August 22
OHIO:
Ohio's Republican House speaker says he's 'less and less supportive' of the
death penalty
Amid concerns about finding a constitutional execution drug, Ohio House Speaker
Larry Householder says he's "less and less supportive" of the death penalty.
"I'm probably like most Ohioans. There was a time that I was extremely
supportive of the death penalty," Householder told reporters Tuesday. "But as
time's gone on, I've become less and less supportive."
Householder cited the high cost of executing death row inmates and the
inability to find execution drugs as 2 reasons for his shifting support. The
cost of the death penalty is about $3 million per inmate when you factor in
appeals and court battles, a 2016 Susquehanna University study found.
"It's just becoming more and more difficult to do and it's more and more
expensive," he said.
Ohio's executions are on hold while prison officials come up with an option
that passes constitutional muster. So far, nothing has been proposed.
Householder, along with Ohio Senate President Larry Obhof, will control how the
debate on the future of the death penalty moves forward. Right now, Householder
said he's waiting on Ohio Gov. Mike DeWine for a viable solution to execute
prisoners.
What isn't a solution? A recent proposal from Rep. Scott Wiggam, R-Wooster, to
use fentanyl seized from police in state executions. Householder agreed with
DeWine and addiction professionals that the proposal is problematic.
"I felt that I might have some issues with that constitutionally," Householder
said. "I don't know that you can take a drug that's been seized in an illegal
seizure and use that."
(source: cincinnati.com)
*********************
Canton man waiting 35 years for execution of dad’s killer----‘It would be like
the end of a chapter going back to when I was a little kid,’ Matt Rowan says of
execution of his father’s killer.
Matt Rowan walked up to the gravesite of the father he never knew.
Standing at his tombstone, the 41-year-old Canton man didn’t reflect on
memories of his dad, Herbert M. Rowan III. The son doesn’t have any, and most
photos of him were lost in a fire.
The elder Rowan was murdered in 1984, when Matt was 6.
All that’s left for Rowan are his mother’s stories about his dad. Most tangible
is the grave marker he visits at Forest Hill Cemetery, inscribed with his
father’s name, the identical dates of his birth and death and a notation for
his service in the U.S. Navy.
It’s just hard not knowing who your dad was and what he looked like,” Rowan
said.
He lost that opportunity when David A. Sneed robbed and shot Herbert Rowan,
then 26, in the fall of 1984 before ordering his accomplice to shoot Rowan in
the head a 2nd time. The weighted body was dumped over a bridge into
Nimishillen Creek.
Sneed was convicted in 1986 of aggravated murder and aggravated robbery in
Rowan’s death.
Roughly 35 years later, the son seeks what he hopes is a degree of closure:
Sneed’s execution.
“It would be like the end of a chapter going back to when I was a little kid,”
he said while standing in the the cemetery on an overcast morning recently.
But he says the planned execution has brought him only more frustration.
Sneed, 57, had been scheduled to die a year ago before it was delayed. He’s now
set for execution Dec. 9, 2020, according to the Ohio Department of
Rehabilitation and Correction.
The son expects another postponement.
“Every time I get my hopes up ... it gets pushed to the back-burner again, and
it’s going to keep getting pushed back.”
Fred Scott, a Stark County assistant prosecutor, agrees.
“The (execution) date is meaningless,” he said.
“Everybody’s in a holding pattern until the legislature approves either a
protocol for the drugs (used for lethal injection) or a new method,” said
Scott, who heads the criminal division of the prosecutor’s office.
Ohio’s last execution, of Robert Van Hook, occurred in July 2018. There are 24
inmates scheduled for execution through 2024, according to state records.
Besides Sneed, four other Stark County defendants are on death row: John
Gillard, Edward Lang III, Michael D. Scott and James Mammone. Only Sneed has an
execution date, and a Stark County defendant hasn’t been executed for 65 years.
Gillard was convicted in 1985, one year earlier than Sneed. Scott was convicted
in 2000; Lang, 2007; and Mammone, 2010.
Scott, citing the uncertainty of the death penalty in Ohio, said the Stark
County Prosecutor’s Office hasn’t requested an execution date for Scott, even
though he has gone through the state and federal appeals process.
