 decision to overturn his death
sentence.(25) The federal judge had found that the jury might not have
voted for a death sentence if it had heard the "substantial and wrenching"
evidence of Karis' violent and abusive childhood, including at the hands
of his father and stepfather. At his re-sentencing trial in 2007, the jury
still did not hear that mitigating evidence because James Karis did not
want them to. Karis fired his lawyers, who had investigated his background
of abuse in preparation to present to the jury, and elected to represent
himself instead. He refused to present any mitigating evidence and urged
the jury to send him back to death row. The jurors complied with his wish,
and on 25 April 2007 he was sentenced to death. Nevertheless, as the
California Supreme Court stated in 1985:

"To allow a capital defendant to prevent the introduction of mitigating
evidence on his behalf withholds from the trier of fact potentially
crucial information bearing on the penalty decision no less than if the
defendant was himself prevented from introducing such evidence by statute
or judicial ruling. In either case the state's interest in a reliable
penalty determination is defeated."(26)

Under the US Supreme Court's 1976 ruling, Gregg v. Georgia, allowing
executions to resume after nearly a decade without them, the death penalty
in the USA is supposed to be reserved for the "worst of the worst".(27)
The mandatory death penalty has long been ruled unconstitutional in the
USA, and the capital sentencing decision is supposed to be individualized,
with the jury being able to take into account any mitigating evidence and
the prosecution presenting the reasons why the defendant should be
executed rather than imprisoned. If the defendant refuses to allow any
mitigating evidence, even when compelling evidence of childhood abuse or
mental disability is available, and goes so far as to demand the death
penalty, does the system's accommodation of this demand not come
perilously close to constituting a quasi-mandatory death sentence? It is
certainly one where the sentencing authority did not take into account the
background and circumstances of the defendant to weigh against the facts
of the crime and the government's bid for a death sentence. As a US
Supreme Court Justice said in such a case in 1979, "We can have no
assurance that the death sentence would have been imposed if the
sentencing tribunal had engaged in the careful weighing process that was
held to be constitutionally required in Gregg v. Georgia and its progeny.
This Courts toleration of the death penalty has depended on its assumption
that the penalty will be imposed only after a painstaking review of
aggravating and mitigating factors. In this case, that assumption has
proved demonstrably false. Instead, the Court has permitted the State's
mechanism of execution to be triggered by an entirely arbitrary factor:
the defendants decision to acquiesce in his own death."(28)

While James Karis has not waived his appeals, there are numerous other
death row inmates around the country who continue to do just that. Some
change their minds. Others do not, and their death wish is fulfilled by a
state all too willing to see freedom of choice for such individuals
carried through to its lethal conclusion. For example, Tennessee death row
inmate Christa Pike dropped her appeals in 2001, and faced an execution
date in August 2002 before changing her mind. A county judge ruled that
she was too late to change her mind, but the Tennessee Supreme Court
eventually overruled that decision. At a hearing in early 2007, a court
heard evidence of the alleged abuse to which she was subjected as a child
and of her mental illness, including bipolar disorder. In neighbouring
Kentucky, Marco Allen Chapman, whose case is currently under automatic
review, has claimed that he will continue to waive his appellate rights.
He pleaded guilty at his 2004 trial, waived his right to present
mitigating evidence, and asked for the death penalty.

30 years ago, dissenting against the US Supreme Court's refusal to stop
the execution of Gary Gilmore, Justice Thurgood Marshall argued that
without appellate review "an unacceptably high percentage of criminal
defendants would be wrongfully executed  'wrongfully' because they were
innocent of the crime, undeserving of the severest punishment relative to
similarly situated offenders, or denied essential procedural protections
by the State".(29) Given the rate of reversible error found in capital
cases  not just as a result of mandatory review but also discovered during
subsequent state and federal appellate proceedings  if the more than 120
"volunteers" executed since 1977 had pursued their appeals, there is a
significant possibility that a number of them would have had their death
sentences overturned to prison terms. To look at it another way, the
phenomenon of "volunteers" contributes to the arbitrariness that riddles
the use of the death penalty in the USA.

The US Supreme Court has not passed a constitutional rule requiring
mandatory review of state death sentences. Nevertheless, as of the end of
2005, of the 38 US states with capital statutes, 37 provided for automatic
review of all death sentences, regardless of the defendants wishes. Such
review is usually conducted by the state's highest appellate court.(30) In
most of the states, the law also requires review of the inmates conviction
as well as sentence, although not in Idaho, Montana, Oklahoma, South
Dakota and Tennessee. In Indiana and Kentucky, a defendant can waive
review of the conviction. In Virginia a defendant can waive an appeal of
trial court error but cannot waive proportionality review. Only in South
Carolina does the defendant have the right to waive any review if he or
she is deemed competent to do so.(31) In addition, federal death row
inmates do not get an automatic review.(32)

The different ways in which the different states deal with the question of
"volunteers" adds to the inconsistencies of the US death penalty.(33) A
study published in 2002 noted that although most states prohibit death row
inmates from waiving automatic review of their case, few states have
restrictions at other stages of the capital process, including trial
proceedings.(34) The study found that two states, New York and Arkansas,
prohibited a defendant from entering a guilty plea if the prosecution was
seeking the death penalty.(35) Only New Jersey prohibited the waiver of
mitigating evidence.(36) New Jersey, through its Supreme Court, was also
the only state to restrict waivers on post-conviction appeals beyond the
initial automatic review.(37)

The general absence of prohibitions on pleading guilty or on waiving the
presentation of mitigating evidence means that while "almost every state
requires an appellate review of the trial proceedings, very few states
require that the trial proceedings actually occur. Oddly the review of the
trial occupies a position of greater importance than the trial
itself".(38) As such, the accused murderer in effect is allowed to "waive
societys interest in fair and consistent application of the ultimate
punishment of death".(39)

A degree of arbitrariness would also be indicated if a death row prisoner
were to be prematurely executed after waiving appeals, and soon afterwards
a new rule of constitutional law emerges from which he or she would have
benefited. In May 2000 in Pennsylvania, for example, the execution of a
brain-damaged inmate, Joseph Miller, was stayed 48 hours before it was due
to be carried out after he allowed a federal appeal to be filed on his
behalf. He had earlier waived his appeals. He had reportedly first
indicated a desire to be executed after prison staff took away the crayons
he had used to draw pictures to send to his children. He had later
attempted suicide by overdose on anti-depressant medication. In December
2002, his death sentence was commuted to life imprisonment in the wake of
the US Supreme Courts decision in Atkins v. Virginia prohibiting the
execution of people with mental retardation.

The execution of people with serious mental illness remains to be
prohibited in the USA, and constitutional protections for this category of
defendants is minimal. Incompetence is a difficult burden to meet, whether
it is incompetence to waive legal counsel or appeals or incompetence for
execution.(40)

Indiana death row inmate Joseph Corcoran was set an execution date in July
2005 after waiving his appeals and being found competent to do so despite
his serious mental illness, including paranoid schizophrenia. Before the
execution was carried out, he changed his mind and took up his appeals. On
9 April 2007, a federal judge overturned his death sentence on the grounds
that his constitutional rights had been violated in 1999 when the
prosecutor offered to withdraw pursuit of the death penalty if Corcoran
waived his right to a jury trial. The federal judge concluded that Joseph
Corcoran should be re-sentenced, without the death penalty being an option
for re-sentencing.(41) The state indicated that it would appeal the
federal judge's ruling. At the time of writing, it remained to be seen if
the state would be successful in its bid to keep Corcoran on death row
and, if it were, whether Corcoran would in the future assist the
government in killing him.

Evidence of mental disorder is common among "volunteers". Stephen Vrabel,
for example, was executed in Ohio in July 2004 after waiving his appeals.
He had originally been found incompetent to stand trial because of his
severe mental illness, and was committed for 5 years to a maximum security
psychiatric hospital where he was forcibly medicated. Subsequently brought
to trial, he was sentenced to death after presenting no mitigating
evidence, and was executed after waiving his appeals.(42)

In Joseph Corcoran's case, at a hearing in 2003 to determine his
competency to waive his appeals, the state acknowledged that Corcoran
suffers from mental illness. The defence presented 3 experts  a forensic
psychiatrist, a clinical psychologist, and a neuro-psychologist  who had
each separately evaluated Corcoran and reviewed his records. All three
concluded that he was unable to make a rational decision to waive his
appeals. They stated that the symptoms of his schizophrenia included
recurrent delusions that the prison guards were torturing him through the
use of an ultrasound machine, and that he was saying things without
knowing and that this was causing people to be angry with him and mock
him. Such delusions, the experts concluded, were causing him to hasten his
execution in order to be relieved of his suffering. They were unanimous
that his thought processes could not be described as rational or logical
and that he was therefore incompetent to make the decision to drop his
appeals.

Joseph Corcoran himself testified at the hearing, saying that the reason
he wanted to waive his appeals was that he was guilty of murder, and "I
should be executed. That is all there is to it." He appeared to have a
good understanding of the legal status of his case, and that the result of
not pursuing his appeals would be execution. Yet at the same time, he was
suffering a delusional illness. In December 2003, the trial court ruled
that he was competent to waive his appeals, and this decision was upheld
by the Indiana Supreme Court in January 2005. One of the 5 Justices
dissented, agreeing with the view of the 3 mental health experts that
because of Corcorans delusions, his decision-making could not be described
as rational. Justice Rucker pointed out that according to the expert
testimony, far from faking his mental illness, Corcoran was trying to
downplay it, and that the more time one spent with him, the more "you
begin to understand how his thought process is a little bit skewed. And,
in fact, the deeper you go, the more skewed it appears. And you can begin
to understand how he might feel that execution might be preferable to life
as he currently experiences it." Justice Rucker agreed, stating that
although "Corcoran is a man of considerable intelligence and expressive
powersthe fact that he offers what otherwise might be considered a
rational explanation for his decision to die is itself intricately related
to his mental illness".

