Loretta Lynch v. Connecticut

This week the Attorney General finally made up her mind.

Following the department’s rigorous review process to thoroughly consider all relevant factual and legal issues, I have determined that the Justice Department will seek the death penalty,

That's Dylan Roof, the kid who's charged with killing 9 people at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina last year.

Roof, who's already facing capital charges in South Carolina courts - trial currently set to begin in January - now risks the possibility of another death sentence.  From the feds.  Because he didn't just kill 9 people.  He did it for bad reasons.  Teach that rotten kid a lesson.

It took a year of dithering rigorous review to determine that this was an appropriate use of federal resources.  So that we can get him killed twice. Or maybe it's because the AG doesn't trust those racist hicks in South Carolina to kill a white guy who killed black folk for kicks.  So the AG needs to arrange for a back-up.  You know, just in case.

Sigh.

Meanwhile, in Connecticut.  

• Where the legislature abolished the death penalty going forward but left it in place so that Joshua Komisarjevsky and Steven Hayes (and incidentally the 9 other folks on death row there) could still be killed.  
• Until State v. Santiago the Connecticut Supreme Court said that the death penalty violated the state's constitution and said that the 11 guys on death row couldn't be executed, either.
• And then, after the personnel on the court changed, put Santiago on hold while reconsidering the matter in the case of Russell Peeler, which was not a good sign if you thought they had it right the first time.

Yesterday, the court spoke.  There are concurrences and dissents, but in its brief and unsigned opinion (footnotes omitted), the court said it would follow its precedent.

A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court, Devlin, J.,rendered judgment imposing two death sentences. This appeal of the defendant’s death sentences is controlled by State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), in which a majority of this court concluded that, following the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), executing offenders who committed capital crimes prior to the enactment of P.A. 12-5 would offend article first, §§ 8 and 9, of the Connecticut constitution. See, e.g., Conway v. Wilton, 238 Conn. 653, 658–62, 680 A.2d 242 (1996) (explaining scope of and rationale for rule of stare decisis). Our conclusion that the defendant’s death sentences must be vacated as unconstitutional in light of Santiago renders moot the defendant’s other appellate claims. The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects. 

Connecticut is known, among other things, as The Constitution State.

The Attorney General is named Lynch.

You can't make this shit up.

From Out of the Macabre Muck - UPDATE

And so, it seems, Dr. Petit won't get his revenge.  Steven Hayes and Joshua Komisarjevsky won't be killed by the decent people of the State of Connecticut for the horrific invasion of the good doctor's home, the mother raped and strangled, the girls, 11 and 17, killed in a scorching blaze after gasoline was poured on them.  (And those are just the highlights.)

Hayes and Komisarjevsky were among the 11 men left on Connecticut's death row after the legislature repealed the death penalty in 2012.  Prospectively only.  They'd have done it sooner, but put it off so Dr. Petit could have his way and Komisarjevsky could be sentenced to die.  But they did it.

But what to do with those 11?  Republicans made a point of it during legislative debate.  Peter Applebome in the Times from back then.

Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men.
“Let’s not mislead the public; let’s not mislead ourselves” said the House minority leader, Lawrence Cafero Jr., of Norwalk. “If it is the will of this chamber that this state is no longer in the business of executing people, then let’s say it and do it. You cannot have it both ways.”

Well, maybe you could.  But not, as it turns out, in Connecticut.

Yesterday, by a vote of 4-3, the Connecticut Supreme Court said enough.  In State v. Santiago, litigation over whether the prospective elimination of the death penalty in Connecticut made its retroactive application unconstitutional, the court said that it did.  Near the start of the 92-page lead opinion, Justice Palmer quoted Santiago's counsel setting forth the base claim.. 

[T]he death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.

And then, Palmer gave the answer

Public Act 12-5 not only reflects this state’s longstanding aversion to carrying out executions, but also represents the seminal change in the four century long history of capital punishment in Connecticut. Accompanying this dramatic departure are a host of other important developments that have transpired over the past several years. Historians have given us new chronicles of the history and devolution of the death penalty in Connecticut. Legal scholars have provided new understandings of the original meaning of the constitutional prohibition against cruel and unusual punishments. Social scientists repeatedly have confirmed that the risk of capital punishment falls disproportionately on people of color and other disadvantaged groups. Meanwhile, nationally, the number of executions and the number of states that allow the death penalty continue to decline, and convicted capital felons in this state remain on death row for decades with every likelihood that they will not be executed for many years to come, if ever. Finally, it has become apparent that the dual federal constitutional requirements applicable to all capital sentencing schemes—namely, that the jury be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death, on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic biases. For all these reasons, and in light of the apparent intent of the legislature in prospectively repealing the death penalty and this state’s failure to implement and operate a fair and functional system of capital punishment, we conclude that the state constitution no longer permits the execution of individuals sentenced to death for crimes committed prior to the enactment of P.A. 12-5.

Which is it.  The Connecticut Constitution won't allow it.

Eleven men now have their sentences commuted from execution to death by natural means.  And under particularly horrific conditions, one assumes, since that's what P.A. 12-5 set up going forward for those who might have otherwise been sentenced to be killed.