Death penalty in limbo
Ohio’s inability to obtain drugs for lethal injection has delayed scheduled
executions, Gov. Mike DeWine said last month.
The Republican said state prison officials are finding it impossible to line up
any company willing to supply drugs for a new lethal-injection method to
replace a protocol essentially declared to be cruel and unusual punishment, The
Columbus Dispatch reported.
DeWine said the drugmakers have told the state that if they suspect any of
their products would be used in executions, they would stop selling to the
state altogether, potentially depriving Ohioans of important medicine,
including people who get drugs through state veteran homes and local
addiction-service providers, the newspaper reported.
As a result, DeWine announced he again was delaying the execution of Warren
Keith Henness, a Columbus man convicted in a 1992 slaying. Henness had been
scheduled to die Sept. 12; his new date is May 14, 2020.
DeWine said he would talk to General Assembly leaders about whether legislation
allowing a different execution method should be pursued.
‘Out of our hands’
Herbert Rowan’s son is an example of the loved ones left behind in death row
cases. Others directly involved with Sneed’s case — attorneys, jurors, the
judge — long ago moved on.
But Rowan has a profound void in his life, and justice feels elusive, he said.
Stark County Prosecutor John Ferrero empathizes with Sneed and others like him.
“It’s discouraging because we have to have contact with the victims,” he said.
The prosecutor acknowledged that sometimes his staff loses touch with the
relatives of victims in death row cases because they move out of state or for
other reasons. “We get calls asking, ‘What’s the status?’ or ‘What’s going on?’
and it’s really discouraging, but it’s out of our hands.
“Many years go by, and a lot of people forget about the victims,” Ferrero said.
“We have to keep that alive, and we have to see it through to the end.
“It’s frustrating because the victim’s family wants finality,” he said. “And as
long as (the execution day is) hanging out there, there’s no finality.”
Rowan said most people familiar with the Sneed case don’t even know the victim
had a son.
Through his mother, Jill Shamp, of Canton, he has learned as much as he can
about his father.
But there’s a question only Sneed can answer for Rowan: “I just want to know
why” he killed his father.
Shamp said she and Herbert Rowan were divorced at the time of his death.
Herbert was living in Chicago and had been visiting Canton when he was murdered
on his birthday.
The appeals and delays have caused the 58-year-old Shamp to question the
fairness of the criminal justice system. “They have more rights than the
victims,” she said of death row inmates.
Pursuing capital cases
Ferrero said his office pursues the death penalty when cases qualify under the
law.
After evidence is presented, it’s up to the grand jury whether to indict a case
as death penalty eligible, he said.
Legislators ultimately must decide whether to seek alternatives to lethal
injection or to end capital punishment altogether in Ohio, Ferrero said.
“It costs a lot of money,” the longtime prosecutor said. “A lot of taxpayer
money is involved. The No. 1 reason you have it is as a deterrent to commit
these crimes, and if you have constitutional issues that are going to be
popping up time after time, maybe the state shouldn’t have it.
“But it’s on the books in Ohio now, and we as prosecutors (in Stark County)
will pursue it when cases qualify under the statute.”
Scheduling executions
Executions dates are set by the Ohio Supreme Court, said spokesman Edward
Miller.
Death penalty cases are appealed to the state’s high court. Following a review,
the court issues an opinion, Miller explained.
If the decision is to affirm the imposition of the death sentence, the court
schedules an execution date. The appellant, however, may then file a motion to
stay the execution date so that he or she can pursue other delays through both
state and federal court proceedings, Miller wrote in a email.
If the Ohio Supreme Court grants the motion for stay, then a new execution date
will need to be set. The revised date generally is scheduled only after a
county prosecutor’s office (in the jurisdiction of the capital case) files a
motion requesting it.
‘Death is different’
Former Stark County Common Pleas Judge Lee Sinclair is an expert on death
penalty cases.
He presided over capital cases as a trial judge and teaches classes on the
subject to judges from across the country. He also has been a key contributor
to a textbook about presiding over death penalty cases.