The determination of mental health is an inexact science. Establishing
whether a defendant is competent to waive his or her appeals will
inevitably, as in so many other areas of capital life-or-death
decision-making, result in errors and inconsistencies, at least on the
margins.

Judicial action in Bobby Wilchers case gave an added twist to the
inconsistencies of US capital justice. Wilchers mental illness and the
effect of prison life on it may have contributed to his decision to drop
his appeals in 2006. He suffered from bipolar disorder and spent 22 years
on death row in Mississippi. In recent years, conditions on Mississippi's
death row have been severely criticized, including in relation to the
psychological impact of these conditions and the poor mental health care
provided. In May 2003, a federal judge ruled that the conditions in the
State Penitentiary offended "contemporary concepts of decency, human
dignity and precepts of civilization which we profess to possess". Among
other things, he found that the filthy conditions impacted on the mental
health of inmates; the probability of heat-related illness was high for
death row inmates, particularly those suffering from mental illness who
either did not take appropriate steps to deal with the heat or whose
medications interfere with the human bodys temperature regulation; the
exposure to the severely psychotic individuals was intolerable; the mental
health care provided to inmates was "grossly inadequate"; and the
isolation of death row, combined with the conditions on it and the fact
that its population are awaiting execution, would weaken even the
strongest individual.

On 24 May 2006, Bobby Wilcher, who had shown suicidal tendencies even
before being subjected to such conditions of confinement, filed a motion
in court seeking to drop all his remaining appeals and to allow the state
to execute him. 6 weeks later, however, he contacted his lawyer and told
him that he had changed his mind and wished to pursue his appeals. On 10
July, the US Court of Appeals for the Fifth Circuit dismissed Wilcher's
request to reinstate his appeals and refused to stay the execution. In a
shocking opinion, the court stated that "this sudden about-face strikes us
as nothing more than an 11th-hour death row plea for mercy finally
elicited from Wilcher by Counsel; the accompanying affidavit states only a
conclusional flip-flop by Wilcher" Other Circuit Courts of Appeal have
reinstated appeals in such cases, including of inmates who have changed
their minds on numerous occasions on whether or not to drop their appeals.
In a case in 2000, the Seventh Circuit Court of Appeals stated that "not
only the defendant but society as a whole has a particularly strong
interest in the regularity of proceedings that are followed; there is no
un-doing a sentence of death once it is carried out". As the Nebraska
Supreme Court ruled on 2 May 2007 in Carey Moore's case, stopping his
execution despite the fact that he had dropped his appeals, "in deciding
whether to exercise our inherent power, we are mindful of the especial
concern that is a natural consequence of the knowledge that execution is
the most irremediable and unfathomable of penalties; that death is
different." In Bobby Wilcher's case, the courts refused to provide a
remedy, and he was executed on 18 October 2006.

Robert Comer  Execution scheduled for 22 May 2007, Arizona

50-year-old Robert Comer, who has been on death row for nearly 20 years,
has given up his appeals. Arizona has not carried out an execution since
November 2000. His would be the 5th execution of a "volunteer" in Arizona
out of a total of 23 executions in the state since 1977.

Robert Comer was convicted in 1988 of the 1st-degree murder of Larry
Pritchard, who was shot and stabbed on 3 February 1987 at a campsite in
Apache Lake, Arizona. Comer was also convicted on charges of kidnapping,
assault, and sexual assault in the case of 2 other campers, Jane Jones and
Richard Smith. Robert Comer's friend, Juneva Willis, who originally faced
the same charges as Comer, pleaded guilty to one count of kidnapping in
exchange for her testimony against him. The other charges against Willis
were dropped.

Robert Comer appeared in court briefly at the beginning of the guilt phase
of his trial. He then waived his presence for the rest of the proceedings.
After 7 days of evidence, a jury found him guilty on all counts. During
closing argument, the prosecutor repeatedly referred to him as a "monster"
and "filth", and also called him a "reincarnation of the devil", comparing
the crimes to a horror film. This demonization has continued post-trial.
In 2001, the prison authorities, who claimed that Robert Comer was the
most dangerous prisoner in its custody, contacted a local television
station with a view to broadcasting a story about the risks posed by death
row inmates, particularly Comer. A film crew was escorted through the
prison facility, correctional staff were interviewed, and Comer was filmed
without his consent. 2 segments about him were subsequently broadcast
which, according to a federal judge, described Comer "as Arizona's
Hannibal Lecter, a fictional cannibalistic serial killer".(43)

On the day of his sentencing in 1988, Robert Comer had barricaded himself
in his cell. Arizona law requires that the defendant be present for
sentencing, and for the court appearance he was forcibly extracted from
the cell, including reportedly being beaten with a fire hose. At the
sentencing Robert Comer was shackled to a wheelchair and, except for a
towel around his waist, he was naked. "His body was slumped to one side
and his head drooped toward his shoulder. He had visible abrasions on his
body. After asking both the court deputy and a prison psychiatrist whether
Comer was conscious, the state trial judge sentenced him to death."(44)

In 2006, 2 judges in a 3-judge panel of the US Court of Appeals for the
Ninth Circuit concluded that Comers treatment during sentencing "shocks
the conscience and warrants reversal of his sentence." They stated that:
"The appearance of this naked, bleeding, shackled man was a severe affront
to the dignity and decorum of the judicial proceedings. We have never
before read of a man being sentenced to death, or even presented to a
court, under such circumstances If the court's formal dignity is a
reflection of the importance of the matter at issue, then preservation of
that dignity is most important when deciding whether a man lives or dies.
The sentencing of Comer without such dignity or decorum is unacceptable

We cannot conceive of any reasonable justificationfor escorting a naked
and bleeding defendant into a courtroom for a capital sentencing hearing.
We hold that Comers due process rights were violated when he was sentenced
while shackled, nearly naked, bleeding, and exhausted When life and death
are at stake, subjective considerations such as the humanity and dignity
of a defendant will always influence the sentencing decision, whether it
is made by judge or jury Comer is entitled to a new sentencing
hearing".(45)

One of the 3 judges dissented from what she described as the majoritys
"raw imposition of judicial power". Comer, she said, had already given up
his appeals and had been found competent to do so. Judge Rymer stated that
the appeals court "had no right to reach the merits" of Comer's case. (46)
The case was taken by the full Ninth Circuit court, and in March 2007, the
court overturned the panel decision, upholding the District Court's ruling
that Comer was competent to waive his appeals (see below). Judge
Pregerson, who had been in the earlier panel majority, dissented from this
reversal by reprinting the 2006 opinion authored by Judge Ferguson, and
adding a photograph of Robert Comer at his 1988 sentencing (below). Judge
Pregerson added: "Nothing in this opinion requires the Arizona court to
conduct a new penalty phase. The due process violation occurred after the
guilt phase of the trial. The due process violation occurred after the
penalty phase of the trial. The due process violation occurred at the
sentencing hearing held by the Arizona trial judge who imposed the penalty
of death on a man who was naked, bleeding, shackled, exhausted and
semiconscious. Comer wants to die. Arizona wants to execute him. There is
little question that this will happen. Judge Ferguson's opinion only
requires that the sentence of death by pronounced to an understanding
human, not to a discarded piece of flesh".(47)

Robert Comer had exhausted his state-level appeals in 1994, and in 1997 a
District Court judge denied his 1st federal appeal. The case had then
moved to the Ninth Circuit. In 1998, Robert Comer wrote to the state
authorities that he no longer wanted to pursue his appeals. In 2000, the
Ninth Circuit remanded the case to the District Court for an evidentiary
hearing into the question of Comer's competence to waive his appeals,
pointing to his history of irrational behaviour and the possible impact of
his conditions of confinement on his decision. The court noted that "Comer
describes the conditions of confinement in nothing short of Orwellian
terms. He tells us that he is in 'sensory deprivation', has no access to
legal materials, is permitted nothing in his cell, and must walk
continuously for fear of becoming a 'veggie'." The Ninth Circuit noted its
"grave concerns that a mentally disabled man may be seeking this court's
assistance in ending his life".(48)

At the evidentiary hearing before District Judge Roslyn Silver, the
defence expert testified that in his opinion Comer was suffering from a
major depressive disorder, post-traumatic stress disorder, and SHU
(Segregated Housing Unit) syndrome. The judge reviewed Comer's past and
current conditions of confinement. Between 1979 and 1984, Comer had been
incarcerated in California, including in various SHUs for some two and a
half years. During this time, class action litigation had established that
conditions in these SHUs were appalling, with debilitating effects on the
physical and psychological health of the inmates. Prisoners were confined
often for 24 hours a day to small dirty cells, with minimal furnishing,
lacking adequate heating and ventilation, served by "antiquated and
inadequate plumbing", and infested by rodents and insects. Contact with
relatives and friends were denied or obstructed, and access to health care
was poor.

In the isolation unit at Folsom prison, for example, the unit was filled
day and night with "unrelenting, nerve-racking din", and "unceasing
racket" which exerted "a profound impact" on the inmates, contributing to
difficulty sleeping and affecting their mental health. In a 1987 letter,
Robert Comer recalled the following about confinement at Folsom: "I
remember the 4 walls. Grey walls. They always seemed to move in on you.
Always going to squish the life out of you. The one dingy hole in the
floor for shitting and pissing. It always smelled.... I remember in the
winter you would lay there and shake yourself to sleep. Summer it was so
hot you just wanted to die.... I remember.... feeling my mind shut down, 1
piece at a time.... I used to mess with the rats. I never could figure out
how they got in. At night they would crawl on you.... I used to talk to
the rats at first. After 4 months they talked back. You think your [sic]
going crazy, so you don't talk with the rats no more.... Your head plays a
song for you. Over and over and over and over and....After 6 or 7 months,
all your mind could say (was) fuck you."