There were three dissenting opinions (here, here, and here - Connecticut's court website doesn't provide a single link to the whole thing, sorry).  Each, excoriates the majority for what might charitably be called lawlessness.  Which maybe it is and maybe not.  Depends on where you stand, I suppose.  What the court does, pretty much by definition, comports with the state law because the state law is what the court says it is.  And the justices in the majority surely thought, just as strongly as those in dissent thought otherwise, that they were doing what the law told them to.

There were also two concurrences.  The first, by Justices Norcott and McDonald, bemoans what the issue before the court does not allow them to do, and its resolution will never allow them to do (though they go ahead and do it): take on the racism that inherently infects and at least in part controls the death penalty, and implicitly the whole criminal justice system.

[W]e write separately to express our profound concerns regarding an issue of substantial public importance that will never be resolved by this court in light of the majority’s determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment. Specifically, we cannot end our state’s nearly 400 year struggle . . .  without speaking to the persistent allegations of racial and ethnic discrimination that have permeated the breadth of this state’s experience with capital charging and sentencing decisions.

In the second, Justice Eveleigh cuts to the heart of the moral issues involved, though he addresses them in legal terms.

Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as the justification for the death penalty in today’s world. My review of the text and legislative history of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12-5 that allow the men on death row to be executed are violative of the federal and state constitutional bans against cruel and unusual punishment. 

A friend, who's done a lot of capital litigation over the years, told me once that "the death penalty brings out the worst in everyone."  I'm not sure he's wrong. Ending it is no panacea for our bad instincts.  The system is still racist, still driven by vengeance, still unimaginably cruel, still far more concerned with getting it done than with getting it right, still . . . .

But in this one way, by this act, Connecticut moves forward just a bit.  Out of what Norcott and McDonald call (in the words I purposely omitted from the quote above so I could quote them for the first time here) "the macabre muck of capital punishment litigation," 11 lives are saved with the stroke of a pen.  The Talmud teaches (and there's argument about it, as there is about pretty much everything the Talmud teaches) but go with this version:

[W]hoever preserves the life of a single human being . . . it is as if he had preserved an entire world.

Eleven times over, Connecticut.

Amen.

UPDATE
And see Connecticut's own, Gideon and Norm Pattis.

Against My Better Hopes

I was talking with another lawyer about an appeal someone might be filing.  He thought it surprising that instead of rooting for a defense win, the criminal defense bar might actually be hoping that the prosecutor prevailed.  On the particular facts of the case, it would make better law.

No big deal, I said.  It's the sort of thing that happens more than you'd imagine.  I want to win the case for this client, but on the peculiar facts, the government's argument would do more good for the defense bar.

A variation involves getting a case into the Supreme Court - Ohio's, the U.S., or maybe the high court of your state.  Any court that gets to decide whether it will hear the case.  Consider:  

The supreme court hasn't ruled on an issue, but we've lost in an intermediate appellate court.  It's in the client's interest to get heard by the high court.  After all, whatever the odds, we might win and he'd get some relief (a new trial, a lesser sentence, sent home with an apology, whatever).  On the other hand, the court could take in the case and turn bad local law into bad statewide/nationwide law. 

Not a happy prospect.  But we do it anyway.  Because whatever we might wish to see happen, we don't represent the cause.  We represent the client.

And so, Richard Glossip, John Grant, and Benjamin Cole.  And the problem of counting to five.

Bring us a case, said Stephen Breyer joined by Ruth Bader Ginsburg.  Call the question.  It's time, once again, to ask whether the death penalty is unconstitutional for all these reasons.  

And he laid them out, those reasons he and RBG had, for 40 pages in a dissent from the decision to allow Oklahoma to kill Messers Glossip, Grant, and Cole using a mix of drugs including midazolam. If it were so inclined. 

It's clear that the two of them would vote, if they had a clear opportunity, to say that the death penalty is unconstitutional.  It's a fair assumption that the Generalissimo and the empathetic Latina would join them.  And then?

I spent a few days earlier this month with a couple of hundred death penalty lawyers.  Many of the top capital defense lawyers in the country were there.  And there was much talk about that fifth vote. 

It's Anthony Kennedy, of course, if it's anyone.  Lots of folks are ready to trust him.  As one smart, thoughtful, knowledgeable guy explained, neither Breyer nor especially Ginsburg is so naive as to call for a frontal assault on the death penalty without being damn sure that they'd win.

To which many of the others present, said

Maybe.  But maybe not.

And it's a hell of a risk to take.  

But the world is complicated.  And while the capital defense bar scrambles and tries to decide and works at putting together a strategy, the court in Oklahoma set dates for Richard Glossip, John Grant, and Benjamin Cole. On Friday, they filed a petition for rehearing.  They made this pitch.

The Court Should Grant Rehearing To Consider Whether The Death Penalty Is Unconstitutional Per Se. 

Which is what the lawyers had to do for their clients.  And what I imagine the State of Oklahoma will either oppose or ignore in the hope it goes away so they can get on with the killin'.  But what in their heart of hearts at least some in the prosecutorial, kill-'em-all community will wish the Court would take in.  To drive another nail into the abolitionist position.  Here's Bill Otis immediately after Glossip was decided.

1. Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence. For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.
2. If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg). Neither did. It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

I'm not sure Bill's right about the conclusions he draws from any of that.  In fact, I think he's wrong on 2. But on 1?  I don't want to find out.