Sinclair, 67, said he’s not surprised 2 Stark County death penalty convictions
from the 1980s are still awaiting execution. He attributes the delays to the
lengthy appeals process, legal challenges to the death penalty itself and
Ohio’s inability to acquire drugs for use in lethal injection.
“It goes back to the United States Constitution written (more than 200 years
ago),” Sinclair said. “It prohibits ‘cruel and unusual’ punishment, but it
doesn’t elaborate, so that’s open to interpretation.”
The legal standards for death penalty cases are extraordinarily high, and the
punishment is reserved for the worst criminal cases, Sinclair said.
Capital punishment is also a polarizing issue, Sinclair observed. That’s
reflected by the number of states not practicing it, he said.
Waiting ... waiting ... waiting
In the meantime, as legal arguments are made and executions are delayed, Matt
Rowan is left waiting for what he considers justice.
Rowan said he wants to attend Sneed’s execution at the state’s Death House and
hear the last words of the man who took his father’s life more than 3 decades
ago.
“I just feel like it’s about time that due process is done,” he said. “The
judge ordered it, so it should be done.”
(source: indeonline.com)
********************
Warren County prosecutor: Execute prison murderers before they kill again
Execution is the best option for murderous inmates who continue to kill after
being put behind bars, Warren County Prosecutor David Fornshell said.
Fornshell offered his observation as he recounted the case against a third
former Warren County prison inmate indicted in recent years for murdering
another inmate.
Joel M. Drain — indicted this week — joins Casey Pigge and Jack Welninski as
inmates with little or no expectation of ever getting out of prison accused or
convicted of killing another inmate at a state prison in Warren County.
“If they’re not executed, they will kill other inmates or corrections officers
the minute they’re given the opportunity,” Fornshell said. “They’re known
killers, and they are known killers behind bars.”
In May, Pigge, 31, had 32 years tacked onto his life in prison without parole
term for stabbing a guard 32 times while in prison in Lucasville.
Pigge had already been convicted of three aggravated murders in three counties:
his ex-girlfriend’s mother, his cellmate at Lebanon Correctional, Luther Wade
of Springfield, and a fellow inmate on a prison transport bus, David Johnson.
Pigge cannot be sentenced to death under Ohio law due to a determination about
his mental limitations.
If convicted, Drain — like Welninski — faces the death penalty.
Hannah Kubbins, program director for Ohioans to Stop Executions, said any
suggestion of expanding the death penalty was flawed.
“Our death penalty system is so broken. Expanding it would only expand the
problems,” Kubbins said.
“Instead of spending time on expanding it, we need to talk about wrongful
conviction, we need to talk about victim’s families, we need to talk about the
exorbitant cost of death cases versus non death cases, and we need to talk
about the trauma on law enforcement.”
Drain, 37, was indicted on charges of aggravated murder, murder while under
detention, possession of a deadly weapon and specifications for repeat murder
and repeat violent offender.
On April 13, Drain allegedly murdered prisoner Christopher M. Richardson at
Warren Correctional Institution, one of two prisons outside Lebanon.
On Tuesday, Fornshell provided details of Drain’s brutal multi-part assault on
Richardson after the indictment was reported.
Drain allegedly beat Richardson with the motor from a desk fan, stomped on his
throat and kicked a pencil into his head.
“It’s a blood bath in that cell,” Fornshell said.
Richardson was serving a 4-year sentence for aggravated arson. He set fire to
his mother’s home in January 2017, Delaware County court records show.
Drain is already serving 30 years to life for aggravated murder, theft and
felonious assault in Hancock County.
Drain is now in the Ohio Penitentiary near Youngstown, the state’s super max
security prison, along with Welninski and Pigge.
Welninski, 33, is scheduled for a 2-week capital murder trial in August in
Warren County Common Pleas Court.
Welninski is accused of killing cellmate Kevin Nill, 40, of Piqua, less than an
hour after they were put together in a cell in at Lebanon Correctional
Institution on April 23.
Nill was serving an 18-month sentence for attempted domestic violence involving
an adult family member, but Welninski told investigators he decided to kill
Nill after being told he was a child molester.
