April 4
COLORADO:
Death penalty repeal not happening----Supporters can't pin down votes in
Colorado Senate
Colorado's rarely used death penalty will remain in place after state Senate
Democrats on Tuesday, April 2 abandoned an effort to repeal it this year.
The bill was banning capital punishment was expected to easily pass the House,
where Democrats have a much wider margin, and get Gov. Jared Polis' signature.
But it had been in limbo for weeks while supporters tried to find enough votes
in the Senate, where Democrats hold only a 2-seat advantage.
State Sen. Julie Gonzales, a Denver Democrat and one of the bill's sponsors,
fought tears on the Senate floor Tuesday as she asked that the legislation not
be debated until May 4, the day after the regular session ends, effectively
killing the bill.
"For many of us, this has not solely been a head decision," she said. "It's
been a heart decision."
Colorado has used the death penalty just once since the U.S. Supreme Court
reinstated it in the 1970s. Three men currently sit on death row here, but no
one has been sentenced to death in a decade — including in horrific crimes such
as the Aurora theater shooting and Christopher Watts' 2018 murder of his wife
and 2 young daughters.
Former Colorado Gov. John Hickenlooper in 2013 indefinitely stayed the
execution of Nathan Dunlap, who was found guilty of killing four of his former
co-workers at an Aurora pizza parlor. The other two men on death row are Sir
Mario Owens and Robert Ray, who were convicted in the 2005 murders of Javad
Marshall-Fields and Vivian Wolfe. They are in the midst of appeals and their
executions have not been scheduled yet.
While Democrats are more likely to oppose capital punishment, the issue doesn't
break strictly along party lines.
State Sen. Rhonda Fields, an Aurora Democrat and the mother of Javad
Marshall-Fields, is a staunch supporter of the death penalty.
"I feel a little numb. It's such a sense of emptiness," Fields said in an
interview. "It's been something that's been lingering out there. There are no
winners in this."
State Sen. Angela Williams, another Denver Democrat and sponsor of the bill,
said later that she was disappointed in her colleagues. At least four members
of the Senate Democratic caucus would not commit to vote one way or the other,
creating an unusual level of certainty.
"This is a progressive issue, so I'm extremely disappointed in legislators who
are not able to determine where they are and take the tough votes," she said.
Both Gonzales and Williams vowed to bring the bill back next year. Williams
said she has already taken steps to re-introduce the legislation.
"We're going to bring it back and we're going to bring it back and we're going
to bring it back until we repeal this barbaric piece of legislation," Williams
said.
Earlier this year, the governor floated an idea of a special session if
lawmakers couldn't work out their differences. That no longer appears to be the
case. In a statement, Polis said there are "no plans" for a special session.
"It has always been my position that the death penalty is an ineffective
deterrent that is discriminatory in its application and ends up costing
taxpayers more than a life sentence without parole," Polis said. "I hope that
legislators take the time to continue working on this issue so hopefully by
next session, we can end this ineffective, expensive and discriminatory
practice."
(source: Fort Morgan Times)
ARIZONA----new death sentence
Killer who claimed Scientology defense sentenced to death by Arizona jury
The man who tried and failed to convince jurors that his upbringing as a
Scientologist helped rationalize why he bludgeoned two people to death and set
their bodies on fire was sentenced Wednesday to death by a Prescott jury.
The jury announced its verdict of death shortly after noon, according to a
public information officer for the Yavapai County Superior Court.
Kenneth Wayne Thompson, 35, used a hatchet and knife to kill his sister-in-law,
Penelope Edwards, and her boyfriend, Troy Dunn, in March 2012, according to
court testimony. He then poured acid over the bodies and set the house on fire
before fleeing the scene.
A jury convicted him of the killings Feb. 20. Jurors began deliberating on
March 30 whether Thompson should spend his life in prison or die by lethal
injection.
Prosecutors with the Yavapai County Attorney’s Office painted the crime as a
deliberate plan, hatched in Thompson’s mind days before and carried out
unbeknownst to anyone, including his wife, Gloria.
As evidence, prosecutors told jurors how Thompson bought a gun and a temporary
cellphone in the days before. He then told his wife he was leaving their home
in the Ozarks region of Missouri to travel to Memphis to deal with a legal
issue involving his parents’ estate.
Instead, Thompson drove to Arizona, making the journey in just over a day with
minimal stops, according to court testimony.
Thompson’s attorneys didn’t dispute the bare facts. But they offered a
different motivation and rationale, rooted in Thompson’s being raised as a
Scientologist.
Thompson, in his attorney’s version, saw himself on a mission to rescue 2
children who were in his sister-in-law’s care. Thompson’s wife, Gloria, had
cared for the children temporarily while her sister, Penelope, had served a
prison sentence. After the children were returned to their mother, Gloria still
fretted about the kids’ well-being, testimony showed.
Thompson and his wife had just discovered that one of the children was being
treated in the psychiatric ward of a children’s hospital. And for Thompson, who
was raised as a Scientologist, that was akin to killing the child spiritually.
"(Scientologists) think psychology is evil and a scam," defense attorney Robert
Gundacker told jurors in his opening statement.