As a result of the class action lawsuit, the court in question found
"abhorrent conditions" in the units, including a lack of basic hygiene,
lighting and heating. At Robert Comer's competency hearing, Judge Silver
found that it was "undisputed that Mr Comer endured most, if not all and
possibly worse, of these deplorable conditions" while he was confined in
the Californian facilities.

After Robert Comer's arrest in Arizona for capital murder, he was held in
pre-trial custody in Maricopa County Jail, where he was held in a single
cell for 24 hours a day. He reported an incident where he had asked a jail
officer to loosen his handcuffs, but the officer had responded by
tightening the handcuffs and raising Robert Comers hands behind his back.
It was the Maricopa County jail authorities who forcibly removed him from
his cell for the sentencing.

A few months after he was sent to death row, Robert Comer was placed in
administrative segregation for disciplinary infractions. He has been held
in Special Management Units (SMUs) ever since. Between 1989 and 1996 he
was held in SMU I and from 1996 in SMU II, both at the Eyman complex of
the State Prison in Florence, Arizona. Robert Comer reported that on one
occasion in SMU I, he was subjected to inverted 4-point restraint, in
which he was shackled, hands and feet, to a board and then inverted with
his feet above his head at about a 45 degree angle facing downward for
several hours.

Judge Silver noted that the physical layout of SMU I and SMU II "do not
materially differ". Two levels of cells "extend like spokes from an
elevated central control booth. At the end of each spoke, or pod, is an
outdoor recreation area measuring 12 feet by 20 feet with high concrete
walls and floors and cyclone [wire mesh] fencing over the top." According
to information received by Amnesty International, "SMU inmates live alone
in a cell measuring approximately 7 by 11  feet. They are isolated from
any substantial contact with other inmates, officers or any living thing.
The cells have no windows. Neither the door of the cell  nor the portion
of the cell facing the hallway  has any bars through which an inmate can
reach his hands. They can only see outside their cell through a metal grid
punctuated by small holes measuring  inch in diameter to a view of a gray
cement hallway wall. The other walls, floor and ceiling are uniform,
unpainted gray cement. They are not allowed to ornament their cell walls
in any fashion; there are no posters, pictures or graffiti on the walls.
The cells of the other inmates in the pod all face the same direction so
that none of the inmates can see each other from their cells... This
design of the unit and the cells creates an excruciatingly alienating and
isolating environment and, aside from brief periods in which inmates
recreate and shower alone in other concrete tombs, they spend every living
moment in these cells."

On the question of the prison conditions to which he had been subjected
over the years, Judge Silver found that it was "undisputed that Mr. Comer
was subjected to some physical brutality and abuse while incarcerated that
no human being should be made to endure for any length of time. The Court
has no difficulty concluding that this abuse would shock even a person
with hardened sensibilities; and that even a cold-eyed critic of any
disapproval of prison administration would agree that these forms of
corporal punishment ran afoul of the Eighth Amendment."

In addition, Judge Silver stated, "Undeniably, some people do not have the
mental health and the adaptive skills to tolerate segregated housing and
will immediately, or inevitably develop psychiatric illnesses when housed
in these units. Mr. Comer, however, has developed the means to cope with
the conditions, and he exercises the initiative to ensure that he
maintains his mental health while housed in them." She ruled that his
conditions of confinement had left him with no mental disorder and that
although "his conditions have had some effect on his decision, they have
not had a substantial effect nor have they rendered his decision
involuntary". She agreed with the court-appointed expert who "confirmed
that Mr. Comers decision was a mature one that has come from
introspection. She testified that he regrets what he did; he realizes that
he has hurt many people in his life; and he's made the decision that the
punishment awarded for the crime is just and he's ready to participate in
it."

Judge Silver revealed that she had "anguish[ed] over [her] decision" and
"ultimately over the question of whether any healthy person, choosing
between being and not being, could ever freely choose the terrifying
ignorance of what may follow death, over enduring the ordeal of life."
However, she stated that despite her "original hesitation to accept as
rational Mr. Comers chosen course, it is now clear to the Court that his
decision is a rational one." She emphasized that "what is most important
to Mr. Comer is that he has the opportunity to choose. He has made a
competent and free choice, which is merely an example of doing what you
want to do, embodied in the word liberty. He should be afforded that
choice".(49)

In Arizona, an inmate sentenced to death prior to 23 November 1992, can
make a further choice  whether to be killed by lethal gas or lethal
injection (inmates sentenced after that date are put to death by lethal
injection). On 17 April 2007, the Arizona Supreme Court set 22 May as
Robert Comers execution date. It duly stated that "Robert Comer shall have
the choice of either lethal injection or lethal gas". If he fails to
choose, "the penalty of death shall be inflicted by lethal injection."
(50) At the time of writing, Amnesty International did not know if Robert
Comer had made a choice of execution method.

The Arizona Department of Corrections describes the procedures for
carrying out an execution by gas as follows: "One (1) pound of
sodium-cyanide is placed in a container underneath the gas chamber chair.
The chair is made of perforated metal which allows the cyanide gas to pass
through and fill the chamber. A bowl below the gas chamber contains
sulfuric acid and distilled water. A lever is pulled and the
sodium-cyanide falls into the solution, releasing the gas. It takes the
prisoner several minutes to die. After the execution, the excess gas is
released through an exhaust pipe which extends about 50 feet above Death
House."(51)

In the case of Donald Harding, executed in Arizona's gas chamber in 1992,
death was not pronounced until 10 and a half minutes after the cyanide
tablets were dropped. During the execution, Harding reportedly struggled
violently against the restraining straps for some 6 1/2 minutes. In 1996,
the US Court of Appeals for the Ninth Circuit wrote of Californias use of
lethal gas as an execution method: "[A]n inmate probably remains conscious
anywhere from 15 seconds to one minute, and . . . there is a substantial
likelihood that consciousness, or a waxing and waning of consciousness,
persists for several additional minutes. During this time,... inmates
suffer intense, visceral pain, primarily as a result of lack of oxygen to
the cells. The experience of 'air hunger' is akin to the experience of a
major heart attack, or to being held under water. Other possible effects
of the cyanide gas include tetany, an exquisitely painful contraction of
the muscles, and painful build-up of lactic acid and adrenaline.
Cyanide-induced cellular suffocation causes anxiety, panic, terror, and
pain."(52)

The Arizona Department of Corrections describes its lethal injection
procedures as follows: "Inmates executed by lethal injection are brought
into the injection room a few minutes prior to the appointed time of
execution. He/she is then strapped to a Gurney-type bed and two (2) sets
of intravenous tubes are inserted  one (1) in each arm. The three (3)
drugs utilized include: Sodium Pentothal (a sedative intended to put the
inmate to sleep), Pavulon (stops breathing and paralyzes the muscular
system) and Potassium Chloride (causes the heart to stop). Death by lethal
injection is not painful and the inmate goes to sleep prior to the fatal
effects of the Pavulon and Potassium Chloride." (53)

Over the past several years, there have been ongoing legal challenges
concerning the constitutionality of lethal injections across the USA. The
claim has generally been that in this three-chemical combination used by
most states, if the sodium pentothal is ineffective for some reason, the
second drug pancuronium bromide (pavulon) would mask outward signs that
the inmate was conscious and in pain from the injection of the 2nd and 3rd
chemicals. In December 2006, for example, a federal district court judge,
after he had undertaken "a thorough review of every aspect" of Californias
lethal injection protocol, ruled that that states "implementation of
lethal injection is broken". Judge Jeremy Fogel had found evidence that in
6 of 13 executions carried out in California, the condemned man's
"breathing may not have ceased as expected". This and other evidence
raised concern that "inmates may have been conscious when they were
injected with pancuronium bromide and potassium chloride, drugs that the
parties agreed would cause an unconstitutional level of pain if injected
into a conscious person". Judge Fogel found "a number of criticial
deficiencies" in California's lethal injection procedures, including
inadequate training and supervision of the execution team, inconsistent
and unreliable record-keeping, poorly designed facilities and inadequate
working conditions.(54)M

While Judge Fogels decision caused a suspension in executions in
California while the executive responded to the findings, the responses of
different states and different courts to this issue has introduced another
level of arbitrariness into the US death penalty. In May 2006, for
example, five federal judges noted that: "The dysfunctional patchwork of
stays and executions going on in this country further undermines the
various states' effectiveness and ability to properly carry out death
sentences. We are currently operating under a system wherein condemned
inmates are bringing nearly identical challenges to the lethal injection
procedure. In some instances stays are granted, while in others they are
not and the defendants are executed, with no principled distinction to
justify such a result."(55) A federal judge in Ohio subsequently noted
that the lack of rationale for denying or granting stays of execution on
the lethal injection issue "does not promote confidence in the system,
does not promote consistency in court decisions, and does not promote the
fundamental value of fairness that underlies any conception of
justice."(56)

"As a practical matter", Judge Fogel wrote in the California case, "there
is no way for a court to address Eighth Amendment issues in the capital
context other than in a case raised by a death-row inmate".(57) The
phenomenon of "volunteers"  refusing to challenge potentially
unconstitutional execution procedures  can only add to this inconsistent
patchwork of official responses to this issue, in the absence of action by
legislative or executive authorities to halt all executions.

Christopher Newton  Execution scheduled for 23 May 2007, Ohio

Christopher Newton, aged 37, is due to become the 26th prisoner to be
executed in Ohio since judicial killing resumed there in February 1999. He
would be the seventh of them to be put to death after waiving their
appeals. 30 years ago, George F. Solomon wrote:

"The close linking of suicide and murder is seen in the mechanism of
seeking to be killed, to be punished for ones own transgressions,
particularly for one's murderous feelings [M]any criminals leave clues,
need to confess, and seek punishment [M]urder can be committed either
consciously or unconsciously in order to be killed by the state".(58)

4 decades ago, already in prison for a crime he said he committed in order
to be sentenced to death, but unable to summon up the courage to commit
suicide, James French murdered his cell mate. He asked for a death
sentence and this time received one. He was executed in Oklahoma on 10
August 1966. 3 decades later, Robert Smith, serving a life prison term in
Indiana, stabbed a fellow prisoner to death. He fired his lawyers, refused
a plea agreement of 50 years imprisonment and threatened to kill again
unless he was given the death penalty. He was executed in 1998 after
refusing to appeal, thereby achieving his stated aim of not growing old in
prison.