Welninski was serving a 69-year prison sentence after being convicted in Wood
County for the 2015 attempted murder of an Oregon, Ohio, police officer.
Earlier this summer, Drain’s alleged prison murder came to light when he wrote
a letter to the Columbus Dispatch confessing to the killing and claiming it was
captured on video surveillance cameras, the newspaper reported.
“He sent all kinds of letters to all kinds of entities,” Fornshell said,
“Different types of outfits, government entities, private entities.”
Fornshell declined to elaborate on the number or recipients.
Fornshell recalled being called to the prison after Richardson’s body was found
in Drain’s locked cell. A guard noticed blood after Drain walked from his cell
to the downstairs “range” or floor and followed the trail back to the cell.
Investigation determined Drain invited Richardson into his cell “ostensibly for
the purposes of smoking K2,” synthetic marijuana.
Fornshell said Drain decided to kill Richardson after he declined to help Drain
kill another inmate so he could be transferred to the super-max outside
Youngstown.
“None of these defendants had any realistic chance of getting out of prison,”
the prosecutor said. “When they don’t get their way … they immediately resort
to killing someone so that they can be transferred.”
Fornshell also charged Drain, Pigge and Welninski, and other murderous inmates
“are picking out and targeting inmates who they think are easy marks.”
Such murderers should be executed before they strike again, Fornshell said.
Life in prison without parole is sufficient in some murder cases, but in cases
such as those involving Drain, Welninski and Pigge, Fornshell said the death
penalty should used.
“Give it swiftly,” he added, to limit the chances others die before the
sentence is carried out.
(source: Dayton Daily News)
******************
Ex-death row inmate awaiting deportation to Jordan
A Jordanian national who spent two decades on Ohio's death row for an alleged
murder-for-hire plot is now awaiting deportation, after pleading guilty to new
charges.
Ahmad Issa, 49, is being held at the Butler County Jail, awaiting deportation
proceedings, officials said. A federal appeals court last year overturned his
conviction and death sentence, and the U.S. Supreme Court this year declined to
consider the case.
On Friday, Issa pleaded guilty in Hamilton County Common Pleas Court to
involuntary manslaughter and was sentenced to 13 years in prison. He has been
incarcerated for more than 21 years, so he already served his sentence. But as
part of the plea deal, Issa agreed to be deported to his native country.
Issa was 1 of 3 people charged in the 1997 killings of Maher Khrais and his
brother, Ziad, outside the Westwood convenience store Khrais owned with his
wife. The brothers were from Jordan, as well.
Prosecutors said Khrais’ wife, Linda, offered Issa money to kill her husband.
Issa then hired another man, Andre Miles, who fatally shot the brothers using a
Mak 90 rifle Issa provided him, according to prosecutors.
Issa, Miles and Linda Khriss all were charged with murder and all faced the
death penalty. Their separate trials ended differently, however.
Khriss was acquitted of all charges. Miles, now 45, was found guilty and
sentenced to life in prison. Issa was convicted of aggravated murder and
sentenced to death.
Miles, who prosecutors said had agreed to testify against Issa, refused to
testify at Issa’s trial. Khriss testified in her trial and denied hiring anyone
to kill her husband.
At Issa's 1998 trial, prosecutors elicited testimony from 2 teen siblings who
were Miles’ friends. One said Miles told him that “Issa had paid him to kill
someone,” according to court documents, and later called and told him he had
killed the brothers.
Documents also described Miles’ statements to them about how the killings
unfolded.
The case made its way to the federal 6th Circuit Court of Appeals, which said
the siblings' hearsay testimony violated Issa’s right to confront his accuser.
"Miles' statements are the only direct evidence implicating Issa in a murder
for hire," the 6th U.S. Circuit Court of Appeals' opinion says.
(source: Cincinnati Enquirer)
TENNESSEE:
Execution Shift -- Conservatives argue death penalty is a ‘prime example of
bloated, broken government.’----State officials began executing death-row
inmates again here last year — another just last week — but a group of
conservatives is speaking out against the death penalty and says changes on it
are afoot in red-state legislatures.
Stephen Michael West was executed in Nashville last Thursday. He was convicted
in the 1986 murders of a mother and her 15-year-old daughter in Union and for
raping the daughter.