Thompson, according to his attorneys, came to a junction of Interstate 40 and
made an impulsive decision to head west to Arizona rather than east to
Tennessee.
Thompson’s wife sent increasingly frantic text messages to his phone, imploring
him to contact her. But Thompson didn’t take his phone on the trip, testimony
showed. He had a temporary phone; his usual phone was found at his Missouri
home weeks later, his wife testified.
The trip was not evidence of premeditation, his attorney said, but showed how
seriously Thompson took his religious belief that the child receiving mental
treatment was in spiritual peril and needed rescuing.
Thompson, speaking to jurors before they began deliberating his sentence, said
he showed up at the house aiming to bribe his sister-in-law to let him bring
the children back with him to Missouri.
“I was going to try to buy happiness for these 2 children,” Thompson said,
according to a story in the Prescott Daily Courier. Thompson, according to the
Courier, spoke to the jury for nearly 4 hours.
Thompson told jurors the conversation about the children turned violent.
“I can’t say I’m sorry they’re dead,” Thompson told jurors, according to the
Courier. “Penelope Edwards hurt her children all the time. Troy hurt children.
He was not a good guy.”
His attorneys argued that Thompson killed the couple in the heat of passion.
They asked jurors to return a verdict of manslaughter.
The jury deliberated less then two hours before returning the verdict that
Thompson was guilty of first-degree murder. That same jury then began deciding
whether the crime merited the death penalty.
Gregory Parzych, one of Thompson’s attorneys, said his client showed little
emotion in the courtroom when the verdict was announced.
Parzych, who defended Thompson along with 2 public defenders from Yavapai
County, said the defense team was disappointed that their strategy of trying to
get jurors to see the crime through Thompson's unique upbringing did not keep
their client off death row.
“When you get a death verdict, you will always second-guess yourself and you
always regret certain things that you did or did not do,” he said. “That’s just
inevitable.”
Though the state objected to the defense, the judge allowed Thompson’s
attorneys to spend the better part of a day at trial walking jurors through the
beliefs of Scientology.
An expert in the religion, flown in from Canada, gave sworn testimony about the
origins of the religion, which included a warlord named Xenu who buried beings
in a volcano on what is now Planet Earth.
Jurors also heard about the use of introspective counseling called “auditing”
that Scientology adherents believe can rid the body of unwanted thetans,
leaving a person in the desired state of “clear.”
Thompson's ex-wife, Gloria, testified that Thompson had stopped being a
practicing Scientologist, partly because of the expense.
Other testimony suggested that Thompson was a so-called “free zone”
Scientologist. That schism of the faith adheres to what it says are the
original teachings of the church’s founder, L. Ron Hubbard, and does not follow
the church’s current leader, David Miscavige.
The Church of Scientology was not pleased to see its religious beliefs become
entangled in a brutal murder trial.
A Church of Scientology spokesperson, Karin Pouw, in a statement sent to The
Republic in February, said the testimony about Scientology was distorted and
incorrect, contributing to “hate, intolerance and bigotry.”
Deputy Yavapai County Attorney Steve Young echoed that sentiment during his
closing arguments to jurors before they decided whether Thompson was guilty.
"Why is Scientology even injected into this trial?" he asked. "Scientology is
not on trial; the defendant is. Scientology did not kill (the victims); the
defendant did." The prosecution described the killings as methodical.
After arriving in Arizona following his marathon drive, Thompson checked into a
motel for a brief rest. Early the next morning, he visited a Walmart where he
bought a hatchet and a change of clothes. His attorneys had suggested the
hatchet was bought for a planned camping trip, not for the double murder he
would commit hours later.
Thompson took a taxi to his sister-in-law's home in Prescott Valley and was
allowed inside. From there, it is not clear what happened.
Evidence showed that Edwards made a phone call after Thompson entered the home.
Thompson apparently brought food for the couple. And drugs were found in the
victims’ systems, though it is not clear when those drugs were taken.
But hours later, neighbors reported a house fire. Crews discovered the charred,
hacked and bludgeoned bodies of the victims.
Thompson drove east on Interstate 40, but was stopped by a trooper who thought
something was suspicious about the man driving past with his arms locked
straight.
It was disputed in court testimony whether Thompson consented to the search.
But that search turned up the hatchet that had human hair and blood on the
blade. The trooper called in to dispatch and asked if there were any murders in
the area and was told of the house fire and double homicide just discovered in
Prescott Valley.
Handcuffed on the side of the freeway, Thompson, according to the police
report, asked if Arizona allowed conjugal visits.
(source: azcentral.com)
CALIFORNIA:
Gavin Newsom could be ahead of the curve on the death penalty
Gov. Gavin Newsom’s decision last month to declare a moratorium on the death
penalty in California drew instant complaints that he was tromping on the will
of the people who voted down a ban on capital punishment in 2016.
But the real worry for death penalty supporters should be Newsom’s long record
of getting in front of controversial social issues and bringing them into
mainstream acceptance. Same-sex marriage, legalized marijuana and tougher gun
control rules are all issues the governor identified early and turned into
popular, voter-friendly causes.
Those who successfully opposed the Proposition. 62 death penalty ban in 2016
also passed Proposition 66, which was designed to trim the number of appeals
for death row inmates and speed up executions. Now they say their concerns are
all about fairness.