Christopher Newton, from a troubled family background of dysfunction and
abuse, came into conflict with the law from a young age. Then, between the
ages of 13 and 15, he attended a school for children with severe
behavioural or emotional problems. A clinical psychologist who assessed
him after has described his childhood as "disruptive, chaotic, abusive,
and identity-damaging". He has a history of suicide attempts and
self-mutilation.

In 1999, already in prison on a burglary conviction, Christopher Newton
told a mental health professional that he was going to kill an inmate so
that he could spend the rest of his life in prison. In 2001, he killed his
cell mate Jason Brewer. He called a guard to the cell, Newton reportedly
told him that he knew that he would die in prison and that he hoped to be
sentenced to death. In 2002, one year on from the murder, a prison
psychiatrist reported that Christopher Newton had made a party hat to
celebrate the anniversary of the crime, and that he appeared happy. The
following month, Newton was transferred to another unit due to concerns
that he was suicidal.

At Christopher Newton's murder trial in 2003, he pleaded guilty and
presented no evidence. He waived his appeals, and did not seek clemency.
Indeed, he stated that if his sentence was commuted to life, he would
"kill again". The parole board unanimously voted for execution. In a
recent interview from death row, Christopher Newton stated "I'm for the
death penalty". He recalled that he had refused to cooperate with
authorities investigating his case unless they made clear to "the
prosecutor that I want the death penalty". He said: "You don't want to
spend your life in a hell hole. Nothing against the prison system, but
it's not the funnest [sic] place to be".(59)

As history repeats itself, as it does with tragic regularity in death
penalty cases, state officials must begin to question what sense there is
in diverting huge resources to a policy that offers no measurable
benefits.

Elijah Page  Execution scheduled for the week of 9 July, South Dakota

Elijah Page was sentenced to death in 2001 for the kidnapping, torture and
murder of 19-year-old Chester Allan Poage in 2000. South Dakota has not
carried out an execution for 60 years.

Chester Poage was killed on 13 March 2000 near the town of Spearfish in
the rural west of South Dakota. His body was found a month later, and
after an autopsy it was determined that he had died of stab wounds and
blunt force injury to the head. 3 young men were charged in his murder:
Darrell Hoadley, Briley Piper and Elijah Page, who were 20, 19 and 18
years old respectively at the time of the crime.

The three were tried separately. Briley Piper pleaded guilty, waiving his
right to trial and sentencing by jury, and was sentenced to death by a
judge on 19 January 2001. Elijah Page did the same and was condemned to
death by the same judge on 16 February 2001. Darrell Hoadley pleaded not
guilty and was tried by jury. The jurors found him guilty of the same
crime with the same aggravating factors (factors making the crime eligible
for the death penalty) as had been found in the cases of Elijah Page and
Briley Piper. The jury was split on the question of punishment and Darrell
Hoadley was sentenced to life imprisonment without the possibility of
parole in May 2001.

In January 2006, the state Supreme Court upheld Elijah Pages death
sentence. 2 of the 5 Justices dissented (as they also did in Piper's
case), stating: "Based primarily on untested, un-cross-examined and
self-serving statements by Hoadley, Piper and Page, the circuit court and
the majority opinion comes to the conclusion that Piper and Page were more
culpable and less remorseful than Hoadley, and therefore more deserving of
death. In a stunning reversal from its argument in the Hoadley case, the
State now argues that Hoadley is less culpable in this horrendous crime
than Piper and Page In fact, the State charged Hoadley, Piper and Page
with identical acts, conduct and charges, all resulting in identical
convictions. The same aggravating factors were alleged and found against
all 3 There are no meaningful differences to justify life for Hoadley and
death for Piper and Page." The dissenting Justices concluded that all
three "should receive life in prison without the possibility of parole for
their substantially identical acts of murder".

Like many on death row in the USA, Elijah Page's childhood was one of
deprivation and abuse. According to reports, from when he was 2 years old
living with his siblings and his drug-addicted mother in abandoned
buildings in Kansas City, Missouri, his mother would allow people to
sexually molest him in exchange for drugs. When he was about seven years
old, his mother lost custody of the children because of the abuse,
violence and deprivation to which they were being exposed. The state
placed the children in the care of their stepfather, but the abuse and
deprivation persisted. Taken into state care again when he was about 13,
for the following year Page lived in more than a dozen foster homes and
ran away on numerous occasions. By the age of 14 or 15, psychiatric
assessments recorded that he was displaying aggressive and anti-social
behaviour. By the time he drifted to South Dakota in 1999 at the age of
17, he had a history of time spent in juvenile detention facilities,
including as a result of burglaries and car thefts. Sentencing him to
death for the murder committed in 2000 at the age of 18, the judge
acknowledged to Elijah Page that "your early years must have been a living
hell. Most people treat their pets better than your parents treated their
kids".

With the subject of the treatment of pets in mind, it should be noted that
a recent study on lethal injection procedures in the USA found that "the
methods for euthanizing animals require substantially more medical
consultation and concern for humaneness that the techniques used to
execute human beings".(60) A federal judge also recently noted in a
Tennessee case that "monitoring consciousness is a regular part of the
standard of care in many states for euthanizing dogs and cats", but not in
the executions of human prisoners. He also noted that the state "protects
dogs and cats from the risk of excruciating pain in execution, but not
death row inmates".(61) In addition a recent medical study on the subject
of lethal injection in the USA notes the following:

"In the United States and Europe, techniques of animal euthanasia for
clinical, laboratory, and agricultural applications are rigorously
evaluated and governed by professional, institutional, and regulatory
oversight. In university and laboratory settings, local oversight bodies
known as Animal Care and Use Committees typically follow the American
Veterinary Medical Associations guidelines on euthanasia, which consider
all aspects of euthanasia methods, including drugs, tools, and expertise
of personnel in order to minimize pain and distress to the animal. Under
those guidelines, lethal injections of companion or laboratory animals are
limited to injection by qualified personnel of certain clinically tested,
Food and Drug Administrationapproved anesthetics or euthanasics, while
monitoring for awareness.

In stark contrast to animal euthanasia, lethal injection for judicial
execution was designed and implemented with no clinical or basic research
whatsoever. To our knowledge, no ethical or oversight groups have ever
evaluated the protocols and outcomes in lethal injection."(62)

As already noted above, legal challenges to lethal injection protocols in
various states around the USA are continuing, arguing that this execution
method does not guarantee the "humane" killing its proponents claim for
it. About four hours before Elijah Page was due to be put to death on 29
August 2006, Governor Mike Rounds of South Dakota ordered a stay of
execution until after 1 July 2007 on the grounds that there was a
discrepancy between the states law on lethal injection and the method that
was about to be used to kill Elijah Page. State law, last revised in 1984,
required that 2 chemicals be used to execute the prisoner  "a lethal
quantity of ultra-short-acting barbiturate and a chemical paralytic
agent". However, the state correctional department's lethal injection
policy involved a third chemical, potassium chloride, as used in most
states in the USA.

On 23 February 2007, Governor Rounds signed into law a bill passed by the
state legislature, under which the law becomes more general rather than
more specific, under which the legislature "delegates nearly all power,
giving the warden considerable control", and under which the state
"retreated into greater secrecy, illustrating the tendency for states to
withhold when constitutional challenges appear threatening."(63) The new
law provides that:

"The punishment of death shall be inflicted within the walls of some
building at the state penitentiary. The punishment of death shall be
inflicted by the intravenous injection of a substance or substances in a
lethal quantity. The warden, subject to the approval of the secretary of
corrections, shall determine the substances and the quantity of substances
used for the punishment of death. An execution carried out by intravenous
injection shall be performed by a person trained to administer the
injection who is selected by the warden and approved by the secretary of
corrections. The person administering the intravenous injection need not
be a physician, registered nurse, licensed practical nurse, or other
medical professional licensed or registered under the laws of this or any
other state. Any infliction of the punishment of death by intravenous
injection of a substance or substances in the manner required by this
section may not be construed to be the practice of medicine. Any
pharmacist or pharmaceutical supplier is authorized to dispense the
substance or substances used to inflict the punishment of death to the
warden without prescription, for carrying out the provisions of this
section, notwithstanding any other provision of law."

This becomes law on 1 July 2007. The following week, Elijah Page is due to
become the first person killed under it, and the first person executed in
South Dakota since George Stitts was put to death in the electric chair on
8 April 1947. In the intervening 60 years, more than 100 countries have
abolished the death penalty in law or practice.

In 1969, the last time South Dakota was preparing to execute a prisoner,
Thomas Whitehawk, then Governor Frank Farrar commuted his death sentence
to life imprisonment. Governor Rounds should do the same thing today, and
prevent his state from taking the backward step of resuming executions.
This would be consistent with his 2nd inaugural address of 6 January 2007,
when he said that "Our obligation is to make this state, this country and
our world a better place".

Daryl Holton  Tennessee, execution date requested by state Attorney
General

Daryl Keith Holton, aged 45, was sentenced to death in Tennessee in 1999
for the murder of his 2 young sons and their half-sister in 1997. He has
effectively waived his appeals, although he has characterized his approach
as one of "selective procedural default". On 4 May 2007, the state
Attorney General requested that the Tennessee Supreme Court set an
execution date.