West was the 5th inmate to be executed here since state officials began
scheduling executions again last year. Before that, the state's last execution
was in 2010.
Next month, Tennessean Amy Lawrence will attend the first annual national
meeting of Conservatives Concerned About the Death Penalty. She spoke with us
about her group and its aims. — Toby Sells
Memphis Flyer: You said the death penalty violates the basic tenets of your
group's beliefs. How?
Amy Lawrence: I believe that the core tenet of conservatism is small, limited
government, and as conservatives, we apply this concept to a variety of issues,
whether that be taxation, health care, or regulations. This is the same tenet
that should be applied to capital punishment.
Simply put, the death penalty is anything but small, limited government. It is
a prime example of a bloated, broken government program. It is costly, it risks
executing an innocent person, and it leaves the ultimate power over life and
death in the hands of a fallible system.
MF: You also said that "murders should be followed with swift and sure
justice." What does that justice look like to you?
AL: Well, it sure doesn't look like years of appeals and decades of court
proceedings for the victims' family members.
The death penalty does not provide swift and sure justice but instead drags
families through decades of litigation, where, in at least half the cases in
Tennessee, the sentence is overturned and the convicted receives a life
sentence anyway.
Life without parole begins as soon as the trial is over and allows families to
at least have some legal finality.
MF: What alternatives to the death penalty does your group hope lawmakers will
consider?
AL: Tennessee already has a life sentence of 51 years before parole eligibility
and life without parole, which does not allow for parole ever. These are the
two sentences that the majority of murderers already receive.
MF: Is an alternative to the death penalty a hard sell in the broader
conservative community?
AL: I really focus on what unites conservatives on this issue — limited
government, fiscal responsibility, and pro-life stances.
We know that government and human decisions are error-prone. We simply cannot
guarantee that we can carry out capital punishment with 100 % accuracy. While
the punishment might be just in some circumstances, we cannot carry it out
justly.
We also have limited resources, and with death sentences costing $1 to $2
million more than life without parole, I think the majority of people would
support having those resources go toward victims' compensation, law
enforcement, and mental health programs.
(source: memphisflyer.com)
MISSOURI:
Death penalty cases in Greene County are rare according to prosecutors
A man in the US, illegally,facing multiple, 1st-degree murder charges in Greene
County, faces the death penalty if convicted.
Luis Perez is accused of fatally shooting his 2 roommates who kicked him out.
Days later he killed the woman who gave him the gun to murder the roommates.
"It's a rare thing for us to do," said Greene County Prosecutor Dan Patterson.
Patterson said it's not common for his office to seek the death penalty in
murder cases.
"I think the last one would have been the Craig Wood case, the Hailey Owens
case that occurred in 2014. There was, also, I think, just prior to that, the
Dianne Staude case. There's some others prior to that. But it is a rare thing
for use to do," he said.
A lot of careful consideration goes into making this decision.
"We look at what are the statutory elements of the crime. What are the facts of
the crime, what is that criminal history and those sorts of things. Someone's
status is not something we would consider," explained Patterson.
Christian County Sheriff Brad Cole said, "We enforce them fairly across the
board. I don't care what race, what nationality, male, female, I don't care
what you are. We have laws and they're there to abide by."
Cole is part of a national board of sheriffs who work with border patrol on
immigration security. He believes Luis Perez should have been kept in jail in
New Jersey on an immigration hold but was released just before shooting three
people to death in Springfield.
"Anybody who wants to come to the United States, to live the American dream, if
they want to come and do it in the manner that is set forth in the constitution
welcome them here. They make our country a better country. But don't bring your
problems here and cause problems and break laws and kill people and expect not
to be held accountable for it," he said.
"When you have a case like this, with multiple victims, when you have a case
like this where a witness to some of the homicides was murdered, those are the
kinds of cases that we look at," said Patterson.
Three other people have been charged in connection with last year's shooting
deaths of Josh Hampton, Steven Marler and Sabrina Starr.
Only two, Aaron Anderson and Nyadia Burden face first-degree murder charges.