“We had a campaign, we had an election, (Newsom) was campaigning on one side
and his side lost,” said Kent Scheidegger, legal director for the Criminal
Justice Legal Foundatio and co-author of Prop. 66. “Now he wants to change the
result.”
Newsom’s action “flies in the face of what voters have done,” San Mateo County
District Attorney Steve Wagstaffe said in an interview with KRON-TV after the
governor signed his executive order March 13. “I guess he decided his personal
views outweigh the view of the public.”
Newsom doesn’t argue that. His decision was absolutely personal, the governor
said.
“This is about who I am as a human being,” he said in a Sacramento news
conference. “I can’t sign my name to (a death warrant). ... I wouldn’t be able
to sleep at night.”
But Newsom’s personal concerns may be getting a boost from his political
instincts. A new poll by the Public Policy Institute of California suggests
plenty of other people share his unhappiness with capital punishment.
In the survey, 62 % of California adults said they would prefer that the
penalty for 1st-degree murder was life imprisonment without parole, compared
with 31 % who favored the death penalty. That’s a sharp contrast from the 49 %
who backed the death penalty in a 2000 poll and the 38 % support in 2012, said
Mark Baldassare, president and CEO of the institute and the poll’s director.
“That’s a big change over the years,” he said. “It shows that public opinion is
moving on the topic.”
But as the previous election results proved, poll numbers are no guarantee of
victory, especially with a subject as divisive as the death penalty.
In any election, “there will be a campaign and questions will be raised,”
Baldassare said. “The voters’ default position is a ‘no’ vote on initiatives,
so it’s a challenge to find a reason for them to vote ‘yes.’”
While Newsom talks about his personal concerns about the death penalty, he
hasn’t shied away from the political aspects of the moratorium.
The governor doubled down on his decision by taking off almost immediately on
an East Coast tour to talk about the death penalty on national shows. In a
Facebook interview with BuzzFeed News, Newsom said the 2020 Democratic
presidential candidates should promise to commute all federal death sentences.
“It’s the moral thing to do,” he said. Ending the death penalty “should be part
of the conversation of a presidential damn campaign, not some of these
sideshows ... that, frankly, are a little more trivial to me than the issues of
life and death.”
There are plenty of similarities between Newsom’s death penalty stance and his
2004 decision to allow same-sex couples to marry in San Francisco.
In February 2004, after barely a month in office, Newsom opened San Francisco
City Hall to gay and lesbian couples who wanted to marry, in defiance of a
state ban on those unions. While the state Supreme Court shut down the effort
after a month and later invalidated all the same-sex marriage licenses, the
effort turned Newsom into a national figure.
Death penalty supporters are confident voters aren’t willing to banish the
death penalty, something Californians refused to do in 1972 and 2012 in
addition to 2016.
“The death penalty (repeal) failed by a bigger margin in 2016 (47 to 53
percent) than in did in 2012 (48 to 52 percent),” said Scheidegger of the legal
foundation. “People haven’t changed that much since then.”
But Newsom is familiar with the long game.
It was 11 years between San Francisco’s 1st gay and lesbian marriages and the
2015 Supreme Court ruling that made those same-sex unions legal across America.
And then-President Barack Obama, who as a 2004 candidate for Senate reportedly
refused to have his picture take with Newsom because he was worried the
same-sex marriage issue would hurt his chances, hailed the ruling as something
that “made our union a little more perfect.”
(source: John Wildermuth is a San Francisco Chronicle staff writer)
USA:
This US supreme court ruling on how a man must die is a study in cruelty
When does the execution of a prisoner cross a line and become “cruel and
unusual”? In the strange world of the US death penalty, that is an
all-important legal question. The US constitution prohibits “cruel and unusual”
punishments, but condemned prisoners seeking relief have to prove their
executions meet this definition, as opposed to just being “painful”.
This week the US supreme court handed down a ruling that sought to clarify what
manner of execution would meet constitutional standards of cruelty and
unusualness. The court’s answer? Disembowelling.
Not only disembowelling: the conservative justices in the majority conceded
that public dissection and burning alive would also be too much. In doing so,
they cited the definition of cruelty given in Dr Samuel Johnson’s Dictionary of
the English Language – specifically its 4th edition, published in 1773.
The court’s ruling came in response to an appeal filed by a condemned prisoner,
Russell Bucklew, who has a rare medical condition that causes blood-filled
tumours to grow in his head. Doctors had told him lethal injection would cause
those tumours to burst and lead him to suffocate on his own blood, so he sought
to be executed using nitrogen gas instead.
The court denied Bucklew’s request, finding that he had not been specific
enough about whether his executioners should use “a gas chamber, a tent, a
hood, a mask, or some other delivery device”.
The court’s ruling confirms a legal standard established in a 2015 case, under
which prisoners seeking to challenge a torturous lethal injection must present
a suitable alternative way for the state to execute them. Incidentally, no
judge has yet ruled it cruel or unusual to force prisoners into choosing their
own method of execution.
It also recalls one of the most quoted statements in the body’s history: the
1994 pledge by Justice Harry Blackmun that “from this day forward, I no longer
shall tinker with the machinery of death”.