On 30 November 1997, Daryl Holton walked into a police station in
Shelbyville, Tennessee, to report a "homicide times four". There were no
police officers present at the time, so the dispatcher radioed for
assistance. Holton duly waited, and when a police officer arrived, told
him that he had shot and killed his four children. Daryl Holton
spontaneously placed his hands behind his back so that the officer could
handcuff him and continued to relate to the officer, without being
questioned, the details of his crime. He said that he had shot the
children in his uncle's car repair garage with a semi-automatic rifle. The
police went to the garage and found the bodies of Stephen Edward Holton
(12), Brent Holton (10), Eric Holton (6) and Kayla Marie Holton (4). Daryl
Holton said that he had considered committing suicide after the shooting,
but decided to go to the police instead. His reasoning was that if people
were to understand what had happened, "then you're going to have to talk
to somebody that was involved. I am the only on that was involved that is
still living. I am going to tell you the truth". In the first week of his
pre-trial custody, he was put on suicide watch.

At his trial, the defendant's ex-wife and mother of the 4 children,
testified that she and Holton had met in 1984 when he was stationed with
the US army in South Carolina. He had joined the army in 1981 at the age
of 19. He was subsequently transferred to Germany, then back to the USA
(Georgia). He served in the 1st Gulf War after which he volunteered for
service in Saudi Arabia while his family stayed in Georgia. Soon after the
birth of the couple's 3rd child in 1991, Ms Holton's care of the children
came to the attention of the Georgia police and social services. Daryl
Holton took an emergency leave of absence and returned to the USA. He
moved the family to his fathers home in Shelbyville. After he returned to
Saudi Arabia, his wife moved to South Carolina, leaving the children in
the care of her father-in-law. According to a later social services case
report, "according to Mr Holton, not only has [his ex-wife] abandoned the
children in 1992, but that [her] own mother apparently abandoned her as a
child".

Daryl Holton returned from the Middle East, the couple divorced, and he
took custody of the children. He obtained an honourable discharge from the
army in order to be with his children, and moved with them to Tennessee.
He took them to visit their mother in South Carolina 2 to 3 times each
month. In 1993, his ex-wife gave birth to a 4th child, Kayla Marie, by
another man. She testified that he took to the news of the pregnancy
"rather well" and he suggested that the new child take the Holton name.
During the pregnancy she and Daryl began living together again in
Shelbyville, and lived together for the next 2 years with the 4 children.

At the trial, Ms Holton said that she drank heavily during this period,
and that he became violent towards her in response to her drinking. She
and the children eventually moved out of the home. A court granted him
visitation rights at weekends. She testified that her ex-husband was
concerned about the crime rate in the neighbourhood in which she and the
children were living, and about the condition of their home. She continued
to drink heavily. One night in 1995, when Daryl Holton was returning the
children home at the end of a weekend, he refused to allow them to get out
of his car. He demanded that she join them in the vehicle. She refused and
informed the police. He handed the children over to the police. After the
murders 2 years later, he would tell the police that he had considered
killing his children on that occasion but "couldnt do it". A social
services assessment of Daryl Holton in 1995 noted his "fear of losing his
relationship with his children", documenting his responses such as "the
happiest time is spent with my children"; "my nerves are numb after 1
month without my children"; and "my mind is on hold until my children
return".

Daryl Holtons visits with the children continued until the late summer
1997 at which point his former wife obtained a protective order against
her ex-husband, and moved to a different address. Daryl Holton did not see
the children again until 30 November 1997. His visit with the children on
that day had been arranged after his ex-wife had contacted him two days
earlier. He recalled that the children "all came up and hugged me", and
that he took them to a McDonald's restaurant and an amusement arcade
before driving them to his uncle's garage. He told the police that "we
just told each other we missed each other". At the garage, he said that he
left the 2 youngest children playing while he took the 2 older boys to the
rear where he told them, with the promise of a surprise, to stand one
behind the other with their backs to him. This, he told the police, was in
order to be able to shoot them both through the heart with a single shot.
He said that he followed up with multiples shots to ensure that they were
dead. He then repeated this with the 2 younger children. The autopsies
supported his version of events. Daryl Holton told the police that "the
kids had been taken away from me and given back to me, taken away from me
and given back to me enough".

At the conviction phase of his trial, 3 mental health experts  2 presented
by the defence and one by the prosecution  all agreed that Daryl Holton
was suffering from a major depressive disorder at the time he killed the
children. Evidence was also presented, although disputed, that "acute and
chronic" carbon monoxide poisoning  from a propane heater in his uncle's
garage where he had been working and sleeping  may have had an
exacerbating effect on his depression.

One of the defence experts, a psychiatrist, testified that filicide is
closely associated with the occurrence of major depression, and in such
cases the parent is "on the sickest end of the spectrum. They have very
severe major depression. It is often one with psychotic features [where]
the individuals grasp of reality is severely lackingThis is a severe
illness. About 20 % of these people will kill themselves". He stated that
the "paradox is that these individuals get so depressed that they can't
see their life is worth living and they also see the same thing for their
loved onesThey actually get delusionalThese people will often feel a
considerable sense of relief actually when their children are dead instead
of having the usual and expected reaction They actually feel better than
they had while they were worrying about their kids". A 1998 medical report
from when Daryl Holton was in pre-trial custody noted that Holton was
"surprised that he is not experiencing any grief He states that he dreams
about his children and what they used to do, mainly pleasant dreams".(64)

The defence psychiatrist also testified that Daryl Holton had a family
history of suicide, and the defendant himself had experienced several
previous episodes of major depression, dating back to high school and
continuing through his military career. A month before the crime, Daryl
Holton had expressed a desire to commit suicide.

In similar vein, the prosecution's mental health expert stated that "my
bottom line is this: I believe that Mr Holton at the time of this crime
suffered from major depression". He agreed "absolutely" that severe
depression can "affect one's judgment and thought processes" and cause
delusions. The state expert's report noted Holton's history of depression
and other mental health problems. For example, Holton presented at a
Veterans Hospital in July 1994 with symptoms of anxiety and depression,
and suicidal thoughts. A psychologist who examined him at that time
suggested that he had symptoms of Post Traumatic Stress Disorder. In
August 1994, he was diagnosed at the Veterans Hospital with severe
depression. In 1995, he was again seen at the hospital, complaining that
he had suffered headaches since returning from the Gulf.

The state's expert concluded that despite his illness, Daryl Holton could
tell right from wrong at the time of the crime. After 50 minutes of
deliberation, the jury rejected the defence of not guilty by reason of
insanity and convicted Daryl Holton on 4 counts of 1st-degree premeditated
murder. The trial immediately moved into a sentencing stage. Against the
advice of his lawyers, Daryl Holton decided to largely forego the
presentation of mitigating evidence at the sentencing phase, except
testimony that he was a cooperative inmate in the local jail who received
visits from relatives. The jury voted that he should be executed.

There has been a degree of dispute about whether Daryl Holton intended to
waive the entirety of his appeals after the Tennessee Supreme Court
affirmed his convictions and death sentence in 2004. In any event, the
effect has been that he has waived his appeals, and he has been found
competent to do so.

In April 2005, the defence lawyers filed an appeal in state court, signed
by them but not by Holton, adding in an affidavit that he had refused to
meet with them. The lawyers raised concerns about Holton's mental
competency, and claimed that he was "quite possibly operating under
suicidal motivations". The lawyers requested a competency hearing. The
trial-level court granted a stay of execution, ordered Holton to meet with
his lawyers and a court-appointed mental health expert, and allowed
additional time for the filing of "a completed post-conviction petition".
The state appealed, and in May 2006 the Tennessee Supreme Court found that
the trial-level court had lacked the authority to consider the petition
filed on behalf of Daryl Holton because he had not signed it and the
lawyers had failed to establish a "next friend" basis on which to proceed.
It also found that the petition had been filed too late.(65)

The state requested that the Tennessee Supreme Court set a new execution
date, and on 15 May 2006, Daryl Holton himself filed a response stating
that he "does not oppose the State's motion to reset an execution date".
Execution was set for 19 September 2006.

Meanwhile, Holton's lawyers petitioned the federal courts on his case, and
raised questions about his competency. They provided an affidavit from
another attorney who had met with Holton on numerous occasions between 16
May and 28 August 2005. She stated:

"During my many visits with Mr Holton, he has not articulated a rational
understanding of his legal position and his available options. In fact, he
has exhibited an irrational understanding of key legal issues relevant to
his case  what are valid constitutional claims available to him, what
procedural bars may apply, and what potential remedies are available.
Despite repeated efforts, I have been unable to get him to engage in a
rational conversation about his legal options."(66)

In another affidavit, the psychiatrist who had testified at the trial
suggested that Holton's major depression had likely recurred and that "any
decision to volunteer for execution would fit the depressive pattern of
thinking characteristic with [this illness]".(67) A3ird affidavit was
provided by a psychiatrist who had recently interviewed Daryl Holton and
reviewed his records. He formed a "preliminary opinion that Mr Holton
suffers from complex Post Traumatic Stress Disorder and Depression", and
concluded that there was reasonable cause to doubt that the prisoner was
competent to waive his appeals. He further stated that "Mr Holton's
obsessive qualities and military training have the potential to create an
emotional strait jacket as well. His academic prowess should not be
confused with rationality, particularly when the potential for severe
mental illness, the disruption of his mood, is the issue, rather than his
cognitive abilities.(68)

The state sought to dismiss the petition filed by the lawyers, and Daryl
Holton stated that he had not authorized the petition and did not wish to
proceed with it. The federal District Court appointed a psychologist to
evaluate Holton's competence to waive his appeals. Questioned at a hearing
on 31 July 2006, Daryl Holton said that "I'm satisfied with the finding of
the state court's jury and the sentence of death. I believe that the death
sentence is appropriate for the crime which I was convicted [sic]. I just
dont have a problem with it. We could continue in the court or judicial
process for a number of years and still arrive at the same result". On 5
September 2006, the court-appointed psychologist testified that, in his
opinion, Daryl Holton was "fully rational" and "especially informed of his
legal options". He further stated that Holton was "not overborne by guilt,
delusion, or irrational thinking. He is not a 'death row volunteer'. His
adjustment to death row has been as good as one could expect". The
psychologist also stated that Daryl Holton "described himself as not being
depressed, but being frustrated at times by what he called do-gooders who
are  this is in his words, but impinging would be my word, on what he
describes as, you know, his autonomy and right to, in his words, be the
captain of his own ship". The District Court judge ruled that there was no
reasonable cause to believe that the prisoner was incompetent and so there
was no reason to have a full competency hearing. He dismissed the petition
filed by the lawyers as unauthorized.