And so, I - along with many other folks who oppose the death penalty and believe that it really is unconstitutional - find myself rooting against Glossip, Grant, and Cole.  Do I want them to be killed? 

No.  

Do I want the folks in Washington to take up their request - which may be their only hope?

No.

Damn.  This is fucked up.

Warren McCleskey - Maybe Yet

Monday the Supreme Court issued its opinions (yes, that's intentionally plural) in Glossip v. Gross addressing how Oklahoma gets to go about killing folks.  Writing for 5 of the the Supremes, which is all it takes, Hang 'em High Alito said that it was OK for OK to use midazolam as part of the execution drug sequence because the guys they were killing didn't suggest a better and readily available way for the good people of the Sooner State to murder them.

After all, Alito said in his opinion for the Gang of Five, since the Constitution authorizes the death penalty, states have to be able to kill folks.  

because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”

Which is nonsense, but hey, they want to kill people so they make shit up that allows it.

Anyhow, the interesting thing - and maybe the important thing - about Glossip isn't that Oklahoma (and other states that have been waiting) can jump right back into the killing biz.*  I mean, after the oral argument (and maybe before) it seemed pretty clear how the case was going to come out.  What didn't seem clear, what there was no way to predict, was that Breyer and Ginsburg would essentially declare the death penalty flat out unconstitutional and call for litigants to bring the issue to the Court.

That call has generated much handwringing in the capital defense bar this week.  The problem, as I suggested the other day, is counting to five.  It's pretty clear where Breyer and Ginsburg stand.  And it's widely assumed that if forced to answer the question, Sotomayor and Kagan would also vote for abolition.  But it takes five, and that's only four.  The fifth vote?  If there's no change in personnel on the Court, it'd have to come from one of the folks who just voted to kill Glossip and company.  One of the ones who signed off on 

it is settled that capital punishment is constitutional.

We know it won't be Scalia or Thomas, both of whom ridiculed the very idea that there might be something wrong with murder by the state.  Alito?  Not hardly.  The Ol' Balls and Strikes Roberts? No. The possible vote, the theoretically possible vote, the vote that some people think can be got, is Kennedy's.  Or not. Which is the problem.  

All of which makes especially timely Jeffrey L. Kirchmeier's Imprisoned by the Past: Warren McCleskey and the American Death Penalty.  

Kirchmeier uses the story of Warren McCleskey, and especially the Supreme Court's decision in McKleskey v. Kemp as a frame on which to hang the history of the death penalty in this country - and of efforts to abolish it.  

What Kirchmeier makes clear is that the history of the death penalty is inseparable from racism.  It's not that every execution is racially tainted, of course, but that the system is because the society is.  However much we might pretend otherwise.  However much they're looking to take the Confederate battle flag down from government buildings across the south.

It was May 13, 1978, when McCleskey, Bernard Depree, David Burney, and Ben Wright robbed the Dixie Furniture Company in Marietta, Georgia.  And one of them shot and killed Officer Frank Schlatt.    For that killing, Warren McCleskey ended up on death row.

In 1972, the Supremes decided Furman v. Georgia.  In that case, they held that every death penalty law in the country was unconstitutional.  But in application, not in theory.  The right law, it seemed clear, would pass constitutional muster.  While it wasn't absolutely clear what the problem was (all the separate opinions made it impossible to answer that question simply), the bottom line seemed to be that death sentences were freakishly arbitrary.  Potter Stewart famous phrasing captured the point.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.

Thing is, that was only the first sentence of the paragraph.  Here's the whole thing (footnotes and citation deleted).

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Four years later, in Gregg v. Georgia, the Supremes decided that the problem had been resolved. States, including Georgia, had figured out ways to narrow the category of cases where death was an available sentence and then to guide the jury's discretion in deciding who should get it.  They could identify the worst of the worst.

Enter David Baldus and Company.  They studied Georgia's death penalty, did rigorous statistical analysis.  And concluded that what Potter Stewart's "concurring Brothers" demonstrated in 1972 was true.  Race mattered.  In particular, what mattered was the race of the victim.  Kill a white person and the odds of a death sentence - all other things being equal - go way up.

And so to the Supreme Court went Warren McCleskey.  

And the court said it didn't care.  It was too tough.  Race pervaded the whole system.  If it couldn't be tolerated, there'd be nothing left.  As Justice Brennan wrote (citation deleted),

The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice.

With that decision, the last hope for abolition by judicial fiat died.  If racism wasn't enough, nothing would be.

It wasn't so much that a win for McCleskey would have forcibly stopped the whole thing.  Indeed, Kirchmeier shows that there was discussion about how he could have prevailed on such narrow grounds that there'd have been no upheaval.  But racism was the bottom line, and if the Court had bought it, the states would have had a tough job coming up with systems that would pass muster.

Abolitionists, as Kirchmeier explains, turned to public education and the legislatures.  And, if not then, than in this century have had remarkable success.

Still, with death sentences down (Texas hasn't sentenced anyone to die this year.  Texas!) and executions down, and now with Breyer and Ginsburg . . . .

Kirchmeier's is a valuable book.  He combines history with clear legal analysis.  And, perhaps most importantly, he reminds us that the people we condemn are in fact people.  So he tells not just the legal story of Warren McCleskey but the personal one.  Yeah, we killed him.  But we didn't kill the Golem.  We killed a man.  