This kind of tinkering is the court’s current preoccupation. How else might we
characterise a ruling that carefully considers the relative benefits of
disembowelling, dissection, gassing and hanging – the latter a method that new
justice Neil Gorsuch suggested might not be unconstitutional on the basis that
it was never intended to cause pain?
Monday’s ruling was delivered by the supreme court’s new conservative majority:
the majority opinion was written by Gorsuch, and endorsed by Brett Kavanaugh.
But while it may tell us a lot about the current court, it does not reflect the
reality of capital punishment in the US today. While the justices’
deliberations might suggest a resurgence in US executions, in fact the opposite
is true.
The latest annual report by the Death Penalty Information Center found death
sentences and executions in the United States to be “near generational lows”,
with most death sentences coming from just four states: Texas, Florida, Ohio
and California.
Even in these states, the death penalty is dying. Last month, the governor of
California, Gavin Newsom, announced a moratorium on executions: “Our death
penalty system has been – by any measure – a failure,” he said.
Rejecting the perverse misuse of medicines in lethal injections, pharmaceutical
companies across the board refuse to sell their drugs for capital punishment,
making publicly clear their products are made to save and improve lives, not to
end them in torturous executions.
'The death penalty is wrong': California governor halts all state executions
Politicians of all persuasions have also turned against capital punishment.
This year, New Hampshire’s house of representatives passed a death penalty
repeal bill with a majority large enough to override a veto threatened by the
state’s governor. Elsewhere, bills to abolish or restrict the death penalty
have advanced under conservative stewardship in states including Wyoming and
Kentucky.
In this respect, the image that defines the US death penalty in 2019 may not be
nine robed justices weighing up execution methods. A more powerful picture, and
one of greater consequence, is the dismantling of the execution chamber at
California’s San Quentin state prison – a sight evoking 737 executions of
people currently on the state’s death row that, for now, will not be carried
out.
The life or death of capital punishment will not be determined solely in the
chamber of the supreme court. Voters, politicians and businesses also have a
say. And, from California to New Hampshire, voices are rising against further
tinkering with the machinery of death.
(source: Opinion; Maya Foa is director of Reprieve----The Guardian)
*************************
Law & the Courts ---- The Supreme Court’s Absurd Death-Penalty Debate
The headlines say the justices of the Supreme Court are “openly feuding” and
“sniping” at one another over the death penalty. What they are in fact doing is
nibbling around the edges.
Some opponents of the death penalty wish to see the Supreme Court declare it
unconstitutional, and they are not too picky about how that gets done: not
jurisprudence but jurispretext.
The problem with that is that the Constitution itself categorically sanctions
capital punishment, for instance by specifying in the Fifth Amendment certain
limitations on the conditions in which a person may be “deprived of life.”
Whatever “cruel and unusual punishment” means in the Eighth Amendment, no one
involved in the drafting of that language or the ratification of the
Constitution believed that it prohibited capital punishment. “We should not
pretend the Constitution is silent or ambivalent about the basic existence of
the practice,” writes Damon Root, author of Overruled: The Long War for Control
of the U.S. Supreme Court. “Like it or not, the death penalty is
constitutional.”
The current Supreme Court action regarding the death penalty, from a legal
point of view, amounts to little more than trivia. In some states, only prison
employees may be present in the death chamber, which means that if there is a
Christian or Muslim chaplain on the prison staff, he may be physically present,
but a Buddhist or Zoroastrian may be denied similar consolation if there is no
affiliated clergyman on the payroll. That case would be of scant interest if
not for its intersection with the issue of capital punishment. Another case
involves a man who suffers from a rare disease that, according to his lawyers,
would cause him to endure horrifying pain if he were to be put to death via
lethal injection. Likewise, that case has little to do with the merits or
acceptability of capital punishment as such.
There is a long history of this sort of thing when it comes to the death
penalty. The Furman case found the Supreme Court handing down a national
moratorium on executions in an intellectually and legally incoherent decision —
it was a 5–4 case with five different majority opinions — based on the nebulous
considerations of arbitrariness and loosely defined “discrimination.”
Most of the popular arguments against the death penalty are like most
investment advice and Republican campaign promises: I want to believe, and am
inclined to do so, but they do not stand up to much scrutiny. It may very well
be the case that an innocent man will be sentenced to death, but that also is
an argument against incarceration, speeding tickets, and much else. An
execution cannot be undone, but neither can the damage from 40 years’ wrongful
incarceration. The irreversibility of the death penalty is an argument for
prudence in its use, as indeed we must be prudent in all uses of state
violence. It is not an argument against the thing itself. Neither is the
related argument that the wealthy and well-connected tend to achieve better
outcomes in capital cases than do the poor and the marginalized. There is
little doubt that this accords with the facts on record — everybody hates
lawyers until one is needed, and in a murder case, there is practically no
expense that will not be endured — but, again, this is an argument for
procedural reform rather than argument against a mode of punishment.
The myth that it is wildly more expensive to pursue a death-penalty case than
to manage a lifelong incarceration would, even if it were true, be a sterile
argument. There are many good occasions for the green eyeshades, but responding
to murder or other heinous crimes is not one of them.