The day before his execution, the US Court of Appeals for the Sixth
Circuit issued a stay. It stated that this was an "appropriate" course of
action, because an appeal written by Daryl Holton himself had just been
filed in the US Supreme Court, seeking a stay of execution and raising a
claim of ineffective trial and appellate counsel. In his petition, Daryl
Holton said that he did not oppose the death penalty for crimes such as
those of which he had been convicted, but that if his claims of his
"unconstitutional convictions" were successful, it was his "understanding"
that "the resulting death sentences must also be set aside".(69) In its
response to Holton's petition, the state  supportive of the prisoner's
views when he was waiving appeals, but opposing him when he was apparently
seeking to stop his execution  filed a brief in the Supreme Court seeking
dismissal of Holtons appeal on the grounds that it had been filed too late
and was procedurally defaulted because his claims had not been raised in
state court. The Supreme Court, without comment, refused to lift the Sixth
Circuits stay of execution.

In its order issuing the stay, the Sixth Circuit had instructed Daryl
Holton to inform it personally whether he intended to pursue his appeal,
and if so, whether he intended to do that himself or through his lawyers.
Holton responded in a handwritten letter to the court, dated 21 September
2006, that he could not "at this time, in good faith" pursue the appeal
filed by his lawyers as it challenged his own competency to waive federal
review of the claims they were raising.

The state appealed to the Sixth Circuit to affirm the District Courts
ruling dismissing the lawyers original petition that had not been
authorized by Holton, and arguing that "Holtons every word and deed
demonstrate his competence. And because his is competent, there can be
only one outcome: the petition must be dismissed since the district courts
habeas jurisdiction was never properly invoked. This is so even if Holton
were to express a change of heart at this stage. If the petition was not
properly filed, it cannot be made so after the fact."(70)

On 9 January 2007, the Sixth Circuit affirmed the District Courts
dismissal of the lawyer-filed petition. The state moved to have a new
execution date set, and on 22 January, Daryl Holton wrote to the Tennessee
Supreme Court in which he "acknowledges the States difficulty and notes
the delay caused by the extraneous, elective filings of third parties". In
his response, Daryl Holton stated that his position had been one of
"consistent, calculated, deliberate, and selective procedural default
rather than one of wholesale waiver [of appeals]". He ended by stating
that he did not oppose the states motion to reset an execution date. The
following week, the Tennessee Supreme Court set 28 February 2007 as the
date on which Holton would be killed.

Condemned prisoners convicted in Tennessee of crimes committed before 1999
can choose between lethal injection and the electric chair. Daryl Holton
chose the latter.

On 1 February 2007, Tennessee's Governor, Phil Bredesen, issued a
statement noting that the state authorities had "identified deficiencies
with our written [execution] procedures that raise concerns that they are
not adequate to preclude mistakes". In order "to ensure that no cloud
hangs over the states actions in the future", he said, he issued an
executive order suspending executions while the Department of Correction
conducted a "comprehensive review" of Tennessee's execution procedures.
Daryl Holtons execution was 1 of 4 stayed.

On 30 April, the Governor announced that the review had been completed and
that the moratorium on executions would expire on 2 May. On 4 May, the
Attorney General asked the Tennessee Supreme Court to set a new execution
date for Daryl Holton, and on 14 May 2007 his handwritten response was
filed in the Court stating that he "does not oppose the state's latest
motion to reset an execution date". At the time of writing, a new date had
not been set, and it was not known if Holton would adhere to his choice of
death by electrocution.

The Department of Correction's report states that in the case of
executions in Tennessees electric chair, which has not been used since
William Tines was put to death on 7 November 1960, "electrocution
equipment should be set to render 1750 volts at 7 amps, cycled on for 20
seconds, and on for an additional 15 seconds". The report states that the
Department has tested the electrocution system "at least quarterly and has
conducted regular maintenance as required".(71)

Carey Moore  Nebraska, execution stayed

Carey Dean Moore, due to be executed on 8 May 2007, had his execution
blocked by the Nebraska Supreme Court on 2 May on the grounds of concerns
about the constitutionality of the electric chair. Moore was sentenced to
death in 1980 for the murder of 2 men in Omaha in August 1979. Carey Moore
was aged 21 at the time of the crimes. He is now 49. He had given up his
appeals. Nebraska has not carried out an execution for 10 years.

Carey Moore was convicted of killing taxi drivers Reuel Eugene Van Ness
and Maynard Helgeland, both aged 47, after having called their cabs out to
remote locations. His death sentence was overturned in 1990 by the US
Court of Appeals for the Eighth Circuit on the grounds that one of the
aggravating factors making the crime punishable by death  namely that it
had shown "exceptional depravity"  was unconstitutionally vague. The case
was subsequently remanded for re-sentencing. Despite a request by the
state to redefine what was meant by "exceptional depravity", the Nebraska
Supreme Court declined to do so. At the 1995 re-sentencing, the trial
court therefore constructed its own definition of the term, under which a
number of factors would be considered. This included whether there was
"cold, calculated planning of the victim's death as exemplified by the
purposeful selection of a particular victim on the basis of special
characteristics", including age. Because of evidence that Carey Moore had
deliberately picked victims who were older than him, the 3-judge panel
decided that this constituted "exceptional depravity" and sentenced him to
death.

In 2003, this issue split the Eighth Circuit. Seven judges upheld the
death sentence, while 6 dissented. Noting that "Moore was truly without
prior notice that age would become part of the exceptional depravity
calculus", the 6 dissenters argued that the re-sentencing courts "post hoc
application of its newly-defined 'exceptional depravity' aggravator", had
"left Moore in the unenviable position of trying to argue for his life
without any idea of what would guide the panel's decision". Sentencing
under such circumstances, they argued, "denies defendants due process in
the most basic sense, for they have no prior notice of the law to be used
against them". 4 of the judges also added that "throughout the entirety of
this case, one thing has remained static: neither the Nebraska Legislature
nor the Nebraska Supreme Court has fashioned a death penalty sentencing
scheme that provides the sentencing body with a cogent, meaningful basis
for distinguishing the few cases in which the death penalty is imposed
from the many cases in which it is not".

Carey Moore has been facing execution for more than a quarter of a
century. The US Supreme Court has not ruled on whether prolonged
confinement on death row violates the US Constitution, but individual
Justices have raised concerns. In 1995, Justice Stevens wrote that
executing a prisoner who had been on death row for 17 years arguably
negated any deterrent or retributive justification for the punishment,
supposedly the 2 main social purposes of the death penalty. If these goals
no longer existed, he suggested, the outcome would be "patently excessive
and cruel". In 1999, Justice Breyer expressed concern in Carey Moore's
case (and the case of an inmate on Floridas death row for 24 years) at the
"astonishingly long delays flowing in significant part from
constitutionally defective death penalty procedures". He suggested that
"where a delay, measured in decades, reflects the State's own failure to
comply with the Constitutions demands, the claim that time has rendered
the execution inhuman is a particularly strong one." In 2002, in the case
of a Florida inmate on death row for about 27 years, Justice Breyer stated
that if executed, the prisoner would have been "punished both by death and
also by more than a generation spent in death row's twilight. It is fairly
asked whether such punishment is both unusual and cruel."

Nebraska is the only state in the USA which retains the electric chair as
its sole method of execution. The state changed its method of
electrocution in 2004 from a 4-shock technique to a single 15-second shock
of 2,450 volts. In April 2007, the Corrections Department revealed that
the protocol had been changed again, to require a 20-second jolt of
electricity. Under the new rules, there is a wait of 15 minutes before
checking that the condemned inmate is dead. On 30 April, Nebraska Senator
Ernie Chambers asked the state Supreme Court to suspend executions until
it can review the execution protocol. In his letter to the Court, the
Senator wrote:

"This is a such a serious issue and this execution protocol is shrouded in
so much confusion and uncertainty  and so likely, in my view, to result in
a 'botched' execution  that this court must satisfy itself there is not
going to be a shameful fiasco on May 8, of such proportion and notoriety
as to engage the critical attention of CNN and the world."(72)

On 2 May 2007, the Nebraska Supreme Court blocked the execution. By four
votes to three, it said that "on its own motion", it had reconsidered its
order to issue a death warrant for Carey Moore. It had concluded that it
had "acted prematurely" in ordering a death warrant before resolving the
question of the constitutionality of the use of the electric chair,
scheduled to be brought before the Court in another case in September
2007. The Court pointed out that "were we to conclude that electrocution
is no longer constitutional, then we would have undeniably permitted a
cruel and unusual punishment only a few months earlier. The damage to
Moore, and to the integrity of the judicial process, would be irreparable
The purpose of a stay is to prevent a state from doing an act which is
challenged and may be declared unlawful in a pending proceeding."

