Sept. 2 TEXAS----new execution date Tony Ford has received an execution date for December 7; it should be considered serious. (source: RH) ********************* A Loss For Juvenile Justice It seems an impossibility that the anti-death penalty movement would share common ground with the Texas state legislature. Nevertheless, in the state that executes more criminals than any other, such an unlikely alliance has been forged. Governor Rick Perrys signing of legislation that would provide life without the possibility of parole as a sentencing option in capital cases was taken by the anti-death penalty movement as a victory, asserting that the existence of such an option presents a more tenable alternative to the jury-sponsored sanctioning of execution. However, this collaborative victory is a setback in the cause of juvenile justice. The bill, SB60, did not possess an exception for offenders who committed their capital crime prior to the age of 18. Supporters of the bill, which takes effect September 1, say the new law will provide juries in capital cases with a new sentencing option. But in the case of juvenile offenders who are tried and convicted in adult court, the law provides only one, slightly less draconian penalty. This past March the Supreme Court ruled, in Roper v. Simmons, that it was unconstitutional to execute juveniles. In response, Texas lawmakers passed legislation that requires juveniles convicted of a capital crime to serve life in prison with no chance for parole. While this has been classified by the public, with no small degree of participation from the anti-death penalty movement, as an act that was intended generally towards adult offenders, the primary motivation behind the bill was to provide a stiffer brand of punishment to a class of criminal who could no longer be executed by the state of Texas. Perry put on fast-track a legislative proposal by State Senator Eddie Lucio to implement a life- without-parole sentencing option within days of the Roper decision. A report from the Austin Chronicle stated that Lucio used the possibility of the 29 youth capital offenders being released as a result of their sentence commutation to persuade the legislature and the governor to pass the bill, leading the senator to state that if they had passed the measure a few years prior, "We wouldnt have 29 [youthful offenders] now with the possibility of parole in Texas." Prior to SB60 being passed into law, Texas prosecuted juvenile capital offenders in one of two ways. Historically, most juveniles accused of capital crimes were transferred to adult court where they were subject to adult prosecution, adult sentencing, and, as seen in the case of 13 youth offenders, execution by the state. The other way has come about in the past 10 years, where youth offenders convicted in a juvenile court are subject to a potential maximum of 40 years. Nonetheless, as a result of Texass system of blended sentencing, the convicted youth offenders split their incarceration time between juvenile and adult facilities and offenders as young as 16 can be moved into adult prisons. Texas legislators have been eager to point out that the advent of determinate sentencing has meant fewer juveniles being tried as adults. In 1994, the year before determinate sentencing was extended to capital crimes, 158 homicide cases were transferred to adult court. In 2002, the number dwindled to 18. However, in that same year, of the 48 dispositions that resulted in prosecutions, only 9 were conducted in juvenile courts. The previous year, in 68 prosecutions, 10 were in juvenile court and 34 were in criminal court with youths tried as adults. This in spite of the fact that only 17 and 12 juveniles were charged with capital murder in 2001 and 2002 respectively. But what puts Senator Lucios advocacy into the realm of the demagogic is the notoriously low rate at which paroles are approved within the Lone Star State. At one point the jurisprudential history of Texas had a fairly high parole approval rate, exceeding 79 %. But the "truth-in-sentencing" movement of the mid-1990s, which was focused on increasing the amount of actual time served by criminals, drastically modified the face of sentencing in the state. The combination of the federal government attaching contingencies of longer sentences to grant money and the Texas state legislature taking on this endeavor with a certain verve created the current reality: parole no longer resides in the world of probability, but is firmly affixed in the finite area of infinitesimal possibility. In 1996 the parole approval rate nationally was at 44 percent while in Texas it was only 21 %. Today, the parole approval rate is 25 percent and the rate for violent offenders, which would include capital offenders, is 22 %. Additionally, a parolee within this sliver would have served an average of 61 % of his or her sentence. Generally, violent offenders by the end of the 1990s served just under 76 % of their sentence with a projected future figure of over 89 %. In this landscape, it is highly unlikely that those who were given a reprieve from death would ever spend a day of their borrowed time outside of prison, as Senator Lucio suggested. Perversely, the previous sentence of life with the possibility of parole in 40 years coupled with inordinately low parole approval rates almost entirely denied the potential for separate, precise justice. Now as a result of SB60 its denial is unequivocal. In writing for the majority of the Supreme Court in Roper, Justice Kennedy spoke to the difficulty that practitioners have in determining the existence of anti-social, psychopathic tendencies in a youth offender. Kennedy asserted that because of this difficulty doctors typically do not make these diagnoses prior to the subject reaching the age of 18. What is also relevant is the potential for such an offense