The fundamental obstacle to arguments against capital punishment is that it is
not as a general matter unjust, though it may be unjustly applied in some
particular case. Capital punishment is applied unevenly and in ways that often
are perplexing, but it is applied relatively rarely, and it is applied in the
context of a legal system that, whatever its faults, provides the accused with
representation, procedural openness, a generous appellate process, and much
more. Our prisons are a scandal, but the process by which offenders are
remanded there is admirable, strange as that word may sound in this grim
context. It is not perfect or free from abuse — including the willful abuses
and occasional incompetence of police, investigators, and prosecutors, which
are serious problems — but perfection is not the criterion of legitimacy or
constitutionality.
There is a more straightforward case against the death penalty: that, on
balance, it adds more violence and horror to our society than it is worth, that
it does not bring out the best in us or in our institutions, that in our
necessary pursuit of justice we need not see to it that the bitter cup is
drained to the dregs in every instance, that we are better off showing mercy in
this matter, and that what mercy entails is forbearance toward those who in
fact deserve the worst that we might hand down.
But these are not questions for the Supreme Court. They are considerations for
Congress and the states, which have the power to end the practice of capital
punishment whenever they so choose. The Democrats who currently are in control
of the House of Representatives could, if they had the courage of their
convictions, make an issue of the death penalty in federal cases, and could
probably count on the cooperation of at least a few Republicans in Congress and
many more conservatives outside of elected office.
And it would be a far better thing to eliminate capital punishment on principle
rather than on pretext.
(source: Kevin D. Williamson — Kevin D. Williamson is the roving correspondent
for National Review)
******************
On death penalty, Supreme Court veering badly off course
Across the United States, the death penalty has been in steep decline. Last
year, just 25 individuals were executed, and it’s been hovering below 30 for 4
years now — a far cry from just 20 years ago when it was more than 3 times that
number. And it’s not just a slow-moving death row. The Death Penalty
Information Center reports that just 40 people were sentenced to death in the
U.S. in 2018 while in 1996, it was nearly 8 times as many.
Given that fundamental shift in public sensibilities — this recognition that
capital punishment is not only inherently barbaric but patently racist and
arbitrary, and given the choice by those states that have not yet abandoned the
death penalty to use it so rarely — the recent decision by the U.S. Supreme
Court to allow Missouri to move forward with an execution through a method
likely to prove especially painful and harsh seems grossly out of step with
where civil society stands right now. To describe the decision as “cruel and
unusual” is surely no stretch. And the blunt language used by Justice Neil
Gorsuch to justify it was chilling.
The case in question involves a Missouri murderer named Russell Bucklew, a
50-year-old who suffers from a rare medical condition, cavernous hemangioma,
that causes him to grow numerous blood-filled tumors that doctors say are
likely to burst with a lethal injection of pentobarbital, causing him to choke
and suffocate on his own blood, which is far from the merciful death expected
from what is supposed to be the most humane of death penalty methods. Lawyers
representing him had asked the court to order Missouri to use a gas chamber to
reduce his risk of pain. On a 5-4 vote, the nation’s highest court decided that
this mercy was not necessary.
“The Eighth Amendment does not guarantee a prisoner a painless death," wrote
Justice Neil Gorsuch for the majority in the death row appeal, apparently
seeing a big distinction between pain and cruelty, which is absolutely
forbidden by the amendment.
This might seem an anomaly, but it isn’t the first time the conservative
majority has acted callously toward a death row inmate. In February, the same
court in Dunn v. Ray ruled that Alabama did not have to permit Muslim inmate
Domineque Ray to have an imam present at his execution despite the standard
practice of having clergy to be present (which in Alabama apparently applies to
Christians exclusively as officials offered a Christian chaplain but no one
else). The justification? That Mr. Dunn had asked for his religious leader at
the “last-minute.” The execution went forward, although curiously a Buddhist
inmate’s execution in Texas was blocked by the Supreme Court just last week
because Texas prison officials refused to allow Patrick Murphy’s spiritual
adviser to be present. The difference? Justice Brett Kavanaugh apparently
changed his mind on how the Constitution protects religious freedom.
The anti-death-penalty movement just got a cold dose of Gorsuch
Whether or not imams will soon be given the respect afforded priests, it’s
clear that a Supreme Court with Justices Gorsuch and Kavanaugh is pro-death
penalty, Mr. Gorsuch, in particular, having poo-pooed last-minute stays of
executions, writing in Bucklew v. Precythe that “last-minute stays should be
the extreme exception, not the norm.” Apparently, the procedural inconvenience
is too much, or as Justice Sonia Sotomayor wrote in an eviscerating response,
the defendant should have figured out in advance that an imam would not be
allowed even though the prison system was unwilling to share with him a copy of
its practices and procedures and the appeal was filed within days of learning
that an imam was not allowed.
Clearly, it is too much to expect the high court’s Gorsuch-led majority to
recognize the inherent cruelty of the death penalty, particularly when they
can’t be bothered to require one state to come up with a less savage way to
kill one prisoner. As we have observed on this page many times before, the
death penalty does not deter crime. Most Americans recognize it isn’t
administered fairly. It’s a shameful relic of the nation’s past that has been
abolished or placed under a moratorium in the vast majority of countries (170
by the United Nations’ latest tally). The Supreme Court’s shameful rulings are
a reminder that moving the U.S. toward a more civil and rational approach to
punishing the worst criminal offenders rests mostly in the hands of people like
California Gov. Gavin Newsom, who last month signed an executive order placing
a moratorium on that state’s death penalty on the grounds that for him to sign
someone’s death warrant was wrong, just flat-out wrong.