While Officer Schlatt was a hero who died in the line of duty trying to help others, the term "hero" does not apply to Warren McCleskey, and the purpose of this book is not to make him into one.  But Warren McCleskey's story is an American story of childhood violence turned into adult violence, of a boy and man who experienced racial bias, and of a wayward life seeking redemption.  As such, to understand the broad range of issues in his case one needs to understand the human being.

Give the last word to Justice Brennan, words that Kirchmeier uses as the book's epigraph:

[W]e ignore [Warren] McCleskey at our peril for we remain imprisoned by the past as long as deny [racism's] influence on the present.

* * * * *

My thanks to Jeff Kirchmeier and Oxford University Press for making a copy the book available to me for this review.

-----------------

*Wasting no time, just hours after SCOTUS issued its opinion on Monday, the Oklahoma AG asked the Court of Criminal Appeals to set execution dates for Glossip and his co-petitioners in the Supreme Court. 

1 +1 +1 +1 +1 = 5

I have spent a lot of time in the last week speaking with people who had the good sense not to go to law school.  Bright people.  Educated people, many of them.  Folks who know more, far more, than the general public about our legal system.

They've been paying attention to the Supreme Court's opinions lately because, well, who hasn't been? (Don't argue; it's a rhetorical question.) And because I'm a lawyer, they're inclined to ask questions. Which I try to answer.  And I've found myself explaining the mathematics of the law.

Now, I'm not talking about any high falutin, fancy ass, full dress stuff.  It aint rocket science.  It's not calculus, not non-Euclidian geometry.  I'm talking basic numbers.  1 through 9.  And, well, not even arithmetic.  Just basic counting.

1, 2, 3, 4, 5

That's it.  OK, you made it to five.

Justice Brennan used to hold up a hand, fingers splayed, before his new law clerks.  "You know what this is," he'd ask.  "It's five.  With five votes, you can do anything around here."

Which is true.  Except insofar as it's not.

In the beginning, (1972) there were two:

• William Brennan
• Thurgood Marshall

And then, 22 years later (1994), a third.

Harry Blackmun

The fourth came after another 14 years (2008).

John Paul Stevens

Now, a mere 7 years later (2015), two more.

Stephen Breyer
Ruth Bader Ginsburg

Which is 6.  And yet not 5.

Because we're talking votes, not heads.  And accomplishing something takes not 5 heads but 5 votes. At one time.

In 1972, in separate opinions in Furman v. Georgia, Justices Brennan and Marshall explained why they believed the death penalty unconstitutional - not merely as applied by the states under then-current law, but across the board.  And while there were five votes to strike every death penalty law on the books, five votes to empty death row, there were only two who were ready to end it for good.

Brennan retired in 1990.  Marshall in 1991.  When Harry Blackmun announced his opposition in Callins v. Collins,  he was alone on the Court.  Not a third vote, but a first.  When he retired some six weeks later, it was back to none.

And so it stood.  Until Baze v. Rees in 2008 when John Paul Stevens said that they hadn't shown Kentucky's lethal injection protocol was constitutional, but the death penalty itself, which was not then before the Court, was not.  Again there was one vote.  Even though he was number four.

Monday it was Breyer, joined by the Notorious RBG in Glossip v. Gross.  Which would be three, except that Stevens retired in 2007.  So, now it was two.

And while it may well be that Kagan and Sotomayor would, if the question were called, add two more votes, it's not enough.

So 6 votes.  Call it a supermajority, if you like.  But it's a case where 6 is less than 5.  And it's less than 5 even if 6 is really 4.

And so, we turn to Anthony Kennedy.  Who is the only one of the remaining Justices who just might jump ship.  And who's key to the major question:

Can you count to 5?

Breyer asks that someone raise the question.  Which is great if there are five votes but sucks if there are only 2 (or 4).  Since that would simply entrench. 

So? Josh Lee think we can get him.  Some days I agree.  Other days, not so much.

What to do?  Do the math.

Crisis in the Cornhusker State

Let's review.

• December 2, 1997:     Robert E. Williams killed in Nebraska's electric chair for the rape and murder of Catherine Brooks 20 years earlier.  
• February 8, 2008:     Nebraska Supreme Court declares the electric chair is cruel and unusual punishment and therefore unconstitutional.  Nobody has been executed in Nebraska since Williams.
• September 1, 2009:     Nebraska legislature purports to fix the problem, changes the state's execution method to lethal injection with the traditional three-drug sequence.  Nobody has been executed in Nebraska since Williams.
• December 2013:     Nebraska's supply of thiopental expires.  Nobody has been executed in Nebraska since Williams.
• May 20, 2015:     Nebraska's unicameral legislature votes 32-15 (two members not present) to abolish the death penalty sending the bill to Governor Pete Ricketts who promises to veto it and will fight like hell to ensure that the leg doesn't override his veto.  An override would take 30 votes.
• May 27, 2015:     This time everyone shows up to vote.  It's tense.  Lots of speeches.  Lots of reference to the Bible.  Jesus is invoked as favoring the death penalty and as opposing it.  Then the roll call (which is actually electronic but still suspenseful).   
• May 27, 2015:     (It's worth 2 entries.) Override 30-19.  No votes to spare, but they don't need them. Nebraska is now the 18th state without the death penalty.  32 to go.  (Don't hold your breath.)

