Act of God?

Let us return, briefly, to the Peach Tree State where they keep deciding not to kill Kelly Gissendaner for reasons that have nothing to do with their urgent desire to kill Kelly Gissendaner.

You'll recall that she was to be killed Wednesday last week.  But then, drat, a couple of inches of snow. Can't have that.  It's the south, after all.  People don't know how to drive in the snow so how would they get to see.  State killing as spectator sport.  Nope. 

So they had a rain snow delay.*  Make up game killing was scheduled for Monday this week.

Gissendaner's lawyers took the chance to ask the Board of Pardons and Paroles to reconsider its decision to have her killed.  They refused.

But it turns out that the pentobarbitol they were going to kill her with, previously tested by someone somewhere 

who assured the killers that the drug gathered from someone somewhere

were good

was mysteriously cloudy.

Now, if Georgia hadn't decided, and the courts agree, that everything connected to the drug must be a deep dark secret, done in a cave (no more pictures, sorry), by He Who Must Not Be Named, they might have actually got drugs they could trust and had them vetted by someone they trusted and . . . . Nah.

Ah, fuck it.  They decided not to kill Kelly (and also not to kill Brian Terrell next week) while they tried to figure out just what mysterious force turned pure pentobarbitol into a milk shake.

I don't believe in god, which makes me resist the urge to suggest some sort of divine intervention.  

But for those who do . . . .



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*It's probably not relevant that the Braves from Atlanta lost the first game of the exhibition season to the Mets yesterday and that the Mets are from New York where it snows with some regularity.

For a Chance To Chat

It was February 1997 when Doug Gissendaner was found stabbed repeatedly, murdered, in a remote wooded area of Georgia, about a mile from where his car was recovered.

He'd been missing for a week.

Gregory Owen pleaded guilty to the murder. But he was, according to the prosecutors, just the instrument.  All he did was kill.  The, er, mastermind was Kelly Gissendaner, Doug's wife.  She and Owen were having an affair.  He wanted her to divorce Doug.  She wanted Owen to kill him.  

Greg's doing life.  Kelly's on death row.  She's to be killed today.  She'll be the first woman in Georgia to be executed in 70 years.

This isn't about her.  It's about her daughter, Kayla, who was 7 at the time.  Kate Brumback in the Washington Times quotes a letter she wrote to the Parole Board.

My father’s death was extremely painful for many people, but I’ve recently concluded that in many ways I was the person who was most impacted by his murder. 

Her father's death was, she said,

the most painful experience of my life.

She wrote in the letter about her bitterness and anger.  She wrote about how she wanted no contact with her mother.  Which you've gotta say is hardly surprising.  

But she, and her brother Dakota who also wrote, talked about how that has, over the years, changed. They have, in Brumback's words, formed meaningful relationships with her now.  Kayla:

The impact of losing my mother would be devastating. I can’t fathom losing another parent. 

Years ago, I listened as members of a capital jury explained how it is that they'd decided against sentencing a woman to death for ordering the contract killing of her husband.  In that case, their children had testified against their mother, had talked to the jury about how what she'd done had destroyed their lives.

And yet the jury voted for life.  Not because the mother didn't deserve to be killed, they said.  Not because of anything about her.  But because, finally, those jurors concluded, that someday the kids might want to know just why their mother had their father killed.  Someday, those jurors concluded,  
her children might want to ask their mother about it.  Someday, those jurors concluded, her children might just want to talk with their mother.  

If she were dead, they wouldn't have that chance.

Kayla and Dakota Gissendaner would understand. 

Retards Killing the Intellectually Disabled

A bit of history.

The year was 1989.  Johnny Paul Penry was, as even polite folks said in those days, mentally retarded.  He was also on death row in Texas.  That combination of things, his lawyers said, should be impossible.  The berobed ones in Washington agreed to answer whether they were.  Sandra Day O'Connor put the question simply in her opinion for the Court.

We must also decide whether the Eighth Amendment categorically prohibits Penry's execution because he is mentally retarded.

The answer (by a 5-4 vote) was a clear no.  Oh, it's something juries ought to be allowed to consider (Texas more-or-less prohibited even that at the time) when deciding what to do, but hey, killing the retards is cool.

In sum, mental retardation is a factor that may well lessen a defendant's culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of his or her mental retardation alone. So long as sentencers can consider and give effect to mitigating evidence of mental retardation in imposing sentence, an individualized determination whether "death is the appropriate punishment" can be made in each particular case.

Fast forward to 2002.  Daryl Renard Atkins was on death row in Virginia.  Like Johnny Paul Penry, he was intellectually disabled.  The Supremes decided to have another go at it.  John Paul Stevens, who'd dissented in Penry began his opinion (for a different 5-4 majority) this way.

Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution.

And so it was that Penry was overruled and execution of the intellectually disabled was recognized as unconstitutional.  

The catch was that the Court decided to let the each of the states that killed people decide for itself how to figure out who was sufficiently, er, slow.  Oh, sure, there were actual standards, clinical definitions by people who studied this shit out there, and the Court said they should count, but if you were, say, Florida, you didn't care about that.  You just made an arbitrary cut-off of 70 and said if someone had a number higher than that, 

Off with his head.