(source: Editorial Board, Baltimore Sun)
******************
Death-Penalty Drama in the Supreme Court----In his Civil Rights and Civil
Liberties column, Christopher Dunn discusses dramatic developments in the
Supreme Court concerning death-penalty protections, specifically cases
involving striking black jurors from a jury, sentences of life in prison
without parole, and a death row inmate with dementia.
For death-penalty advocates, the last 6 weeks have seen one dramatic
development after another. Last Thursday, the U.S. Supreme Court blocked a
Texas execution because the state would not permit the condemned to have a
Buddhist spiritual advisor present while allowing Christian and Muslim
advisors. The week before, in a Mississippi death-penalty case, every member of
the Court save its sole African-American one seemed poised to expand
protections against racially-biased juror exclusions. Two days earlier, on
March 18, the Court agreed to address the scope of its recent jurisprudence
severely limiting the imposition of life-without-parole sentences on juveniles
in a case arising out of a notorious string of random shootings around
Washington, D.C.
Remarkable as March was, perhaps the most dramatic development came at the end
of February, when the Supreme Court vacated the death sentence of an Alabama
man who had developed dementia while awaiting execution. Though the Court
described itself as applying well-settled principles, the line-up of Justices
in the majority was striking and, as the dissent makes clear, what that
surprising line-up did was highly unusual. The February 27 ruling and the
subsequent developments about juvenile sentencing and jury selection warrant
particular attention given their potential impact on death-penalty cases.
Striking Black Jurors
In 1986 the Supreme Court finally recognized that the U.S. Constitution bars
one of the most pernicious prosecutorial practices in our criminal
justice-system: the use of preemptory challenges to strike potential jurors on
the basis of their race—invariably because they are African-American. Despite
that watershed ruling in Batson v. Kentucky, 476 U.S. 79 (1986), race-based
juror disqualifications have remained an engrained practice. A case argued
before the Supreme Court 2 weeks ago dramatically illustrates the practice’s
persistence.
On July 16, 1996, 4 employees of the Tardy Furniture Store in Winona, Miss.,
were found shot to death. Curtis Flowers, a recently-fired store employee, was
arrested, charged with capital murder, and ultimately convicted after being
tried 6 times, all with the same prosecutor. During the first 4 trials, the
prosecutor used every 1 of his 36 preemptory challenges to strike black jurors,
with 1 conviction being reversed on Batson grounds. At the 6th trial, the
prosecutor accepted the 1st black juror candidate but then struck the remaining
5, resulting in a jury of 11 white jurors and 1 black juror, who convicted
Flowers. He was then sentenced to death.
While Flowers’ request for review was pending before the U.S. Supreme Court,
the Court decided Foster v. Chatman, 136 S.Ct. 1737 (2016), in which it
reversed a conviction in a capital case on Batson grounds in light of
post-conviction revelations that the prosecutor’s file in that case was replete
with evidence the prosecutor used preemptory challenges to exclude blacks from
the jury because of their race. The Supreme Court then vacated Flowers’
conviction and remanded his case for reconsideration in light of Foster.
On remand the key question was whether the prosecutor’s juror-selection history
during all 6 trials should be considered in assessing the Batson challenge
arising from the final trial. In considering this claim the Mississippi Supreme
Court faithfully recited the Batson 3-part test and reasoned that the 3rd
part—that “the trial court must determine whether the defendant has shown
purposeful discrimination—necessarily allowed for consideration of the
prosecutor’s history. But the Mississippi high court also read that step to
require it to defer entirely to the trial court’s conclusion in Flowers’ case
that the history did not reveal improper animus in the 6th trial.
It was this prosecutorial history that was the subject of debate at the March
20 arguments before the U.S. Supreme Court, and it was not only the liberal
Justices who raised serious concerns. Justice Alito called the prosecutor’s
record “unusual and really disturbing,” and Justice Kavanaugh declared, “We
can’t take history out of the case.” By all accounts, it appears the court will
vacate Flowers’ conviction and death sentence, perhaps breaking new ground in
recognizing that Batson requires a more searching examination of prosecutorial
use of preemptory challenges.
But there was one bigger surprise at the argument: For the first time since
2016 (which itself marked the end of a 10-year silence), Justice Thomas asked
questions. Less surprising was that he directed his concerns about
discriminatory juror-striking not to the state but to defense counsel, asking
about her use of preemptory challenges: “And what was the race of the jurors
struck there?”, Justice Thomas asked. (The answer was white, which had nothing
to do with the issue before the Court and was to be expected since virtually
all black jurors had been eliminated by that point.)
