Friday, February 19, 2016

26 and Counting

To what end, exactly?
That's the question Ohio Supreme Court Justice Paul Pfeifer asks today.  Actually, that's my phrasing. What Justice Pfeifer said is. 
The act begs the question: Why?
The "act" was the court's order setting an execution date for James Frazier, sentenced to be killed for the March 2004 murder of Mary Stevenson in Toledo.  It's scheduled, now, for October 17, 2019 (yes, 2019).

The question, whether in my form or as Justice Pfeifer put it in his dissent (joined by Justice O'Neill) from that order, isn't about whether Frazier should be killed.  After all, Pfeifer joined the unanimous opinion affirming Frazier's conviction and death sentence.*

Nor, at least not exactly, is the question about the wisdom of setting execution dates more than three years in the future.  That's the sort of thing the court's been doing for some time.  In fact, as Pfeifer points out, as of yesterday we here in the Buckeye State had 25 executions scheduled.  First up, Ron Phillips on January 12 next year.  (Yep, next year.)  The last Gregory Lott for August 14, 2019.  

Of course, we've something of a backlog, given the moratorium on killings since the botched murder of Dennis McGuire in January 2014.  And unlike some states, we space our killings apart.

But, really, it wasn't the three years plus that left Pfeifer wondering.  It's the drugs.
The state does not have the drugs needed to carry out the executions. 
We don't have 'em.  We can't get 'em.

The last killing, the gruesome execution of Dennis McGuire (gruesome in exactly the way his expert witnesses said it would be and the way the state's witnesses assured Judge Frost it would not) was done with an experimental mix ("experimental" as in nobody'd ever been executed with that combo of drugs before) of midazolam and hydromorphone.  

So OK, we won't use that combo again.  And after much thought, the folks who make these decisions (the folks who run the prison system, not physicians or pharmacologists) decided to go back to the tried and true - thiopental or pentobarbital.  Except, well, there's none to be had.  

Ohio's been begging the FDA and the DEA and the FCC and the IRT and the BMW and anyone else with initials they can think of to allow importation of bootleg drugs from India or the Taliban or something.  Ohio's been failing.

We tried to get a compounding pharmacy to compound.  Nope.  We passed a law making the identity of the compounding pharmacy a secret figuring that the pharmacists were probably good with killing but not with going public.  We were wrong.
Given that no executions are scheduled to take place in 2016, it is likely that there are no suppliers to shield.
One more time.
The state does not have the drugs needed to carry out the executions. 
And so, the question:
To what end, exactly?
Justice Pfeifer's summary:
At this time, the state is incapable of properly executing the 25 people for whom execution dates have previously been set. It serves no rational purpose for this court to continue to set execution dates while significant logistical obstacles remain in place and more legal challenges are likely. 
And yet, the prosecutors keep filing motions to set execution dates.  And the supreme court, for reasons known only to them, grants them from time to time. In desperate hope, perhaps.  

Or perhaps, just perhaps, if the prosecutors didn't ask and the justices didn't sometimes agree, they'd be admitting that out commitment to killing our people is empty.  That we don't really expect to do it, that death row is now no more than a talking point, empty rhetoric, PR.

There are now, adding Frazier to the list, 26 men with scheduled execution dates.  It's likely there will be more as more men finish their run through legal process.

I imagine that we'll eventually execute some of them.  Maybe.  Or maybe it really is just a game at this point.
* O'Neill wasn't on the court in 2007 when it ruled in the case.  It seems likely have joined in affirming the conviction but dissented from the death sentence since he believes the death penalty unconstitutional.  (See here.)

Tuesday, February 16, 2016

A Modest Proposal

No, not Jonathan Swift's.  But you can draw your own conclusions.

Antonin Scalia, that's Associate Justice of the Supreme Court Antonin Scalia, is dead.  He has, as John Cleese pointed out (albeit in a different context), "ceased to be."  

And so the cries go out, as they do whenever a Supreme Court Justice dies a suspicious death.
Something must be done.
But what?  

As usual, there is a split of authority.

The Democrats point to the Constitution (Hah! Take that!) which provides in Section 2 of Article II that the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.
The Republicans point to the Nullification Clause (secretly embedded in Article XVII and routinely relied upon by both Republicans and Democrats) which provides
not if we don't wanna.
After all, the Republicans say, the President has a four-year term.  This is the last of his four years, and so he should not do anything and we won't let him because it is, after all, just a year before we get a new President, perhaps one to our liking. No fourth-year act should be allowed.