to occur as a result of an impulse control disorder, or intermittent explosive disorder, which culminates in uncontrolled acts of violence, possibly of an extreme nature, according to the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders). The current sentencing law ignores these realities and regards an offender with an undeveloped mental capability the same as one who exhibits psychopathic behavior - the same, even, as a rational adult. What Texas has done, in the past and now, is fall into the trap of allowing the gravity of murder to overwhelm the notion that normally exists with youth offenders; that they do not bear the same degree of culpability that we expect from adults. This philosophy goes back to the genesis of juvenile justice, the first juvenile court in Illinois in 1899, and the theory that when addressing a youth offender the state should not act as the ultimate purveyor of justice, rather as a surrogate parent. In 1967 the Supreme Court substantiated this theory in In Re Gault where the Court held that juveniles are subject to the same constitutional rights in court even when they are tried in a separate juvenile proceeding. However, where youth capital offenders are tried and summarily punished as adults, the only way to ensure separate justice is through the application of parole. When applied properly, parole is a tool that can separate those who should remain in prison from those for whom this engenders no benefit to the prisoner or society. But it is not only the Texas legislature that has succumbed to this perceptual trap. While only 34 % of Texans polled were in favor of the death penalty for juveniles, 78 % of Texans favored life without the possibility of parole as a sentencing option. This statistic was utilized by Senator Lucio to argue in favor of SB60 and it likely provided a degree of political cover to ensure the bills passage. The reason that Texas was 1 of 3 states not to have the life-without-parole option was to increase the prospect of a jury rendering execution as the proper punishment. Based on the preeminent place that Texas holds for state-sponsored executions, it was a fairly successful method. Governor Perry and the legislature have effectively overturned the Supreme Courts ruling in Roper. Texas is now, with the uncommon exception of commutations, completely unable to execute precise justice where it is warranted, specifically for those who committed their crimes as youths. For the anti-death penalty bloc, this victory is akin to the slaying of the gorgon, a victory of some mythic proportions. Conversely, for those who also look to curtail the figurative death of youth offenders, this was a dramatic loss. SB60 is a death warrant and, as of September 1, convicted youth capital offenders are just as good as killed. (source: Z Magazine -- David Mikhail teaches criminal justice and political science at Rutgers University in New Jersey. He has worked with the Center for Constitutional Rights in New York City and the U.S. Department of Justice in Washington, DC.) SOUTH CAROLINA: Death row inmate gets life sentence for different murder A man on death row for shooting a Myrtle Beach police officer has been sentenced to life in prison after a Marion County jury found him guilty in a different killing. Luzenski Allen Cottrell and his roommate Frederick Halcomb Jr., forced a Myrtle Beach man to dig a grave in November 2002, then killed and buried him, prosecutors said. A jury took about an hour Thursday to convict the pair of murder in the death of Michael Jonathan Love. Cottrell was sentenced to death earlier this year for the slaying of Myrtle Beach Police Officer Joe McGarry. Circuit Judge Michael Baxley ordered Halcomb to serve his life sentence after finishing a 5-year sentence on a drug charge. (source: Associated Press) MISSOURI: Locals continue to fight executions Beneath the shadows of the columns in front of the Boone County Courthouse on Tuesday afternoon, a small group of protesters stood as strong as the concrete pillars beside them. Signs written in black read "capital punishment is murder by the state" and "violence begets violence" were clasped firmly in sweaty palms. In the 83-degree heat Jeff Stack, a coordinator with the Mid-Missouri Fellowship of Reconciliation - the group that planned the protest - didnt seem to notice the sweat running down his neck. "We're a seasoned bunch of people, we've done this a few times before," Stack said, squinting into the light. "Considering whats being planned a few miles away, standing in the sun is kind of a luxury." Stack was referencing was the execution of Timothy Johnston, a 44-year-old convicted of beating his wife to death in 1989. Members of FOR gathered Tuesday at a vigil for his Wednesday morning execution. The group said they assembled not to defend Johnston's crimes, but to protest the nature of his punishment. "We feel (Johnston's) violent death at the hands of the state of Missouri replicates evil. It won't wash it away," Stack said. "He's a human being, he's remorseful for what hes done and there's nothing he can do to bring back his wife. Now there will just be another group of people to mourn the loss of a loved one." Johnston is survived by his mother and several brothers. Johnston's death was almost delayed Tuesday when the 3-judge panel of the 8th U.S. Circuit Court of Appeals placed a temporary stay on his execution. Johnstons attorney, Chris McGraugh, said the court granted the stay at about 3 p.m., but reversed its decision at 9 p.m. McGraugh said appealing for a stay of execution was a response to Johnstons claim that the lower court had used unfair legal standards and had not granted enough time for proper investigation. "Obviously I'm disappointed," McGraugh said. "All along, all we really asked for is what any other civil litigate gets. I think we were put on a