June 17
FLORIDA:
No confidence in Florida’s death penalty
There are 340 people on Florida’s death row. Without a thorough investigation
into the state’s criminal justice system and a full review of every capital
conviction, the next execution could be of an innocent person. Many state
leaders seem OK with that.
Those leaders, like Gov. Ron DeSantis, should binge watch some television.
“When They See Us,” a 4-part series on Netflix dramatizing the infamous case of
the Central Park Five — 5 young black and Latino boys falsely accused and
wrongfully convicted of the brutal rape of a New York jogger in 1989 — vividly
demonstrates how badly flawed the justice system in America can be.
It took more than a decade for the boys’ unjust convictions to be overturned,
but the damage to their lives and reputations can never be repaired. It could
have been worse, though. The oldest boy, who was tried as an adult, could have
received the death penalty and been executed before being exonerated.
One of the most compelling arguments against the death penalty is that an
execution cannot be undone if it turns out an inmate was wrongly convicted.
That potential should be especially concerning in Florida, where more death-row
inmates have been exonerated than in any other state.
In March, Clifford Williams Jr. became the 29th person exonerated from
Florida’s death row since the 1970s. Prosecutors now say he didn’t commit the
crime he was convicted of — after he spent 42 years in prison.
Florida has, almost certainly, executed innocent men. Leo Jones might have been
one of them. He was executed in 1998 for the murder of a police officer even
though one of the main witnesses against him had recanted and there were
allegations that his confession came only after a brutal beating by the
officers who interrogated him.
Given that there appears to be no political will to end the death penalty in
Florida — 1 of only about 5 states that still regularly executes prisoners —
restoring confidence in the integrity of the system that puts people on death
row is paramount. DeSantis, a death-penalty supporter who recently signed a
bill making it harder for ex-felons to vote, should order a review of death-row
exonerations and other wrongful convictions.
Instead of doing that, he has appointed 3 conservative justices to the Florida
Supreme Court who might lead the court in reversing a decision about
retroactively resentencing death row inmates. The issue arises from a 2016 U.S.
Supreme Court decision that found that allowing judges — not juries — to decide
if the facts warranted a death sentence violated the accused men’s right to
trial by jury. The state therefore began reviewing death sentences back to
2002, but that state Supreme Court justices seem poised to stop that.
When the state executes a convict, such an act must rest on a firm,
unassailable foundation. There must be absolute confidence that the system is
fair, just and devoted to the truth. There can be no such confidence in the
current system.
(source: Editorial, Miami Herald)
USA:
Debunking the Court’s Latest Death-Penalty Obsession----The conservative
majority complains that capital-defense lawyers are making up claims at the
last minute. It’s wrong.
On March 29, 1994, Texas lawyer Mandy Welch rose to argue before the Supreme
Court on behalf of a condemned prisoner named Frank McFarland.
Justice Antonin Scalia, however, wanted to put Welch’s law firm, the Texas
Resource Center, on trial. McFarland’s petition, Scalia said, had been filed
late in the process, disrupting court procedure. He was not interested in her
explanation: Her firm had originally tried to recruit volunteer counsel for
McFarland, and finally had to take him on itself—one of 220 death cases being
handled by 18 young lawyers. “I just want you to know that I am not happy with
the performance of the Texas Resource Center in the cases that come before me
as circuit justice,” Scalia said.
“I wasn’t prepared” for Scalia’s wrath, Welch told me in an interview recently.
“It was easy for me to respond with the feeling that if you understood what
happened, you would know that we had no control over any of [the timing].” (The
case concerned McFarland’s right to counsel for a habeas corpus petition;
though he won on that issue, he was eventually executed anyway.)
Scalia’s ire against the capital defense bar has survived his death. This term,
members of the new conservative majority have been in high dudgeon about death
appeals. The conservatives’ complaints hone in on a specific claim: Capital
punishment in the U.S. would go off smoothly if lawyers would just stop making
up claims at the last minute. Having looked at the record in these cases, I
wonder whether their ire represents judicial piqure more than sober legal
critique.
The rumble kicked off on February 7, when the Court, in an unsigned opinion,
allowed the state of Alabama to execute a Muslim inmate, Domineque Ray, without
permitting his imam to join him in the death chamber. The Court argued that Ray
had waited too long to raise the issue.