It's been four days now.  
Doug Peterson, the Attorney General, says that Nebraska is free to kill the 11 guys already on death row.  And it's damn well going to.
Governor Ricketts says he agrees.  And, by the way, he's paid $54,000 out of the state treasury to acquire an updated supply of the necessary drugs.  Line 'em up.  Strap 'em down.

But what about abolition?  Didn't the law just change?  Sure.  And here's what it says on the point:

It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.

Which means what, exactly?  It is law or hope?  Does it count?  As my old torts professor is law school used to say when anyone asked a question,

How the hell should I know?

I ain't no Nebraska lawyer. 

But there's this.  That $54,000 for killin' drugs?  Nope, can't bring 'em into the country.  So says the FDA.  Can't use 'em.  Sorry, boys.  To which Nebraska says, 

Fuck you.

More precisely.

After being informed of the FDA’s statement, James Foster, a spokesman for the Nebraska Department of Corrections, said the agency has been advised by the attorney general that its actions are “proper and legal.”

Oh, sure, in 2013 a federal court ordered the FDA to block importation of these drugs.  And sure a federal appeals court upheld that ruling.  But hey, we're Nebraska (says Nebraska).

Attorney General Doug Peterson has said the 2013 ruling does not apply to Nebraska because the state was not party to the case, which involved death row inmates in Arizona, California and Tennessee.

Except that the order was to the FDA to block importation, not to Arizona, California, and Tennessee to not use the drugs.  Which makes a real difference.
On the other hand, it's almost 18 years since Nebraska last killed anyone.  And the Governor is chomping at the bit.  

Rule of Law? Law of Rule?  You be the judge.

Judge Kopf Can Sleep Better Now!

Nebraska abolishes the death penalty.

Led by Ernie Chambers, the legislature overrides veto by vote of 30-19.

Sleep tight, Judge.

The Velvet Hammer Speaks

Had the logistics been better, I'd be writing this from Madrid where I would be attending the 5th World Congress Against the Death Penalty.  The logistics weren't better.  I'm sitting at my dining room table in Ohio.  

Eve Stratton isn't there, either.  Maybe she should be.  Alan Johnson has the story in the Columbus Dispatch.

Former Ohio Supreme Court Justice Evelyn Lundberg Stratton said today that she has changed her views and now opposes capital punishment.
Stratton, a Republican who left office late last year, told members of an Ohio Supreme Court task force reviewing the death penalty, said while she did not have a strong feeling about capital punishment while serving on the court, her views have changed now that she’s retired.

All that time on the court, affirming death sentences right and left, finding no problem with the law itself except that the legislature didn't exempt the seriously mentally ill.  

(She could have cast her votes against death in when those cases reached the court; she could have said that serious mental illness was by itself a mitigating factor sufficient to prevent death; she didn't, just said that the General Assembly should enact the exemption.  But I'm carping, and this isn't the time.)

Now though, now that she no longer has a vote, she's had an epiphany and found a voice.

“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition....Overall, it’s just not the best way to deal with it on a number of different levels.”
Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victim families don’t gain the finality they seek when the murderer is put to death.
Stratton said she would still have objections even if many of the issues being reviewed are resolved by Ohio Supreme Court task force studying the issue. 

Hindsight is easy.  She can relax now and just think about it without the pressure of actually having to decide whether this one or that one should die.  No more briefs to read, oral arguments to attend.  At leisure, it came to her.
 
That's not altogether fair.  She took the cases seriously, I think.  She wasn't lying, wasn't showcasing the day she leaned forward over the bench and into the microphone as she did when asking a question during oral argument.  She looked at me standing at the podium, arguing about how and why the fact that my client was a black man who'd attended a segregated school after the Supreme Court said that was unconstitutional had some relationship to mitigation, how weighed with other stuff it should have got his death sentence vacated.  "Counsel," she said.

We struggle with these questions.  Can you give us some guidance?

Frankly, I don't think they did all/do all struggle.  For some it's easy.  Not so for she who was known as The Velvet Hammer for her approach to sentencing before she was appointed to be one of the Columbus 7.

Of course, opposition to the law isn't the same as a consistent vote.
 
Justice Pfeifer wrote our death penalty law.  He opposes it now.  But he'll vote to affirm death sentences he thinks legally justified as he'll sign off on execution dates because it's the law and he thinks it constitutional.  I suspect that would be Stratton's position, too.  Only O'Neill opposes the death penalty and will vote every time to save a life, as he dissents every time from the setting of an execution date.  But he thinks it's unconstitutional.  The others just say it's terrible law, worthless, bad policy.  And - and this is key - beyond repair.

So good for Stratton.  It's actually big news.  Another conservative Republican who's studied the thing and thought about it and says it's stupid and senseless and can't be made to work. 

Another voice.  A powerful one if she wants it to be.

Welcome

Perhaps we'll both attend the 6th World Congress in a couple of years.