The Democrats, responding with equal lack of authority, say that because there's a full year left to the President's term, he has six months of authority left before he is officially stripped of all Presidential powers except posing for selfies with celebrities.  (See Article XLIV)

So we have a classic Mexican stand-off.  (Would-be-President Trump has announced that he will abolish those, of course, and make Mexico pay the cost of abolition.)

In reality, both Democrats and Republicans are wrong.  From the day the President is inaugurated, the President is on a downward spiral.  Certainly, the Pres is elected for a four-year term, but that term is already winding down on inauguration day.  Why then, should we imagine that a President elected in one year but not taking office until the next ever acts in accordance with the will of the people Electoral College?  Why, indeed?
Wyoming says NO!
Clearly, the proper solution is to have any decision of consequence made by the President-elect on election day.  That way and only that way can the will of the people Electoral College be honored.

Oh, sure.  The Constitution says that the President gets to do stuff.  But that's the Dead Constitution beloved by the dead guy.  How 2015!  The Living Constitution adapted to the needs of a short-attention-span populace trained to 140 characters and fewer seconds than that, a populace that turns on its newly elected within moments (how appropriate for the age of the Apple Watch) that Living Constitution knows that Presidents are elected and, thus, President-Elect.

You're welcome.

Saturday, February 13, 2016

Not a Eulogy - a Reminder

No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were; any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.
From Devotions Upon Emergent Occasions, Meditation XVII, by John Donne
When Osama bin Laden was killed, I quoted Kathleen Parker from the Washington Post.
Ten years of waiting and wondering where in the world was Osama bin Laden, the question nagged: Was he even alive? Then, voila. He was hiding in plain sight in a compound in Pakistan. We had been observing him for months. And now he was dead, said the president.
Whereupon the strangest thing happened. People began congregating outside the White House and cheering, celebrating the death of bin Laden. Young people, mostly, chanted “USA” and waved the flag. I wanted very much to share their joy and to feel, ah yes, solidarity in this magnificent moment, but the sentiment escaped me. Curiosity was the most I could summon. How curious that people would cheer another’s death.
Not since Dorothy landed her house on the Wicked Witch of the East have so many munchkins been so happy. My 20-something son explained ever so patiently that OBL was his generation’s Hitler and that of course he was happy. Why wasn’t I?
I don’t know. To me, the execution of bin Laden was more punctuation than poetry — a period at the end of a Faulknerian sentence. That is, too long and rather late-ish. To the 9/11 generation, if we may call it that, OBL wasn’t only the mastermind of a dastardly act; he was evil incarnate and the world wouldn’t be safe until he was eliminated.
Would that justice were so neat and evil so conveniently disposed of.
Perhaps it is a function of age, but I find no solace in revenge. What I do experience at such times is overwhelming sadness about the human condition, our bloodlust and attraction to spectacle.
When Muammar Qaddafi was killed, I wrote again about the cheers.
And there was, again, rejoicing - though in this country nothing on the scale of the cheers that greeted the murder of Osama bin Laden. But in Libya the cheers and the gawkers.
And I added:
How do you measure?
Who do you kill?
Not who do you want to kill. Who do you? And are you better for it?
Are any of us?
Muammar Qaddafi is dead.
I'm sorry. That's not a cause for rejoicing. Not ever.
I've noted several times that  
When Ted Bundy was killed, Time reported that
some 200 bloodthirsty revelers gathered outside the penitentiary in Starke, Fla., for a ghoulish celebration. They lit sparklers, cheered and waved signs reading BURN, BUNDY, BURN and ROAST IN PEACE.
It is said* that when John Kennedy was killed Fidel Castro responded,
Only a fool would rejoice, for systems, not men, are the enemy.
Antonin Scalia died this morning.  Apparently of natural causes.  One imagines in his sleep.  
He was, of course, a polarizing figure with a distinct view of the Constitution and how it ought to be understood and interpreted.  He was a force among the Supreme Court's so-called conservatives, a major player driving the wins in cases reviled by so-called liberals, including probably the two most recent ones: District of Columbia v. Heller in which he wrote the majority opinion and Citizens United v. Federal Election Commission  in which he simply joined the majority.  

And he believed, deeply, in the power of the state to kill its citizens, in the power of the state to prohibit its citizens from having abortions, and in the power of the state to prevent same sex couples from doing pretty much anything - most especially getting married.

At the same time, he was the voice on the Court leading the call for juries, not judges, to make the decisions that controlled how long people could be incarcerated for their crimes and whether they should be executed.  And he led a not particularly enthusiastic Court to acknowledge that the Confrontation Clause actually required confrontation.  (Yes, the Court's been backing away from that, but he even when he thought it didn't apply he argued that it should count.)