On March 28, the Court did grant a stay of execution to a Texas inmate who
wanted a Buddhist priest in the chamber. Justices Clarence Thomas and Neil
Gorsuch dissented; Justice Brett Kavanaugh suggested Texas just ban all
spiritual advisers, which the state did a few days later.
In between those 2 seemingly contradictory decisions, on March 6, the Court, in
a case called Bucklew v. Precythe, rejected, 5-4, a challenge by an inmate with
an unusual medical condition. Because his oral cavity was full of fragile
blood-filled tumors, Russell Bucklew argued that Missouri’s method of lethal
injection would be so painful that it would violate the Eighth Amendment—not
necessarily in general, but specifically as applied to him. In the majority
opinion, Gorsuch suggested that Bucklew’s counsel had deliberately waited to
raise the claim until a few weeks before his execution date. He urged lower
courts to “protect settled state judgments … by invoking their ‘equitable
powers’ to dismiss or curtail suits that are pursued in a ‘dilatory’ fashion.”
Justice Stephen Breyer tartly said in dissent, “[i]t might be possible to end
delays by limiting constitutional protections for prisoners on death row. But
to do so would require us to pay too high a constitutional price.” Justice
Sonia Sotomayor, in another dissent, wrote: “There are higher values than
ensuring that executions run on time.”
In yet one more death penalty case, Justice Alito angrily returned to the Texas
Buddhist-prisoner issue. “This Court receives an application to stay virtually
every execution,” he wrote; “in the great majority of cases, no good reason for
the late filing is apparent. By countenancing the dilatory litigation in this
case, the Court, I fear, will encourage this damaging practice.”
The conservative majority has made clear how this issue looks from their perch.
But how does it look to the Mandy Welches of the world—those who litigate
death-penalty appeals? Let’s start with Bucklew, the case of the inmate with
the medical condition.
Paul Cassell, a professor at the University of Utah School of Law, argues that
Bucklew could have brought this challenge years ago. Cassell is, among other
things, a former federal district judge and perhaps the nation’s most prominent
advocate of victims’ rights legislation. He co-authored an amicus brief in
Bucklew on behalf of a crime victims’ group and the sister of one of the murder
victims. The brief alleged Bucklew had engaged in “decades-long abusive
litigation, strategic posturing, and dilatory tactics” and that his lawyers had
chosen to “keep an as-applied challenge (based on his benign oral tumors) in
reserve, ready to use when most strategically advantageous.” Bucklew’s lawyers,
Cassell told me in an interview, had been “deploying his condition for tactical
advantage” by “holding his ‘as applied’ challenge” until the last minute.
But Robert Hochman, who represented Bucklew at the high court, said that if in
fact there is a problem with capital defense lawyers, “Mr. Bucklew’s case could
not have been a worse occasion to highlight it.” Most of the delay, Hochman
argued, was not of Bucklew’s—or his lawyer’s—making. The apparent delay arose
in part because the appeals process for state death-penalty cases is so
complex. The 1st step for a condemned prisoner is a “direct appeal” to the
state’s highest court (if denied, it may be followed by petition for review to
the U.S. Supreme Court). Under the Sixth Amendment, defendants are entitled to
state-provided counsel during this stage. But after that, a defendant enters
the world of state “post-conviction” proceedings—and there, the Constitution
does not require appointed counsel. Some, but not all, states provide counsel
at this stage. In states that don’t provide appointed counsel, the inmates must
hope for volunteers from advocacy organizations or the private bar. And even
states that do provide it do not necessarily offer the funding to pay lawyers,
experts, and investigators—without whom a death penalty case is unmanageable.
Prisoners who are unsuccessful in state post-conviction proceedings may file a
federal habeas corpus petition. If denied, that may go up the ladder again to
the Supreme Court. A statute provides funding for counsel at this stage. But
Congress has strictly limited the timing and number of habeas petitions. A
petition filed too soon, or too late, may be denied, leaving no chance to file
another. A last-minute petition, however, may be filed when an issue could not
have been raised earlier, and those may go to the high court as well. The
process is like a maze where a wrong turn by a lawyer may spell death for a
client.
So delay is almost built into a sentence of death. But there were specific
reasons why Bucklew’s claim about his medical condition took so long to reach
the high court.