The ‘D.C. Snipers’ and LWOP In the fall of 2002 the Washington, D.C.
metropolitan area was terrorized by a series of random shootings at the hands
of what were dubbed the “D.C. Snipers.” Lee Boyd Malvo, who was 17 at the time,
and John Muhammad, a father-like figure to Malvo, ultimately were arrested and
charged in the attacks, which left 12 dead and 6 seriously injured. In separate
cases in Maryland and Virginia, Malvo pleaded guilty and was sentenced to life
in prison without parole (known in the criminal-justice community as LWOP).
Subsequently, the U.S. Supreme Court issued a series of seminal rulings
limiting the sentences the Constitution permits to be imposed on juveniles.
First was Roper v. Simmons, 543 U.S. 551 (2005), in which the Court held that
juveniles could not be sentenced to death. 5 years later, in Graham v. Florida,
560 U.S. 48 (2010), the Court held that “[t]he Constitution prohibits the
imposition of a life without parole sentence on a juvenile offender who did not
commit homicide.” And 2 years after that, in Miller v. Alabama, 567 U.S. 460
(2012), the Court held that a juvenile convicted of a homicide cannot receive a
mandatory sentence of life without parole. Finally, in 2016, the Court held in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller’s bar on mandatory
LWOP sentence for juveniles applied retroactively to juvenile offenders whose
convictions and sentences were final when Miller was decided.
In light of these decisions, Malvo filed a federal habeas petition in the
Eastern District of Virginia seeking to vacate his life-without-parole
sentence. At the heart of the dispute about that sentence is whether Miller’s
rule is limited to situations where an LWOP sentence is “mandatory” or covers
all situations in which juveniles receive an LWOP sentence. This distinction
arises in Malvo’s case because Virginia’s Supreme Court has construed the
state’s sentencing laws to authorize trial courts to suspend in whole or in
part life sentences, arguably making LWOP sentences there not mandatory. The
Fourth Circuit, however, found that Miller’s protection extends to all LWOP
sentencing regimes: “[A] sentencing judge also violates Miller’s rule any time
it imposes a discretionary life-without-parole sentence on a juvenile homicide
offender without first concluding that the offender’s crimes reflect permanent
incorrigibility, as distinct from the transient immaturity of youth.”
On March 18, two days before hearing argument in the Batson case out of
Mississippi, the Supreme Court agreed to review the LWOP issue presented by
Malvo’s sentence. This sets the stage for yet another important ruling about
the Constitution’s protections of juveniles facing severe criminal sentences.
Dementia and Execution
As interesting and important as are the life-without-parole and Batson cases
now before the Supreme Court, the most intriguing death-penalty development
came with the Court’s February 27 decision in Madison v. Alabama, 139 S.Ct. 718
(2019). In 1985 Vernon Madison killed a police officer during a domestic
dispute and was sentenced to death. While awaiting execution, Madison developed
dementia, which meant among other things he had no memory of the murder for
which he was sentenced to die.
Following this change in his condition, Madison filed a habeas petition
contending that executing him would violate the Eighth Amendment. The Eleventh
Circuit agreed, but in 2017 the Supreme Court summarily reversed, holding that
the claim that the Constitution bars executing one who does not remember his
crime was not “clearly established,” a high standard that a 1996 statute
imposes in death-penalty habeas cases.
Alabama then set a 2018 execution date, and Madison filed a new challenge in
state court, which summarily rejected it. Madison filed a stay request and a
petition for certiorari directly with the Supreme Court, which granted the stay
on the day of the scheduled execution and agreed to hear his case.
Liberated from the “clearly established” standard since Madison’s case now was
on direct review, the Court explained that the law governing his claim that his
dementia barred him from being executed was relatively straightforward. As the
Court explained, the “critical question” under prior Supreme Court precedent
addressing the constitutionality of executing the insane or those suffering
“gross delusions” from “extreme psychosis,” is whether a prisoner’s mental
state is so distorted by a mental illness that he lacks a rational
understanding of the State’s rationale for his execution. Or similarly put, the
issue is whether a prisoner’s concept of reality is so impaired that he cannot
grasp the execution’s meaning and purpose or the link between his crime and its
punishment.
In light of this focus on comprehension of the reason for being executed, the
Court reasoned, two principles emerged that bore directly on Madison’s lost
memory and his dementia. First, the mere fact that a death-row inmate does not
recall his crime does not bar his execution. While “it offends humanity to
execute a person so wracked by mental illness that he cannot comprehend the
meaning and purpose of the punishment,” moral values “do not exempt the simply
forgetful from punishment.” That Madison could not recall his crime therefore
provided no basis for blocking his execution.
Conversely, an inability to comprehend the reasons for one’s execution renders
that execution unconstitutional, regardless of whether that inability arises
from insanity, gross delusions, or any other cause: “Psychosis or dementia,
delusions or overall cognitive decline are all the same …, so long as they
produce the requisite lack of comprehension.” Given this, that Madison suffered
from dementia rather than psychosis or insanity did not disqualify him from
Eighth Amendment protections. The Court then remanded the case to the Alabama
courts to determine whether Madison, in his new condition, was able to
comprehend the reason for his execution.
All of this seems relatively straightforward until you get to the dissent and
focus on the Justices who constituted the majority. That dissent, authored by
Justice Alito and joined by Justices Thomas and Gorsuch, opens with the
protest, “What the Court has done in this case makes a mockery of our Rules.”