The prosecutors office hasn't made a decision on whether or not to seek the
death penalty in their cases.
Luis Perez is being held in the Greene County Jail without bond and on an
immigration hold.
He'll be back in court in October.
(source: KSPR news)
OKLAHOMA:
Officials seek death penalty in Duncan double murder case
Officials are seeking the death penalty in the case of a Duncan man accused in
a double murder.
Shane Kirk is charged with 2 counts of murder in the deaths of his wife and
father-in-law.
According to an affidavit, the District Attorney claims the murders were quote,
“especially heinous, atrocious or cruel” and that there is a probability that
Kirk could commit other acts of violence.
Kirk was found competent to stand trial last November.
Police say he was arrested in November 2017 after Jessica Kirk and Dennis
Duncan were found shot and killed at a home on Mimosa Avenue.
A trial date has not been set, but a preliminary hearing is set for this
Thursday at the Stephens County Courthouse.
(source: KSWO news)
WYOMING:
Wyoming DA seeks death penalty in Montana woman's killing
A Wyoming prosecutor plans to seek the death penalty for the rape and killing
of a Montana woman more than 30 years ago.
KTWO-AM reported Tuesday that Natrona County District Attorney Dan Itzen will
seek capital punishment for 74-year-old Dale Wayne Eaton.
Eaton was convicted in 2004 for the 1988 killing of 18-year-old Lisa Marie
Kimmell of Billings, Montana.
Kimmell disappeared while driving across Wyoming and her body was found in the
North Platte River.
Eaton was connected to the case through DNA evidence and spent a decade on
death row before a federal judge overturned his death sentence in 2014.
A federal appeals court ruled in July that Eaton can still be subject to the
death penalty.
Eaton's attorney did not immediately respond to a request for comment
Wednesday.
(source: Associated Press)
USA:
The Return of the Federal Death Penalty Is an Attack on Democracy
The “Justice” Department recently announced that U.S. Attorney General William
Barr has instructed the Federal Bureau of Prisons to change the federal
execution protocol to include capital punishment. For the first time in nearly
two decades, the federal government will carry out the death penalty. What does
this say about the time we live in? In this moment, in whose interest is the
death penalty to be exercised? In order to answer that critical question, we
need a realistic appraisal of the death penalty’s role in the U.S.
The Federal Bureau of Prisons bringing the death penalty back is not an
isolated phenomenon. It is one of many interlocking actions intended to protect
the poisonous economic and political systems that are undermining democracy.
The return of the death penalty is yet another signal that the state will not
hesitate to use extreme force to defend policies pursued over the past two
years which seem deliberately designed to remove basic protections from the
poorest, punish the most vulnerable, and make basic human rights a privilege to
be earned.
For over 5 decades, the overall policy responses to the immense wealth of the
few and the squalor and deprivation in which vast numbers of Americans exist
has been willfully neglectful at best. Yet the change of policy direction since
president Trump has come into office is worsening this situation and ensuring
that the U.S. remains divided and unequal. Despite misleading rhetoric about a
booming economy and low unemployment numbers, remarkably little attention has
been given to the Trump administration’s radical program of financial,
environmental, health and safety deregulation that eliminates protections
mainly benefiting the middle classes and poor.
Bringing back federal executions is shorthand, for those in the know, for an
ongoing and brutal larger policy shift. It’s shorthand that tells us more and
more social protections will likely disappear in the years ahead, which will
fuel more social dissatisfaction. It’s shorthand for the tragic targeting of
those most affected by policies that further shred crucial dimensions of a
social safety net that is already full of holes.
Some assert that moments like this are automatically catalysts, sparking a
useful dialogue. I have found that this is not always true. We must
intentionally create spaces where people are willing to look at things in new
ways. Under the Trump administration, solutions to major domestic social
problems are seen to lie in tougher laws and more punishment, replicating the
old “law and order” spiel. This underscores Trump’s affection for a polarized
past, which hinders us as we reach for a transformative future. We cannot hide
from any of these hard truths. We have to name them and own them and change
them.