The Chief Justice of the Court was one of the judges who dissented from
the order. He denounced the decision to issue a stay in the absence of a
request from the condemned man. He stated that "we know of no case in
which a court suspended a states executions [without] a request for
reliefby the condemned person". However, adopting a philosophy that should
be applied to all cases of "volunteers", the narrow majority held that
despite the fact that Moore had waived his appeals, "we are nonetheless
required to ensure the integrity of death sentences in Nebraska Although
we respect the defendant's autonomy, the solemn business of executing a
human being cannot be subordinated to the caprice of the accused. We must
adhere to our heightened obligation to ensure the lawful and
constitutional administration of the death penalty, regardless of the
wishes of the defendant in any one case".(73)

Conclusion: The punishment, not the prisoner, is the problem

Issuing its order in Carey Moores case, the Nebraska Supreme Court
suggested that "it is a natural reaction for some to wish to be rid of an
admitted murderer who asks to be executed". Certainly, demonization goes
hand in hand with a dehumanizing punishment. Just as torture involves the
severing of bonds of human sympathy between the torturer and the tortured,
so too those who are condemned must be separated from the rest of humanity
to make their killing by the state tolerable to society. It is easier to
torture or kill the dehumanized other. For the prosecutor seeking Robert
Comers execution, the defendant was a "monster" and a "reincarnation of
the devil". For the aunt of Christopher Newtons victim, the condemned man
should be denied clemency because he is a "dark and evil man".(74) This is
a sentiment commonly heard in capital cases, as prosecutors, politicians
and others seek to justify resort to state killing. The anger and pain of
relatives of murder victims is understandable. The absence of human rights
leadership from politicians and prosecutors is regrettable.

Those on death row are not monsters, but human beings convicted of violent
crimes which have caused immense suffering. Far from providing any
constructive insight into the human propensity for violence, however, the
state's policy of symbolic extermination merely yields to the same
propensity. The cases of those defendants and prisoners who "volunteer"
for the death penalty further highlight the cruel purposelessness of this
anachronistic punishment, and add further arbitrariness to its
application.

When defendants seek death at their trials by preventing the presentation
of mitigating evidence on their behalf, they are in effect being allowed
to defeat the constitutional requirement for individualized sentencing in
capital cases. Indecency is added to arbitrariness when people with
serious mental health problems are sentenced and put to death, whether or
not they waived their right to mitigation or their appeals. Even in cases
where prisoners are found to have made a "rational" choice in
"volunteering" for execution after years on death row, the coercive nature
of the death penalty should not be ignored. The tragic irony is that a
system that provides for execution is hardly likely to recognize that a
condemned prisoner may end up believing that there is no other way for him
or her to achieve a sense of autonomy, even dignity, than to side with the
state in its pursuit of a punishment which, per se, offends commonly held
notions of human dignity.(75)

In the end, the problem lies not in the inmates request per se, but in the
punishment sought, obtained and carried out by the state. "The cause of
justice has championed over wrong", the Mississippi Commissioner of
Corrections announced after Bobby Wilcher was executed on 18 October 2006
after the courts refused to reinstate his appeals. From Amnesty
International's perspective, the commissioner and other proponents of the
death penalty have the wrong view of justice.

To end the death penalty is to abandon a destructive, diversionary and
divisive public policy that is not consistent with widely held values. It
not only runs the risk of irrevocable error, it is also costly  to the
public purse, as well as in social and psychological terms. It has not
been shown to have a special deterrent effect. It tends to be applied
discriminatorily on grounds of race and class. It denies the possibility
of reconciliation and rehabilitation. It promotes simplistic responses to
complex human problems, rather than pursuing explanations that could
inform positive strategies. It prolongs the suffering of the murder
victim's family, and extends that suffering to the loved ones of the
condemned prisoner. It diverts resources that could be better used to work
against violent crime and assist those affected by it. It is a symptom of
a culture of violence, not a solution to it.

Defendants and prisoners should not have the option of asking for
execution, because the state should not have the option of imposing the
death penalty at all.

*****

Executions in the USA, 17 January 1977  17 May 2007

Jurisdiction Total executions 'Volunteers' % 'consensual'

* Connecticut 1 1 100%

* Idaho 1 1 100%

* New Mexico 1 1 100%

* Oregon 2 2 100%

* Pennsylvania 3 3 100%

* Nevada 12 11 92%

* Washington 4 3 75%

* Utah 6 4 67%

Kentucky 2 1 50%

Montana 3 1 33%

* US Government 3 1 33%

* Delaware 14 4 29%

* Indiana 18 5 28%

* Ohio 25 6 24%

* Maryland 5 1 20%

South Carolina 36 7 19%

Arizona 22 4 18%

* Illinois 12 2 17%

California 13 2 15%

Arkansas 27 4 15%

Florida 64 9 14%

Mississippi 8 1 12%

Alabama 36 4 11%

North Carolina 43 4 9%

Oklahoma 84 7 8%

* Virginia 98 8 8%

Texas 393 26 7%

Missouri 66 4 6%

Colorado 1 0 0%

Georgia 39 0 0%

Louisiana 27 0 0%

Nebraska 3 0 0%

Tennessee 3 0 0%

Wyoming 1 0 0%

Total 1076 127 12%

* = Jurisdictions which resumed judicial killing with the execution of a
"volunteer"

INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED
KINGDOM

********

(1) Whitmore v. Arkansas, 495 U.S. 149 (1990), Justice Marshall
dissenting.

(2) State of Nebraska v. Carey Dean Moore, Supreme Court of Nebraska, 2
May 2007.

(3) Few women are sentenced to death and executed in the USA (between 98
and 99 % of death row inmates and those executed in the US are male).
However, of the 11 women who have been put to death, three had waived
their appeals (27 %). All 3 were white.

(4) For example, see: USA: The illusion of control  'Consensual'
executions, the impending death of Timothy McVeigh, and the brutalizing
futility of capital punishment. AI Index: AMR 51/053/2001, April 2001,
http://web.amnesty.org/library/index/engamr510532001.

(5) Killing the willing: 'volunteers', suicide and competency, by John H.
Blume, Cornell Law School, Legal Studies Research Paper Series, No.
04-022, September 2004.

(6) Comer v. Stewart. Amended opinion, US District Court for the District
of Arizona, 16 October 2002.

(7) In re Medley, 134 U.S. 160 (1890).

(8) Rees v. Peyton, 384 U.S. 312 (1966).

(9) See Whitmore v. Arkansas (1990). A state courts finding that an inmate
is competent to waive their appeals is entitled to a presumption of
correctness (Demosthenes v. Baal, 1990).

(10) Furman v. Georgia, 408 U.S. 238 (1972), Chief Justice Burger,
dissenting (joined by Justices Blackmun, Powell and Rehnquist).

(11) People v. Anderson, Supreme Court of California (1972).

(12) G. Richard Strafer, Volunteering for execution: competency,
voluntariness and the propriety of third party intervention. The Journal
of Criminal Law & Criminology, Vol 74, No 3 (1983), p. 887-8.

(13) Under Texas legislation that took effect on 1 September 2005, this
death certificate entry was changed to "judicially ordered execution".
Signing the bill into law, Governor Perry, whose term in office has now
seen more executions than any other governorship, explained that executed
prisoners "are not victims. They are criminals and the final document that
bears their name should reflect this fact." Gov. Perry Signs Life Without
Parole Bill, 17 June 2005. Press release, Office of the Governor,
http://www.governor.state.tx.us/divisions/press/pressreleases/PressRelease.2005-06-17.2331/view

(14) For example, Robert Brecheen attempted suicide a few hours before his
execution in Oklahoma in August 1995. He was rushed to hospital to have
his stomach pumped, then taken to the execution chamber and killed. In
Texas in April 1997, David Lee Herman slashed his wrists before his
execution. He was treated and then put to death. David Long attempted
suicide by drug overdose two days before he was due to be executed in
Texas on 8 December 1999. He was still in intensive care in hospital in
Galveston, about 200 kilometres from the Texas death chamber, as his
scheduled execution approached. Long was flown by aeroplane to Huntsville,
accompanied by a full medical team to ensure his safe arrival. He was then
put to death.

(15) See Strafer, Volunteering for execution, op. cit., p. 866. "Gilmore
served more than half of his life behind bars, including 18 of his last 21
years. He was last serving time in Oregon, a state that did not have the
death penalty [it was reenacted there in 1978], when he was paroled prior
to the incident resulting in his death penalty and execution. He chose to
be paroled in Utah, a state with the death penalty"

(16) For example, see cases of Thomas Akers and Daniel Colwell, pages
113-115, USA: The execution of mentally ill offenders, AI Index: AMR
51/003/2006, January 2006,
http://web.amnesty.org/library/pdf/AMR510032006ENGLISH/$File/AMR5100306.pdf.

(17) At a press conference in 2005, President George W. Bush was asked
about whether his support for executions had changed at all since leaving
the Texas governorship. The President replied: "No. I still support the
death penalty, and I think its a deterrent to crime." Presidents press
conference, 16 March 2005, available at
http://www.whitehouse.gov/news/releases/2005/03/20050316-3.html.

(18) Texas executes man for killing 2. Associated Press, 30 January 2007.

(19) Schriro v. Landrigan, US Supreme Court, 14 May 2007 ("Neither Wiggins
[v. Smith] nor Strickland [v. Washington] addresses a situation in which a
client interferes with counsels effort to present mitigating evidence to a
sentencing court. Indeed, we have never addressed a situation like this".

(20) Schriro v. Landrigan, Justices Stevens, Souter, Ginsburg and Breyer,
dissenting.

(21) USA: The execution of mentally ill offenders, January 2006, op. cit.,
pages 87-88.

(22) In 1993, the US Supreme Court ruled that the competency standard for
a defendant to waive his right to a lawyer or to plead guilty is the same
as the competency standard for standing trial (Godinez v. Moran). In other
words, once a defendant is found competent to stand trial  under the test
he has "sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding" and a "rational as well as
factual understanding of the proceedings against him"  the defendant is,
by definition, competent to waive counsel and to plead guilty.

(23) Killer's death wish is granted. Mobile Press-Register, 12 December
2006.

(24) Atmore man asks for death sentence, and judge gives it to him.
Press-Register, 22 February 2007.

(25) Karis v. Calderon, US Court of Appeals for the Ninth Circuit, 18
March 2002.

(26) People v. Deere (1985). This was later overruled in People v. Bloom
(1989). See, Anthony J. Casey, Maintaining the integrity of death: An
argument for restricting a defendant's right to volunteer for execution at
certain stages of proceedings. American Journal of Criminal Law, Volume
30, pages 75-106 (2002).