From there it explains that Madison’s petition focused solely on the question
whether loss of memory of one’s crime barred execution and notes that was the
only question the Court had agreed to review. Once the Court had done so, the
dissent charges, “counsel abruptly changed course” and relied on their claim
that the Alabama courts had erred because they had ruled Madison was not
entitled to relief because he suffered only from dementia. “Counsel’s tactics
flagrantly flouted our Rules,” but “the majority rewards counsel’s trick.”
The dissent’s denunciation of the majority is particularly striking when one
focuses on those constituting the majority. As would be expected, Justices
Ginsburg, Breyer, Kagan, and Sotomayor were 4 of the 5 Justices. Justice
Kavanaugh arrived too late to participate. That left one Justice to provide the
5th and decisive vote: Chief Justice Roberts.
Looking Forward
Death-penalty cases, with their life-and-death consequences and underlying
dynamics of race and power in the criminal-justice system, are the most
important disputes that come before the Supreme Court. Moreover, we find
ourselves at a juncture where President Trump’s appointments to the Court
threaten to cast a long shadow over constitutional protections for many years
to come. One can only hope that, notwithstanding this threat, the Court will
continue to recognize the critical importance of death-penalty protections. And
as his vote in Madison may indicate, Chief Justice Roberts looms as a possible
safeguard against a broad curtailing of civil rights and civil liberties.
(source: Christopher Dunn is the legal director of the New York Civil Liberties
Union----New York Law Journal)
********************
Discriminatory Use of Death Penalty Against Gays Raises Concerns Globally and
in the U.S.
As human rights activists raise alarms about a new law in Brunei that would
punish homosexuality by death by stoning, the U.S. Supreme Court considers
whether to hear a case in which jurors who exhibited anti-gay bigotry sentenced
a gay defendant to death. Charles Rhines (pictured), a South Dakota death-row
prisoner, is asking the U.S. Supreme Court to review his case, after a lower
federal court denied him the opportunity to present juror statements showing
that homophobic prejudice played a role in his death sentence. Leading civil
rights organizations, including the NAACP Legal Defense and Educational Fund,
American Civil Liberties Union, and Human Rights Campaign, have asked the Court
to hear the case. Meanwhile, on April 3, 2019, Brunei will institute new laws
that will make homosexual sex punishable by death. Brunei’s action has drawn a
sharp rebuke from United Nations officials, international human rights groups,
and activists—including actor George Clooney and musician Elton John, who are
calling for a boycott of properties owned by the Sultan of Brunei.
Charles Rhines filed a petition in the U.S. Supreme Court in February 2019
seeking review of his case after a split panel of the U.S. Court of Appeals for
the Eighth Circuit voted 2-1 not to hear his appeal. The civil rights
organizations filed supporting briefs on March 25 and the Court is scheduled to
consider Rhines’ petition on April 12. At Rhines’ trial, prosecution witnesses
testified that he was gay and, according to jurors, “[t]here was lots of
discussion of homosexuality” during sentencing deliberations. “There was a lot
of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe
that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that 1
juror said, “If he’s gay, we’d be sending him where he wants to go” by
sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a
sworn statement, “We also knew he was a homosexual and thought he shouldn’t be
able to spend his life with men in prison.” South Dakota prosecutors have asked
the Supreme Court to refuse to consider the civil rights groups’ briefs,
calling the federal defenders office representing Rhines “an extremist
organization” and saying the petition should “not become a cause célèbre for
making Rhines of all people a false prophet of homosexual rights.”
In 2017, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes
a clear statement that indicates he or she relied on racial stereotypes or
animus to convict a criminal defendant, the Sixth Amendment requires ... the
trial court to consider the evidence of the juror’s statement and any resulting
denial of the jury trial guarantee.” Rhines’ lawyers are advocating that the
Court extend that ruling to include juror bias against a defendant’s sexual
orientation. In an amicus brief, the NAACP Legal Defense Fund wrote, “Just as
the Constitution does not permit a person to be sentenced to die because of his
race, it should not permit a person to be sentenced to die because of his
sexual orientation.” A brief submitted by seven LGBTQ rights organizations
said, “[b]ias based on sexual orientation in jury deliberations reinforces
historical prejudice against lesbian, gay, and bisexual people and undermines
the integrity of our judicial system.”
Anti-LGBTQ use of the death penalty came under renewed international scrutiny
as Brunei prepares to put a new law in place that would make adultery and
homosexual sex punishable by death by stoning. U.N. High Commissioner for Human
Rights Michelle Bachelet called the law “cruel and inhuman,” “draconian,” and
“a serious setback for human rights protections.” Actor and activist George
Clooney urged a boycott of hotels owned by Brunei’s monarch, Sultan Hassanal
Bolkiah. In an op-ed for Deadline, Clooney wrote, “every single time we stay at
or take meetings at or dine at any of [the Sultan’s] 9 hotels we are putting
money directly into the pockets of men who choose to stone and whip to death
their own citizens for being gay or accused of adultery.” Musician Elton John
joined Clooney’s call for boycotts, saying, “Discrimination on the basis of
sexuality is plain wrong and has no place in any society.” “I believe that love
is love and being able to love as we choose is a basic human right,” John said.
(source: Death Penalty Information Center)
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