Law Day USA

Tomorrow morning, Governor O'Malley is finally going to sign the bill abolishing the death penalty in Maryland.  It's about time.  I mean, the guy pushed and pushed for the law, finally got it enacted, and now he's waited more than a month to sign the thing.  (OK, I know absolutely nothing about Maryland's legislative procedure - maybe he was required to wait this long, but I doubt it.) 

It's prospective only, which means the bill doesn't actually take anyone off Maryland's death row who's currently there, though O'Malley has the authority to commute all their sentences.  Abolition laws in New Mexico and Connecticut were also prospective only.  Last week, the Connecticut Supreme Court heard oral argument on whether the law must also apply to the 11 men on death row there at the time the law was enacted.  You can watch the argument here.

Anyway, Maryland will end it, and thereby become the sixth state in six years to abolish the death penalty.  The others are New York, New Jersey, New Mexico (the fourth new, New Hampshire, has come close but hasn't made it), Illinois, and Connecticut.  And it's at least possible that Delaware will join that crowd this year.  Hell, they're actually going to have a hearing in the Texas House on an abolition bill.  It won't go anywhere, of course, but this is the fourth time the bill's been introduced and the first time it's gotten this far.

Of course, we're still killin' folks.  Through the end of April there have been 9 executions around the country this year (4 of them in Texas).  And Florida just passed a bill that, if the governor signs it, would put executions on a super-fast track.

In that spirit, and today, which is Law Day USA (so named by presidential proclamation in 1958 and congressional action in 1961 in response to May Day celebrations by godless communists and their ilk), the State of Ohio has this morning executed Steven Smith.  Earlier this morning, our state Public Defender, Tim Young, put out this statement.

Today Ohio will execute Steven Smith. And after the state kills Mr. Smith there will be “no winners here tonight”. This is the title of a 2009 book by Andrew Welsh-Huggins that examines the death penalty in Ohio. The title says all that needs to be said. Ohio will not be a better place tonight for Steven Smith’s execution. Ohio will have not reduced crime, murder rates will not go down, and Ohio will have one more death rather than fewer. And even the victim’s family, who want closure, will still grieve.

The Old Line, The First State, and the Buckeyes

I'd decided not to write about Maryland abolishing the death penalty until it actually does.

Despite all the hype and media coverage and announcements that it's done now that both houses of the legislature have passed the bill and the governor has promised to sign it (hell, he pushed it - hard), it ain't over 'til it's over.  The fat lady hasn't yet sung.  The countdown continues.  Pick your own cliché.  The fact is that Maryland has the death penalty and will have it until Governor O'Malley signs the bill into law.  (And until it takes effect.  I don't know whether there's a waiting period between signing and effective date in Maryland.)  It might be a foregone conclusion, but I'm a cynic.  And cautious.

As I said, I wasn't going to write about Maryland until it was done.  But then The First State (Delaware) came along, held hearings, and on Tuesday the state Senate by an 11-10 politically fragmented vote (5 dems and 5 republicans against; 3 republicans for) for abolition.  Well, abolition light; they specifically amended the bill to allow the 17 folks currently on death row there to be killed.  And it's far from clear that the bill will go any further.  Still.

Delaware's actually an interesting case for abolition.  In at least one respect it's closer to Texas than to - well, almost anywhere but Oklahoma.  For a long time Delaware led the country in executions per capita.  (The latest numbers I've seen have it solidly entrenched in third place, behind number one Oklahoma and Texas, but they're a couple of years out of date, and I'm not about to do the math to figure out today's standings.)  So when Delaware moves toward abolition that's something to note.

Still, I was going to wait.  Let's see what happens, I thought.  Let it all play itself out.  The time to cheer is when it's done.*  Until then, it's still time to work.

As Maryland moves forward and Delaware maybe moves forward with an end to killing in sight, we here in Ohio ("the Heart of It All" per the tourism slogan) look at the future and plan another.

His name is Alva Earl Campbell, Jr. and this morning the Supreme Court of Ohio, in its majesty, decided (6-1, O'Neill, as has become his practice, dissenting) that he should be put to death on July 15, 2015.  

If you're counting, he's currently number 13 on our execution list.


--------------------
*There was much hope that Colorado will quickly follow Maryland, but on Tuesday a House committee there killed it's abolition bill after the Governor suggested a likely veto.

Withering Away - The News of the Week

When you don't get around to blogging for a week, you miss a lot.

I'd like to have written about how the Senate in Maryland voted to abolish the state's death penalty.  It seems a certainty that the House will follow suit.  (The Senate was less sure.)  Then Governor O'Malley - who's been pushing this - will happily sign the bill.  Maryland will then be the sixth state in six years to become abolitionist.  

There are efforts, with varying degrees of plausibility, in Washington State and Colorado and New Hampshire (where a former governor vetoed abolition legislation a few years ago, but the current governor is willing to sign it) and probably a few other places be next in line.   Of course, there are also efforts to bring back the death penalty in places like Iowa.  But we're clearly gaining more ground on this than we're losing.

Meanwhile, in Oregon, the state Supreme Court is getting set to hear oral argument on Thursday on whether Gary Haugen's lawsuit against Governor Kitzhaber.  Haugen claims that he has a right to, and wants to, refuse Kitzhaber's reprieve of his death sentence.  Haugen wants to die.  Kitzhaber doesn't want to kill him but hasn't actually commuted his death sentence.  Haugen won a less-than-enthusiastic victory in the Oregon trial court.  One of his claims is that a life sentence (which would be the alternative if he's never executed, although the reprieve is actually only through the end of Kitzhaber's term, so the next gov could feel free to kill Haugen) would be cruel and unusual punishment in violation of the 8th Amendment.  Hmmm.