In whose interest is the death penalty to be exercised? Those moving full steam
ahead to make the U.S., which already leads the developed world in income and
wealth inequality, even more unequal. It is in the interest of the top 1 % of
the American population that owns nearly 39 % of the total wealth. It is in the
interest of those who seek to add 20 million people to the ranks of those
without health insurance. More generally, the Federal Bureau of Prisons
bringing back the death penalty is in the interest of defenders of the status
quo, and also of regression.
Bringing back federal executions is shorthand for an ongoing and brutal larger
policy shift.
Every fascist regime understands the rebellious potential of those cast aside
by society, and the political expediency of threats, coercion and the use of
force. The death penalty is an age-old tool of repression, and its return on
the federal level puts it firmly back in the toolbox. This bodes ill not only
for the poor and those clinging to the middle class, but for society as a
whole: Experience shows that vulnerable populations are often a testing ground
for policies and practices that are later applied more broadly, especially to
those who dissent against the status quo.
The problem is deeper than the Federal Bureau of Prisons bringing the death
penalty back. The death penalty’s return is a symptom of the extreme inequality
that actually signifies the transfer of economic and political power to a
handful of elites who inevitably use it to further their own self-interest, as
demonstrated in various countries around the world. The death penalty is not
just inhumane and a violation of human rights; it also threatens and undermines
democracy, and is a portent of more repression to come.
(source: Op-Ed; lacino Hamilton, truthout.org)
*******************
The Coming Fight over the Federal Death Penalty ---- The federal “machinery of
death” will begin to churn again in the age of Trump
The federal death penalty in America, unused since 2003, is plainly
constitutional. The most conservative Supreme Court in 80 years certainly will
say so when next asked. So there is every reason to think that in the next year
or so the federal “machinery of death” will begin to churn again in the age of
Trump. But there still are vital limitations to the scope of capital
punishment, restrictions set into law by recent Supreme Court precedent, and
those limits are about to be tested by a new wave of litigation crashing into
federal court in the wake of the administration’s announcement that it will
begin executing federal prisoners once again.
An early challenge came last week in Terre Haute, Indiana, the site of the
federal death row, where lawyers for a condemned inmate, Alfred Bourgeois, say
he cannot be executed because he is “intellectually disabled.” No one contests
his conviction, just the imposition of the death sentence against him following
a jury trial in Texas in 2014. It’s not hard to understand why the Justice
Department selected Bourgeois as one of the first five men it wants to execute.
He “physically and emotionally tortured, sexually molested, and then beat to
death his two-and-a-half-year-old daughter,” is how the feds’ press release
puts it.
Bourgeois claims that his intellectual disability has never been evaluated
under new Eighth Amendment standards imposed on states by the Supreme Court
since 2014.
His lawyers say those new state standards, all designed to make it easier for
the intellectually disabled to prevail on their claims, should spare his life.
If their evidence of his disabilities is as profound as they claim, they’re
right. Bourgeois claim that he’s too disabled to be killed by the government
last was heard and rejected by both a federal trial judge in Texas in 2011 and
by the 5th U.S. Circuit Court of Appeals in 2013. But when Bourgeois tried to
rely on the new precedent a few years ago, when he proactively tried to spare
himself from execution, the 5th Circuit rejected his claim. Because Bourgeois
had already raised his disability claim once before, the 5th Circuit concluded,
he was barred from raising it again.
Which means that unless a court intercedes between now and his scheduled
January 2020 execution, Bourgeois may be killed by the government even though
the Eighth Amendment, as now construed, precludes his execution. Even before
the Justice Department responds to Bourgeois’s new motion, responds that is
surely by arguing that Bourgeois does not merit the relief he seeks, the case
presents itself as a potential example of the hollowness of the law.
Will the justices really permit the execution of a disabled man not because he
hasn’t established his disability under current medical standards but rather
because he’s raising the issue too late or for the second time? If so, the case
may end up being less less about capital punishment and the Eighth Amendment’s
“cruel and unusual” clause and more about the absurd reach of the Antiterrorism
and Effective Death Penalty Act, a Clinton-era statute designed to limit the
post-conviction appeals raised by federal prisoners.