(27) "Within the category of capital crimes, the death penalty must be
reserved for the worst of the worst." Kansas v. Marsh, US Supreme Court,
26 June 2006, Justice Souter dissenting (joined by Justices Stevens,
Ginsburg & Breyer).

(28) Lenhard v. Wolff, 444 U.S. 807 (1979), Justice Marshall dissenting.
The case involved Jesse Walter Bishop, who waived his appeals and was
executed in Nevada's gas chamber on 22 October 1979, three weeks after the
Supreme Court refused to intervene.

(29) Gilmore v. Utah, 429 U.S. 1012 (1977), Justice Marshall dissenting.

(30) Only issues in the trial record  such as rulings made by the trial
judge  are reviewed on direct appeal. Matters outside the record  such as
the withholding of evidence by the prosecutor or the failure of the
defence lawyer to present particular evidence  are presented via habeas
corpus appeals. After the US Supreme Court ruled in 1984 that
proportionality review is not a constitutional requirement, most state
high courts reduced such review to a "perfunctory exercise". See USA: The
experiment that failed  A reflection on 30 years of executions, January
2007, http://web.amnesty.org/library/Index/ENGAMR510112007.

(31) State v. Torrence (1996).

(32) The information in this paragraph is taken from Capital Punishment
2005, US Bureau of Justice Statistics, December 2006.

(33) Under international law, the USA is a single state. The federal
structure of government does not absolve the USA of its treaty obligation
to ensure the non-arbitrary application of the death penalty, while
working towards its abolition.

(34) Anthony J. Casey, Maintaining the integrity of death: An argument for
restricting a defendants right to volunteer for execution at certain
stages of proceedings. American Journal of Criminal Law, Volume 30, pages
75-106 (2002).

(35) New Yorks death penalty statute has since been struck down by the
states high court, and to date no new statute has been enacted.

(36) In State v. Hightower in 1986, for example, the New Jersey Supreme
Court overturned the death sentence in a case where the defendant had
prevented the presentation of mitigation evidence. In January 2007, a
study commission into New Jersey's death penalty recommended abolition.
See: USA: New Jersey Death Penalty Study Commission recommends abolition,
3 January 2007, http://web.amnesty.org/library/Index/ENGAMR510032007. New
Jersey has conducted no executions since 1977. At the time of writing, the
state legislature was considering abolitionist legislation.

(37) New Jersey v. Martini (1996). ("It is self-evident that the state and
its citizens have an overwhelming interest in insuring that there is no
mistake in the imposition of the death penalty").

(38) Anthony J. Casey, Maintaining the integrity of death, op.cit.

(39) Ibid.

(40) USA: The execution of mentally ill offenders, January 2006, op. cit.

(41) Corcoran v. Buss, Opinion and Order, US District Court, Northern
District of Indiana, Judge Allen Sharp, 9 April 2007.

(42) Three Ohio Supreme Court Justices dissented against the courts
affirmation of his death sentence. Given Vrabel's mental illness, they
took the view that he did not fall into the category of the "worst of the
worst" crimes and offenders for which the death penalty is supposed to be
reserved under US law. USA: The execution of mentally ill offenders,
January 2006, op. cit., pages 74-76.

(43) Comer v. Stewart. Amended opinion, US District Court for the District
of Arizona, 16 October 2002.

(44) Comer v. Schriro, US Court of Appeals for the Ninth Circuit, 13
September 2006.

(45) Ibid.

(46) Ibid, Judge Rymer concurring in part and dissenting in part.

(47) Comer v. Schriro, Ninth Circuit Court of Appeals, 15 March 2007,
Judge Pregerson dissenting.

(48) Comer v. Stewart, US Court of Appeals for the Ninth Circuit, 6 June
2000.

(49) Comer v. Stewart. Amended opinion, In the US District Court for the
District of Arizona, 16 October 2002.

(50) State v. Comer. Warrant of execution, Supreme Court of Arizona, 17
April 2007.

(51) http://www.azcorrections.gov/adc/prisons/florencehist.asp.

(52) Fierro v. Gomez, US Court of Appeals for the Ninth Circuit, 21
February 1996.

(53) http://www.azcorrections.gov/adc/prisons/florencehist.asp.

(54) Morales v. Tilton, Memorandum of intended decision; Request for
response from defendants. US District Court for the Northern District of
California, 15 December 2006.

(55) Alley v. Little, US Court of Appeals for the Sixth Circuit, Judge
Martin dissenting from denial of rehearing en banc (joined by Judges
Daughtrey, Moore, Cole and Clay).

(56) Cooey v. Taft, U.S. District Court for Southern District of Ohio, 6
December 2006.

(57) Although see Nebraska Supreme Court intervention in the case of Carey
Moore, below.

(58) George F. Solomon, Capital punishment as suicide and as murder,
reprinted in Capital punishment in the United States, H. Bedau and C.
Pierce eds (1976). Quoted in Strafer, Volunteering for execution, op.cit.
p. 864.

(59) A death row Republican. The Other Paper (Columbus, Ohio), 3 May 2007.

(60) Deborah W. Denno. The Lethal injection quandary: How medicine has
dismantled the death penalty. Fordham University School of Law (Working
Paper), May 2007, available at http://ssrn.com/abstract=983732.

(61) Workman v. Bredesen, US Court of Appeals for the Sixth Circuit, 7 May
2007, Judge Cole dissenting.

(62) Lethal injection for execution: chemical asphyxiation? PLOS Medicine,
Vol. 4, Issue 4, April 2007,
http://medicine.plosjournals.org/archive/1549-1676/4/4/pdf/10.1371_journal.pmed.0040156-L.pdf.

(63) Denno, The Lethal injection quandary, op. cit, page 30.

(64) On 4 November 1997 in Arkansas, four weeks before Daryl Holton killed
his children, Christina Riggs, who came from a family with a history of
mental illness and suicidal tendency, killed her two young children. She
then attempted to commit suicide, but survived. At her trial, a
psychiatrist and a psychologist testified that her actions were the result
of severe depression. They gave their opinion that, to her, the childrens
deaths were an act of love and an extension of her own suicide. The
psychologist said: "The pathological suicidal depression that she was
in.... effectively precluded her from being able to do something more
reasonable, something more appropriate. From the outside looking in, the
death of 2 children like this is pretty horrible. From the inside looking
out, it looks like an act of mercy." For the state, a psychiatrist and a
psychologist did not dispute that her suicide bid was genuine, but
testified that they did not believe that she was sufficiently depressed to
justify the defence of not guilty by reason of mental impairment. The jury
agreed and convicted her of capital murder after less than an hour of
deliberation. At the sentencing, Christina Riggs refused to have any
evidence presented on her behalf and asked the jury for a death sentence.
Having been granted her wish, she then refused to appeal her sentence. She
was executed in May 2000. See USA: The execution of mentally ill
offenders, January 2006, op. cit., pages 119-120.

(65) Holton v. State and Reid v. State, Supreme Court of Tennessee, 4 May
2006.

(66) Affidavit of Kelly A. Gleason, 1 September 2006.

(67) Affidavit of William D. Kenner, III, M.D., 6 July 2005.

(68) Affidavit of George W. Woods, Jr., 27 July 2006.

(69) Holton v. Bell, Original petition for writ of habeas corpus, In the
US Supreme Court, 16 September 2006.

(70) Holton v. Bell, Final brief of respondent-appellee, In the US Court
of Appeals for the Sixth Circuit, 29 September 2006. In 1993, in the case
of a Nevada capital defendant, two US Supreme Court Justices had noted
that "A person who is competent to play basketball is not thereby
competent to play the violin[A] monolithic approach to competency is true
to neither life nor the law. Competency for one purpose does not
necessarily translate to competency for another purpose The record in this
case gives rise to grave doubts regarding [the prisoners] ability to
discharge counsel and represent himself." Godinez v. Moran, 509 U.S. 389
(1993), Justice Blackmun, with Justice Stevens, dissenting.

(71) Report on Administration of Death Sentences in Tennessee, Tennessee
Department of Correction, April 2007.

(72) Ernie Chambers asks Nebraska Supreme Court to suspend executions.
Omaha World-Herald, 30 April 2007.

(73) Nebraska v. Moore, Supreme Court of Nebraska, 2 May 2007. The
Governor of Nebraska issued a one-line response to the stay of execution:
"This unprecedented judicial activism leaves me speechless." Gov.
Heineman's Statement on Judicial Stay of Execution, 3 May 2007,
http://www.gov.state.ne.us/news/2007_05/05_execution_stay.html. In a
speech on judicial independence a few days earlier, Carey Moore's lawyer
(before Moore dropped his appeals) said: "Independent judges, beholden to
no person or group, and no matter how powerful, provide the equal
possibility of justice for the least desirable, the most odd, handicapped,
weakened, friendless, eccentric, poor and marginalized people, the
downtrodden in other words, as well as the few who hold positions of
wealth, acclaim and power, in other words the uptrodden. All litigants are
heard, and stand equal despite their rank, office, money or power Activist
judges, a code phrase for those who really do enforce the bill of rights
as best they can, are commonly criticized by folks who think such rights
are mere technicalities with no practical value. Sentences less than
maximum draw much criticism and calls for removal, no matter what the
reason for the sentence. These are real and frequent instances of attacks
on the independence of the judiciary". Alan Peterson. Nebraska State Bar
Foundation Law Day remarks, 30 April 2007, Lincoln, Nebraska. Copy on file
with Amnesty International.

(74) State of Ohio, Adult Parole Authority, In re: Christopher J. Newton.
Report, 16 February 2007.

(75) The UN Human Rights Commission, for example, in repeated resolutions
over the years, held that abolition of the death penalty "contributes to
the enhancement of human dignity and to the progressive development of
human rights".

AI Index: AMR 51/087/2007 17 May 2007

(source: Amnesty International)