SCOTUS is getting set for oral arguments on same sex marriage.

Leading up to passover, there's a plague of locusts in Egypt.

The blawgosphere (or at least the corner of it I follow), is all atwitter (and maybe a-tweeting, but since I don't, I don't know) over jurors asking questions (see Turk and Greenfield and Gideon and Matt Brown).  Here in Ohio we've got some experience with juror questioning since the Ohio Supremes endorsed it (at the discretion of the trial judge) a number of years ago.

The criminal lawyers who've experienced the process (lots of judges just won't do it - or won't if anyone objects, so it's very far from a universal practice) are split.  Some think it helps them.  Some think it hurts.  The judicial proponents of it say it enhances the goal of trials being a "search for truth" and that anything advancing that goal is a positive.  We who do criminal defense, know that the search for truth (gee, what actually happened that afternoon?) is rarely a bonus for our clients.  Hell, if all you want to know is what happened, why bother with things like the rules of privilege?  (Ooops, don't mean to make any suggestions here.)

Also, it makes jurors happy with the judge.  And our judges are elected.

My view, argued in court, in appellate briefs, in a cert petition, and in public forums with one of the judges who spearheaded the drive in Ohio, is that ours is an adversary system where the issue is what the government manages to prove.  Jurors getting to satisfy their curiosity is at odds with that.  They don't get to investigate the facts on their own.  And they don't get to question.  Or at least they shouldn't.  (Neither, by the way, should judges, I don't think, though that's an even tougher sell.)  And it carries, always, the risk that they'll ask the question that helps the government make its case.
 
And a judge in New York called a halt to Mayor Bloomberg's ruling that sugared soft drinks can't be bigger than 16 ounces.

But none of that is what I want to write about.  What I want to write about is what's happened in the Old Dominion State.  Here are some numbers:

• 110
• 2
• 57
• 8
• 3
• 1
• 0
• 1
• 2
• 0

Here's what they mean.  From the top:  Virginia has executed 110 men since executions resumed in 1976.  That's number 2 in the nation, after Texas.  In 1995, there were 57 folks on death row there.  Right now there are 8.  And it's not just 'cause they've been killing their way to a smaller row.  In 2010, there were 3 executions.  There was 1 in 2011.  None at all last year.  One so far this year.  In the past five years, they've put only 2 people on the row.  None at all last year.

It's quite extraordinary.  Some of it's court decisions.  Some of it is in fact killing.  Some is changing attitudes.  But here's the bottom line from David Bruck, one of our great capital defense lawyers and director of the Virginia Capital Case Clearinghouse at Washington and Lee University School of Law, as quoted by AP.

The process has largely ground to a halt. That is a huge development.

There have been just 4 executions in the US of A this year.  One each in Virginia, Texas, Georgia, and Ohio.  There are lots of reasons, and the pace is likely, I suppose, to pick up a bit, but that's tiny compared to what we've seen in past years.

The process has largely ground to a halt.

That's what I wanted to write about.

Of course, that all may prove to be trivia for us here in the good ol' USA if Dennis Rodman's good buddy Kim Jung-Nuts carries out his threat of a first-strike nuclear attack on us.

And Then There Were None

Oh, sure.  The Supremes said (in a package of opinions that runs 193 pages) that the Affordable Care Act isn't unconstitutional in a grudging few pages by Chief Justice John Roberts.  Along with those pages, he wrote a screed explaining why the Commerce Clause has no teeth and shouldn't ever be used for any purpose except maybe regulating interstate tarrifs.  Maybe. That part of his opinion was echoed by the four dissenters, making a clear 5-4 majority for mostly writing the Commerce Clause out of the Constitution.  And the Necessary and Proper Clause, too, as long as they were at it.

But really, that's so yesterday.

So come with me to the WABAC machine.

Set date for 40 years ago, June 29, 1972.

That's when the ones in robes took 233 pages to explain, by a vote of 5-4 with each of the 9 writing separately following a one paragraph order, that every death penalty law in the nation was unconstitutional.

The case was Furman v. Georgia, and it emptied death row.

Because, said William O. Douglas,

[W]e deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.

Because, said Thurgood Marshall,

It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape.

Because, said William J. Brennan,

Death is an unusually severe and degrading punishment; there is a strong probability that it is inflicted arbitrarily; its rejection by contemporary society is virtually total; and there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment. The function of these principles is to enable a court to determine whether a punishment comports with human dignity. Death, quite simply, does not.

Because, said Byron White,

[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. The short of it is that the policy of vesting sentencing authority primarily in juries—a decision largely motivated by the desire to mitigate the harshness of the law and to bring community judgment to bear on the sentence as well as guilt or innocence—has so effectively achieved its aims that capital punishment within the confines of the statutes now before us has for all practical purposes run its course.

Because, most famously said Potter Stewart (footnotes deleted),

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously 310selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U. S. 184. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

There hadn't actually been an execution in this country since 1967, but there were 589 people (587 men and 2 women) on death row. And then, suddenly, there were none. Zero.