He was, as I said, a polarizing figure.  And it was clear that he relished the role.  To liberals, he was often viewed as something close to pure evil.  Hell, I've done my share of savaging his jurisprudence. (See here, for instance.)  But he got stuff right, too.

In any event, he's dead now.

As soon as I heard the news, I sent word around to some criminal defense listservs.  A friend wrote back.
Great News.
Of course, it's not.

Whatever one thinks of his jurisprudence, he left behind a widow, children, grandchildren who loved him.  He had friends who will mourn him.

If he were your client, if he were to be executed, you'd fight like hell to save his life.  Because it was his life.

Want a change in the Court?  Hope that Obama will or won't succeed in appointing a replacement? Fear or fantasize about how the court will be different in the coming years?  Sure.

But hey, he was one of us. 

No rejoicing in his passing.

*By Phil Ochs in his notes on the back of one of his albums.  I've never had occasion (and I'm not taking it now) to confirm what Ochs wrote.

Monday, February 8, 2016

Te Deum

A friend sent a group of us a poem, "Te Deum" by Charles Reznicoff.
Not because of victories
I sing,
having none,
but for the common sunshine,
the breeze,
the largess of the spring.
Not for victory
but for the day's work done
as well as I was able;
not for a seat upon the dais
but at the common table.
Another friend commented,
Very nice, and about right.
And thereby, I realized, hangs a tale.

It was 2007 and I was in a room across from the death house at an Ohio prison while my client was being executed just across the way. I was there with my co-counsel and our client's lead trial counsel. In the room with us were many members of the client's family.

After the execution, after we watched as the body in the body-bag was wheeled out and put into a hearse, the family came up to us, the three lawyers. One after another they hugged us or shook our hands, as if we were a receiving line. One after another they said, often through tears, trying to offer comfort, "You did all you could."
I understood, we understood, the sentiment. He couldn't be saved. You tried. We're grateful. Thank you.

We got it. And yet, and yet. He was killed. We failed. "Not for the victory," then. Not, indeed. But to each of us, the other message: If we had done all we could, if "as well as [we were] able," then we just weren't good enough.

I have, at one time or another, represented a couple of dozen men charged with or convicted of capital sentences in Ohio and Texas. I've never put anyone on death row, and I've gotten a number off. But I've also failed. There are those still on death row, still litigating. Some have pending execution dates, others not yet. But there are 7 men who've been executed, who I represented at one time or another after they'd been sentenced to die. They, each of them, and the others too, they haunt.

A seat "at the common table," sure. And one does what one can. The "day's work."

But in the end . . . .

Wednesday, February 3, 2016

Pete Seeger - RIP

Put $284,000 in Small Unmarked Bills in a Paper Bag and Leave It Under the Big Rock near the Playground

It must be nice to have a slush fund.  Or you could think of it as not-so-petty cash.

Turns out that Missouri pays cash for executions.  Chris McDaniel for Buzzfeed news:
Shortly before each execution in Missouri, a high-ranking corrections official takes envelopes filled with thousands of dollars in cash to the state’s executioners. The cash limits the paper trail — and helps keep the identities of the executioners hidden.
Most of the envelopes are filled with hundred-dollar bills. And on the outside, the envelopes carry instructions: They aren’t to be opened until “completion of services rendered.”
The executioners are given pseudonyms to protect their identities: M2, the nurse, gets $2,400, while M3, the anesthesiologist, gets the envelope marked $3,000. M7, the drug supplier, gets the most, an envelope filled with $7,178.88.
It adds up.  
Missouri Director of Adult Institutions David Dormire has handed out nearly a hundred envelopes filled with cash since November 2013. Over that span of time, Dormire delivered $284,551.84 in cash to the small group of individuals who help the state carry out the death penalty, according to a BuzzFeed News review of receipts, an audit of the payments, a spreadsheet showing cash withdrawals, and memos marked “confidential” in which the payments were discussed.
I kind of get it.  Giving out cash avoids a paper trail.  Records just get you in trouble.  You know, subpoena them.  Bring them to court.  Or file public records requests.  All that stuff.  Better to keep it quiet.

In fact, it's really better to keep it completely secret.  Especially from IRS.  Which might want to collect taxes.  Of course, maybe the folks taking the money under the table are reporting it.  Sure they are.  What we know is that Missouri isn't reporting it. 