Bucklew’s state appeal and post-conviction proceedings were complete by 2001,
and his 1st federal habeas corpus petition ended in 2006. But only on April 9,
2014—more than 8 years later—did Missouri announce an execution date: May 21,
barely 6 weeks away.
Earlier, Bucklew had joined a case brought by a group of inmates alleging that
the state’s execution protocol was “cruel and unusual punishment” when used
against any inmate. That case was dismissed on May 2, three weeks after the
execution date was set; only a week later, on May 9, Bucklew brought the “as
applied” challenge. Even if the execution protocol was constitutional in most
cases, he argued, it would violate the Eighth Amendment in his particular case
because of his medical condition.
Hochman and Bucklew’s Missouri lawyer, Cheryl Pilate, both cited reasons why
the “as applied” challenge wasn’t brought earlier. For one thing, Missouri did
not announce its specific execution protocol until 2012—and it revised it in
2013. To win, Bucklew had the burden of showing that this specific protocol
would cause him excessive suffering because of his specific condition. Until
the protocol was announced, there was nothing to challenge.
Second, an “as applied” challenge like Bucklew’s can’t succeed without
professional expert testimony on both the specific protocol and the effect it
will have on the inmate’s medical condition. To mount an effective challenge, a
lawyer will need investigators, experts in evidence, psychology, or
“mitigation” factors in sentencing hearings. Many states don’t routinely supply
such funds.
“You can’t make an argument that has any chance of winning unless you have a
medical expert,” Pilate, told me. The state consistently refused to grant her
funding for expert testimony. “I had no money,” she said. “I had no experts. I
had no resources.” Her 4-lawyer law firm could not fund a complete defense; she
tried cold-calling other lawyers and firms to recruit help. “These cases take
you to the edge of financial catastrophe.” Bucklew’s family managed to put up a
small amount of expense money to recruit experts, she said; after Sidley,
Hochman’s firm, entered the case, it funded more expert evidence.
Bucklew’s disease, meanwhile, is progressive. His tumors had been steadily
expanding during his years in prison, meaning that expert testimony in 2007—had
there been any—would have been out of date by 2014. Bringing a federal habeas
corpus petition based on out-of-date or incomplete medical information would
have risked forfeiting Bucklew’s only shot at relief.
Because of the long delays and the rules limiting federal habeas corpus,
lawyers defending condemned prisoners are shooting at a moving target.
Execution protocols change. In many cases, a prisoner’s medical or mental
condition is at issue—and that will change, and may worsen, as the years go by.
The law changes also. During the 8 years Bucklew was waiting for an execution
date, the Supreme Court heard 2 major challenges to lethal injection as a
method of execution. Either decision might have altered the landscape for his
appeals.
There’s another problem faced by inmates like Bucklew. Aaron Katz of
Boston-based megafirm Ropes & Gray argues that “on these method of execution
claims … the states are pretty routinely playing hide the ball—they change
drugs, change the amount of drugs,” and change the methods by which they will
be administered.
Katz represented Chris Price, an Alabama inmate who wanted the court to forbid
his execution by Alabama’s lethal-injection protocol, and instead order the
state to use nitrogen gas—which is a state-approved method of execution.
Price’s request was denied because of a missed filing deadline, and he was
executed on May 30, after yet another round of emergency appeals—appeals that
underline Katz’s point about secrecy. At Alabama’s request, the briefs and
exhibits were kept “under seal,” meaning no one could read them in their
entirety. The purpose of the seal was apparently to keep secret information
about the state’s execution protocols. If that information were on the public
record, prisoners bringing future challenges could proceed more quickly. This
situation isn’t an anomaly: since the beginning of 2011, according to the Death
Penalty Information Center, “legislatures in thirteen states have enacted new
secrecy statutes that conceal vital information about the execution process.”
Katz rejected the idea that inmate appeals should or could be brought well
before an execution date is set. “Are we supposed to be filing shotgun
litigation at random times and jamming up the federal courts?” he asked.
“You’re going to have hundreds of inmates filing at all times. I don’t see why
that would be better.”