The Class of '72 walked off the row, into general population.  In time, not at once, not soon, but in time, many of them walked out of prison.  The worst of the worst, the irredeemable.  And you know what?  The Republic didn't end.

The day did, of course.

The states began rewriting their death penalty laws.  Four years and three days later, on July 2, 1976, now by the vote of 7-2, in Gregg v. Georgia, and again for a variety of reasons though not quite so many, the Supremes said that some of those new laws were constitutional and others were not.

There are, as I write this, roughly 3,170 men and women (mostly men, of course) on death row in this country.  We have, as I write this, executed 1300 men and women since then.  (Number 1300 was Samuel Lopez in Arizona, killed on Wednesday.) We've killed, that is, more than twice as many as were spared when Furman was decided.

But as we kill, so there's another trend.

• Connecticut
• Illinois
• New Jersey
• New Mexico
• New York

Abolition.

Let's lift a glass.

Forty years ago today death row was emptied.

It can happen here.

Again.

Kill 'Em While We Can

They must be worried.

How else to account for it?

723 men and women on the row.  Just 13 executions.  It's been over 6 years since the last one.

But suddenly . . .

They must be worried.

How else to account for it?

They've spent years litigating around the margins, insisting that they can save the three-drug sequence the judge says is unconstitutional rather than switching to a one-drug scheme he says is likely fine.

But suddenly . . .

They must be worried.

How else to account for it?

Governor no-longer-Moonbeam Brown said just three-days after that they should consider switching to the one-drug method.

And suddenly . . .

They must be worried.

How else to account for it?

Because suddenly . . .

Kent Scheidegger, who may or may be worried himself, explains.

The legal theory in this motion is, in part, the same as in CJLF's petition for writ of mandate, noted in this post.  The California Department of Corrections and Rehabilitation has a duty to execute these sentences.  While that department has broad discretion on the specifics, continuing to litigate the enjoined three-drug protocol for years after the federal court has given the go-ahead to resume executions with a one-drug protocol is an abuse of that discretion.

Because they must be worried.

Which is why, suddenly . . .

Dan Whitcomb for Reuters:

Los Angeles prosecutors asked a judge on Wednesday to order the execution of two condemned killers using a single drug for lethal injections, a move intended to end a 6-year hold on the death penalty in California over the method used by the state.

The move comes days after Democratic Governor Jerry Brown told prison officials to consider using the single-drug execution protocol, and ahead of a November ballot measure that seeks to repeal capital punishment in the state.

Maybe it's just me, but the tea leaves here suggest that they're really scared abolition will pass.  And they won't get to kill all those folks.

 

Abolition Now, Abolition Forever

Just waiting on the governor now, and he said he'll sign.

But the Senate voted last week, and the House on Wednesday, and once the governor gets it done, it'll be over.

That's the death penalty and the State of Connecticut.

It's history.

Sort of.  Because there's the great compromise.  Those 11 guys on death row?  Kill 'em.  But from now on . . . .

LWOP, which as I've said before is death in prison.  And a particularly nasty form of LWOP.  Peter Applebome explains for the Times.

The legislation will make life in prison without possibility of parole the state’s harshest punishment. It mandates that those given life without parole be incarcerated separately from other inmates and be limited to two hours a day outside the prison cell.

Lovely.  Here's Governor Malloy.

Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience. Let’s throw away the key and have them spend the rest of their natural lives in jail.

And Representative Patricia Widlitz.

I think in many ways, that is a death sentence, with no chance of parole, no chance of doing anything with your life.

So LWOP.  Which is life but also death.

Except for those 11 guys.  They can still be killed.  The proponents of death tried to make an issue of it.  Daniela Altimari in the Hartford Courant, gives an example.

House Republican leader Larry Cafero called the measure "a fraud on the public" because the repeal is prospective and would not apply to the 11 men currently on death row.
"How can you say in your heart and with your vote that it should no longer be the policy of the state of Connecticut to commit anyone to death and yet at the same time say, 'except for these 11 guys?''' Cafero said. "How do you justify that?"

Applebome quoted him, too.

Republican critics of the bill said the exemption for those currently awaiting execution cast a cloud over the vote, both because it undercut the moral argument of death penalty opponents and because future appeals or government action had the potential to spare the 11 men.

“Let’s not mislead the public; let’s not mislead ourselves” said the House minority leader, Lawrence Cafero Jr., of Norwalk. “If it is the will of this chamber that this state is no longer in the business of executing people, then let’s say it and do it. You cannot have it both ways.” 

But of course politics, as Bismarck was apparently the first to say, is "the art of the possible." Altimari again.

Rep. Gary Holder-Winfield, one of the most vigorous supporters of the repeal effort, didn't dispute Cafero's view that the prospective part of the bill was born as a compromise. "But the reality is I am in a room with 150 other people and I'm not so young that I believe … I know everything,'' said the New Haven Democrat. "Part of what we do here is, we figure out how do we make things happen."
Holder-Winfield said he favors complete abolition, even for the 11 occupants of death row. But, he said, "If I can't get the state to stop executing people that are already on death row, at least I can stop the state from executing people that may be on death row in the future."

Which is no small thing.  Even with a moral compromise along the way.