fast track. I dont think Tim got a fair opportunity in court." Stack, who has lobbied against the death penalty in Missouri since 1987, said the stay was set because 2 circuit court judges believed death by lethal injection was cruel and unusual punishment. After the majority of the court disagreed, the stay was lifted. Stack said his group protests the death penalty any time Missouri executes a prisoner. Since 1989, 65 people have been executed in Missouri, the 4th-highest execution rate in the nation. Protester Gene Murray said she has attended vigils for the past 5 years. "I know (Johnston) killed his wife. I think that's horrible. That's killing too," she said. A fitting punishment, she said, would have been a prison sentence. "The death penalty is used capriciously," said Murray, a registered nurse in Columbia. "I don't think it's right." Some people expressed opposing opinions. "Just as we were leaving, a man swerved his car over to the curb and yelled really loud, 'They're gonna fry him up tonight in the name of the Lord!'" protester Robert Heinz said. "Those words ring in my ears." (source: The Maneater) MARYLAND: State rejects claim of bias in death penalty case----Evans was convicted in 1983 murders; Lawyer says client's sentence should be overturned based on study citing Maryland's history of discrimination A lawyer for the state rejected the claim today that racial bias played a role in the death sentence of Vernon Evans Jr., telling the Court of Appeals Evans was sentenced to die because his crime "ranks up with there with the worst" in the history of Maryland. Evans would have received a death sentence "whether he was white, black, pink or purple," Assistant Attorney General Annabelle Lisic said. Evans lawyer, A. Stephen Hut Jr., said the sentence should be overturned because there is a history of racial bias in the use of the death penalty, as demonstrated in a study conducted for the state by Raymond Paternoster, a professor at the University of Maryland College Park. Paternoster found that prosecutors are most likely to seek the death penalty for black suspects when the victims are white. Evans was sentenced to death for the murders of Scott Piechowicz and his sister-in-law Susan Kennedy, who were gunned down in the lobby of a motel in Pikesville in 1983. While admitting that he was paid $9,000 by drug dealer Anthony Grandison, Evans argued that he was merely a middleman. Grandison, who is also on death row for his part in the murders, wanted Piechowicz and his wife dead because he believed they were going to testify against him in another trial. Evans killed Kennedy by mistake after incorrectly identifying her as Piechowicz's wife, who was her sister. Hut argued that the Baltimore County state's attorney's office violated Evans' constitutional right to equal protection of the law by discriminating on the basis of race in deciding to try him for capital murder. He said the office was more likely to seek the death penalty for blacks who killed whites than for whites whose victims were of either race or for blacks whose victims were black. He said Evans should have the right to try to demonstrate at a new hearing that race played a role in the decision to seek the death penalty. "The state has to come forward and prove that discrimination didn't affect the death sentence (of Evans). We don't believe they can do that," Hut said. Lisic said the reason Evans was sentenced to death "is because of the nature of the crime he committed, cold-bloodedly killing two innocent people." In addition to Evans, three other people sentenced to death have challenged their sentences because of Paternoster's findings. He determined that black defendants who killed whites were most likely to be charged with capital murder and sentenced to death in Maryland. He also found that the likelihood of prosecutors seeking capital murder charges in Baltimore County is 13 times greater than in Baltimore. (source: Baltimore Sun) GEORGIA: Ga. Courthouse Gunman Lawyers Seek Papers In Atlanta, lawyers for accused courthouse gunman Brian Nichols asked prosecutors to turn over any records that may show he was mentally or emotionally disturbed when he allegedly killed a judge and 3 others. The lawyers in a motion released Thursday also said they want the state to produce any records that show Nichols reasonably believed he had "moral justification" for allegedly escaping March 11 from the Fulton County Courthouse during his rape trial and committing the murders. Defense attorney Jacob Sussman declined to say if Nichols would argue insanity but indicated more motions may be filed. "We filed the motion for evidence to ask if the state has anything that speaks to it," Sussman said, declining to elaborate. The defense also asked that the case be moved out of the downtown courthouse where the shooting rampage started, noting that it is the crime scene. The motion did not suggest an alternative site. Prosecution spokesman Erik Friedly declined to comment on the defense motions. A hearing is scheduled for Sept. 8. No trial date has been set. Prosecutors are seeking the death penalty. Nichols is accused of overpowering a deputy, grabbing her gun and entering the courtroom where his rape trial was scheduled to resume. There, authorities say, he killed the judge presiding over the trial and a court reporter. Police say he then killed a sheriff's deputy who chased after him and, that night, a federal agent at a home north of downtown. He was captured the next day after, police said, he took a woman hostage in an Atlanta suburb. Other things the defense asked for in the motion include any evidence that shows Nichols has felt remorse for mistakes he's made in his life and any information that would support any possible mitigating circumstance that Nichols might present to the jury at his trial. (source: Associated Press)