Everyone agrees that a major reason for late-stage appeals is that, in many
states, defendants facing a death sentence do not get the best court-appointed
counsel at trial. As Brandon Garrett points out in his book End of Its Rope:
How Killing the Death Penalty Can Revive Criminal Justice, many states over the
past 30 years have moved to a statewide system of full-time state-paid capital
defenders and away from trial counsel appointed for a small fee by the trial
judge. For all its Atticus-Finch romance, that system too often-produced
abysmal defense at trial. “By 2013,” he writes, “almost all death penalty
states provided state-level capital representation at trial … and only a few
holdouts, most notably Alabama, Florida, and Nevada,” do not. Death sentences
have dropped dramatically in the states that have these systems. “States with
shoddy lawyers for the defense,” Garrett writes, “represents what remains of
the American death penalty.” That means fewer new death sentences, which, in
time, will mean fewer late nights for the justices.
But that reduction will take time. More than 2,700 prisoners remain on death
rows across the nation. And many states, particularly in the “death belt” that
stretches from Florida in the east to Texas in the West, are determined to keep
the gurneys running.
Supporters of the death penalty regard the long delays as miscarriages of
justice. “We focus a lot on defendants, and defendants have rights that should
be safeguarded throughout the process,” Cassell, the former judge turned
victim-rights scholar, told me. “But there is another side and that is victims,
who have to put their lives on hold each time there’s a motion or a hearing.”
He added, “If you look at the national statistics, you can see increasing
periods of delay that cannot be explained by lack of counsel.”
There’s no doubt that death sentences usually lead to long delays. Are death
penalty lawyers really the reason for them? From my own reporting about capital
punishment, the problem seems more diffuse. At very best, the recent spleen
emanating from the Court’s right wing is bad manners. (The Court’s death caucus
is, after all, winning most of the votes that seem to embitter them so.) But
the threat goes beyond politesse: The Court’s angry pronouncements could
intimidate private lawyers who would usually consider helping with death
appeals, and send a message to state and federal judges that death appeals are
to be given short shrift.
Capital defense lawyers do try to halt what Justice Harry Blackmun once called
“the machinery of death.” To me, that seems no different from what other
lawyers do, in great cases and small. The Exxon Valdez oil tanker spilled more
than 10 million gallons of crude oil into Alaska’s Prince William Sound in
1989; the company, represented by the best lawyers in America, delayed final
judgment in a tort suit for 20 years. Prison-rights groups sued the state of
California in 1990 over flaws in its prison mental-health system; 5 years
later, a federal court concluded that system violated the Eighth Amendment. The
state missed court-ordered deadlines to improve it for the next 15 years,
before the Supreme Court called it to heel. When private and public money
inspires such legal solicitude, are we surprised that capital-defense lawyers
fight to preserve their clients’ lives?
“I say that you want to do everything in your client’s interest,” said Chris
Adams, an experienced capital-defense lawyer in Charleston, S.C. “If I’m his
lawyer I’m going to litigate every legitimate issue that we have.” Aaron Katz,
the lawyer who represented Christopher Price in the Alabama method-of-execution
case, put it more simply: “I genuinely don’t want our client to suffer in his
last few minutes. That takes priority.”
(source: Garrett Epps is a contributing editor for The Atlantic. He teaches
constitutional law and creative writing for law students at the University of
Baltimore.)
************************
Nearly all Democratic candidates oppose death penalty as public opinion shifts
Opinion polls show a decline in support nationwide for the death penalty, from
80% in a 1994 Gallup survey to 56% in October 2018. Most major Democratic
candidates have followed suit.
The October 1988 debate between George H.W. Bush (and Michael Dukakis took a
deciding turn when Dukakis said he would oppose the death penalty even if his
wife were raped and murdered. Now most Democratic candidates, with the
exception of Joe Biden, oppose executions.
Not so long ago, opposing the death penalty was pretty much a death knell for a
presidential candidate. Michael Dukakis, for one, sank his remaining hopes in
1988 when he told a debate questioner he would oppose execution even for
someone who had raped and murdered his wife.
Now, in what appears to be another sign of a public turnabout on the issue,
nearly all of the Democratic presidential hopefuls — with the notable exception
of former Vice President Joe Biden — say they are against capital punishment.
For example, Sen. Bernie Sanders, independent-Vermont, voted as a House member
in 1994 for a bill that substantially expanded the federal death penalty.
Sanders said at the time that the bill, sponsored by Biden, was a compromise
that included funding for investigation and prosecution of violent crimes
against women and a 10-year ban on semiautomatic firearms.
(suorce: San Francisco Chronicle)
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