It is likely this dispute ultimately will be resolved by the justices in
Washington and the focus between now and then rests with three of the Court’s
Republican appointees. Chief Justice John Roberts has been consistently
inconsistent when it comes to this area of capital law and his vote likely will
determine Bourgeois’ fate. Roberts was not on the Court in 2002 when it decided
Atkins v. Virginia, the leading precedent here. In Atkins, the Court declared
for the first time that the Eighth Amendment bars the execution of
intellectually disabled prisoners whose cognitive functions would render their
executions ‘cruel and unusual.”
Atkins was never what it seemed to be, however. Like other monumental
constitutional rulings over the years (see, for example, Gideon v. Wainwright)
the Court’s majority came up with a compromise in which it recognized a right
but failed to guarantee a remedy. Atkins declared that no state could execute
the intellectually disabled but then left it to officials in each state to
implement their own standards for determining the definition of “intellectually
disabled.” So the most aggressive capital states (like Florida and Texas) used
cockamamie tests that virtually guaranteed executions for condemned inmates
whose disabilities were on the margins.
Which meant that the Court was required, a decade or so after Atkins, to
revisit its ruling. That gave us Hall v. Florida, a 2014 decision in which the
Court’s majority, led by Justice Anthony Kennedy, rejected Florida’s
categorical rule that any capital defendant deemed to have an IQ above 70 was
presumptively beyond the reach of Atkins’ safe harbor. Justice Samuel Alito
dissented in Hall, along with Roberts and Justice Clarence Thomas. In their
view, the majority in Hall inappropriately elevated the views of professional
psychiatrists over the views of state legislators who had ginned up Florida’s
dubious standard for defining “intellectual disability.”
Hall gave guidance to Florida judges but did little to help officials in other
states wrestling with the question of when a convicted murder was too
intellectually disabled to be put to death. So the Court next took up the
Atkins’ test in Moore v. Texas, a 2017 case involving convoluted standards used
by Texas judges. Again the Court sided with a convicted murder, again Roberts
dissented, and again he focused on what he saw as the Court’s judicial
overreach. “Clinicians, not judges, should determine clinical standards; and
judges, not clinicians, should de- termine the content of the Eighth
Amendment,” the chief justice wrote.
Roberts clearly is comfortable with Atkins. But not with Court meddling in
state interpretations of “disability.” What will that mean for Bourgeois, who
like Moore was evaluated under Texas’ old, discredited standards? The case is
not close on the merits. Bourgeois is entitled to the same rights, and
remedies, as Moore. But if Roberts is so inclined he can always fall back on
the damnable AEDPA, the statute that limits appellate review, and say that
Bourgeois loses on procedural grounds before he even gets to the merits. That
would be a shame, a tragedy, and an abdication of Roberts’ judicial
obligations. But that doesn’t mean he won’t do it.
The spotlight on the case also will fall on the newest justices, Neil Goruch
and Brett Kavanaugh, who were not on the Court for the Atkins, Hall, or Moore.
Both Gorsuch and Kavanaugh were on the Court earlier this year, however, when
the Court in an unsigned order again sided with Bobby Moore and against the
Texas appellate judges who had tried to countermand the Court’s 2017 ruling in
that case. But it’s hard to know what to make of either of their positions.
Kavanaugh didn’t take one, for starters. He didn’t join Roberts’ concurrence in
Moore II, which criticized the Texas court, or Alito’s dissent, which
criticized his colleagues.
Gorsuch did weigh in. He signed onto Alito’s dissent. It’s possible that
Gorsuch left himself wiggle room in Moore II to turn around in the Bourgeois
case. It’s also possible that by joining Alito he was signalling his discomfort
with the whole structure of the Court’s Atkins’ precedent. Gorsuch already has
revealed his willingness to permit executions even where they would cause
excruciating pain to the condemned. The smart money would bet on both he and
Kavanaugh hewing to the chillingly cramped view Alito and Thomas take of the
phrase “cruel and unusual punishment.” That might be bad news for Bourgeois,
for the constitutional concept of “evolving standards of decency,” for an
enlightened view of the Eighth Amendment, and for one of Justice Kennedy’s most
important legal legacies.
(source: rollingstone.com)
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