Sure, the law requires that Missouri give the good-guy killers of bad-guy killers 1099 forms.  Which they also have to file with IRS.  But they don't.  Because those good-guy killers, it seems, won't kill on command if IRS is told about it.  At least, that's what George Lombardini, director of the Missouri Department of Corrections explained at a budget hearing Monday.  Danny Wicentowski of Riverfront Times was there.
“It is my understanding that giving 1099s to these individuals would reveal who they were, and would mean the end of the death penalty, because these individuals wouldn’t do it,” Lombardi said, responding to questions from State Representative Rep. Jeremy LaFaver (D-Kansas City).
Of course, being good guys
Lombardi added that his staff counsels executioners to report their cash payments to the IRS.
No doubt.  And surely, they all do.  Being good-guy killers.

LaFaver had other questions.  Why, he asked Dormire, aren't the cash payments listed in the Corrections Department budget?
We don't include a whole lot of things that are expenses; we try to hit the highlights of the major items.
You know, maybe they don't budget for donuts.  Donuts and killing.  Yeah.  But ooops.  It appears that donuts are a budget item.  
Questioned further, Dormire couldn't identify another example of an expense not included in the budget.
So it's just killing.

Which didn't much please LaFaver.
"I respectfully submit and request that executing somebody, it's a big deal," LaFaver shot back. "If we're going to spend money to do that, I think it should be included in the description, that this is the area of the budget where money goes in envelopes in cash to kill people. Maybe worded differently, I understand you probably would. I probably wouldn't."
Really, though.  It's just about balance.  On the one hand, Missouri by god wants to be killing folks. Have to violate the law in order to do it?  What's more important, anyway? Executing bad guys or paying taxes.


They call it the Show-Me State.

Show me the money. 

Friday, January 29, 2016

Breaking News: Sun Rises in East

The headline in the Columbus Dispatch caught my eye.
Study finds racial, gender bias in Ohio executions
I mean, damn.  I'd figured that Ohio (the state that round at the ends and stoned in the middle) would be better than that.  We are, after all, as our license plates sometimes say, "The Heart of It All" (whatever it might be).

Oh, sure.  I knew that every state where they'd done a competent study found that the likelihood of a death sentence went up significantly if the victim was white.  And even more if the victim was also a woman.  But surely, Ohio.

I had a client scheduled to be executed in February 2007.  Ted Strickland's term as governor began in January, and within a few days of his inauguration, I got a call from his chief legal officer.  He wanted me to know that Governor Ted had given my client a reprieve until April so that he would have time to study the case and decide whether to grant clemency.

Cool, I said.  Thank Ted, I said.  But you know, what he should do, I said, is declare a moratorium on executions for a couple of years and arrange for a full study of the death penalty here.  Here's the press release, I said.
I believe that Ohio's death penalty operates as fairly and perfectly as anything done by humans can. But because death is final, and in an abundance of caution, and to show the world that we are careful, I'm calling a halt to all executions until we've done a full, open, and fair study of just how it works in both theory and practice.
Once that study is complete, I'm confident that we can go forward with no changes at all, knowing that humans cannot improve on what we do here in the Buckeye State.
Is what I said Ted should say.

And Governor Ted's chief laughed.  Yeah, he said.  Not a chance, he said.

And, of course, there was no chance Ted would do that.  For all sorts of reasons.*  One of them, was that Ohio's no different from anywhere else.  I knew it.  His chief legal guy knew it.  He knew it.

What Ohio hadn't had was a real study.  We've had a few now.  By the ABA, by the Death Penalty Task Force put together by the Ohio Supreme Court (in partial response to the ABA study).  

And now
Ohio's 53 executions shown "vast inequities" in racial, gender and geography, a new study concludes.
Research by Frank Baumgartner, a University of North Carolina political science professor, are not a revelation to those familiar with Ohio's death penalty, which resumed in 1999 after a 36-year hiatus. But it does underline a consistent pattern that has been pointed out in state, national and media reports for years.
Baumgartner looked at Ohio's 53 executions between 1999 and 2014, finding "significant and troubling racial, gender, and geographic disparities with regards to who is executed in Ohio." Baumgartner concluded that the victim's race and gender, and the county where the murder occurred, influenced whether or not the killer was executed.**
To which the cognoscenti say
No shit.

*If you're sufficiently bored, you can trawl through the archives here and find bunches of stuff I've written about Strickland and the death penalty. 

** The Dispatch posted the full study.

NB: Gideon wrote about the study, too.  And pointed out that Connecticut wasn't any better - except that it shut down the death penalty.  At least for the moment.