The Supremes took on Florida's rule last year in the case of Freddie Lee Hall.  By the familiar 5-4 vote, they said, in an opinion by Kennedy, Florida blew it.  That there were actual standards, clinical definitions by people who studied this shit.  Florida couldn't just make it up.  Alito, dissenting, said that sure they could.  

Hey, we're talking about whether to kill the retards, not whether to treat them.  Who cares what experts say?  We have elected legislators and judges who are far more able to decide who has an intellectual deficit than people who study the matter.  I mean, retards can always recognize another retard, right?*

Ah, but Georgia.  The Peach Tree State.  Where the guy on the row must prove beyond a reasonable doubt that he's a retard (as they probably still think it's proper to say down there).

Warren Lee Hill was in prison when he killed Joseph Handspike, another inmate.  They've been trying to kill Hill ever since.  Thing is, as Alan Blinder writes in the Times,

Although Mr. Hill’s appeals sometimes involved questions about Georgia’s lethal injection protocols, his last legal campaign dealt with a contention of an intellectual disability. Mr. Hill, with an I.Q. of 70, had “the emotional and cognitive functioning of an 11-year-old boy,” Mr. Kammer [one of his lawyers] said.“Warren Lee Hill is intellectually disabled,” Mr. Hill’s lawyers told the Supreme Court in a filing. “The lower Georgia courts have said this twice. All of respondent’s experts have acknowledged this fact.” 

Get that.  Hill's experts say he's intellectually disabled, and so do the experts Georgia dug up.  I mean, the state can't find an actual whore psychologist who'll say Hill isn't intellectually disabled (as they probably don't bother to say down there). 

And then there are the courts.  The ones that took the evidence and twice said he's intellectually disabled.  And were overruled by higher courts because they're fucking retards (as we say up here of the Georgia high court).

And last night, after Georgia parole board or whatever they call it said to kill and the governor signed off on it and the 9 in DC said, it was OK (actually, only 7 of the 9 - Breyer and Sotomayor voted to call a halt at least to consider), they did.  Last night.

By the way, around the time the good people of Georgia were committing an execution in violation of the 8th Amendment, the Texas Court of Criminal Appeals announced that it had no problem with that state's killing Robert Ladd tomorrow night despite the fact that he's intellectually disabled. 

Because, really, nobody gives a damn.

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*Disclosure: That's not an actual quote.    

Of Course If We Took the Constitution Seriously, We'd Never Execute Anyone. Then Where Would We Be?

GEORGIA ON MY MIND

I wrote about Warren Lee Hill a couple of weeks ago.  He's on death row in Georgia and the powers that be in the Peach Tree State are intent on killing him.  Of course, it'll be unconstitutional for them to do that, but so far nobody much seems to find that troubling.

Warren Lee Hill

See, he's mentally retarded.  All seven experts, including those hired by the state, who've examined him agree.  But Georgia doesn't find that sufficiently compelling evidence.  See, originally the state's experts disagreed, and in Georgia retardation only counts if it's proved beyond a reasonable doubt.  Which, they say, it wasn't.  So just because the expects who once said Hill wasn't retarded have reconsidered in light of new understandings of retardation and now say he is - well, if we let actual understanding get in the way we'd never kill anyone. Besides, there are all these procedural things that make it pretty much impossible for Hill to get relief.

But the Supreme Court, they can fix it.  Surely the won't let an obviously unconstitutional execution go forward.  They, after all, are the last word on what the Constitution does and doesn't allow.  And they're the ones, remember, who said that the constitution doesn't allow the execution of people who are mentally retarded.

Monday the Supreme Court refused to intervene.  

Hill's case is still mired in the courts with other legal issues, but they're likely to be resolved against him.  Then, with the blessing of the Supreme Court, Georgia can violate the Constitution and kill him.

SO GOES THE NATION

Much more legislation is proposed than is enacted.  That's not just true in Washington where it seems that nothing of substance can be done.  It's true in the state legislatures, too.  So it was that back in August when Representative John Becker, with not a single co-sponsor, introduced House Bill 244 for consideration by the Ohio General Assembly I determined to ignore it and suggested to those who expressed their concerns to me that he was just grandstanding.

Oh, Becker did what legislators do when they introduce a bill in order to get a headline.  He issued a press release.   Here's the whole thing.

Becker Introduces Bill To Broaden Death Penalty For Sex Crimes

COLUMBUS - State Representative John Becker (R-Union Township) today announced that he has introduced House Bill 244, legislation that provides prosecutors with the option of pursuing the death penalty for certain sex-related crimes.

“In light of the Ariel Castro kidnapping case of three young women in Cleveland, I wanted to give prosecutors the option to pursue the death penalty for repeat sexual offenders,” Rep. Becker said. “For various reasons, I anticipate that the death penalty would be pursued in only the most heinous crimes.”

The crimes in the legislation include aggravated rape, aggravated rape of a child, aggravated sexual battery, aggravated sexual battery of a child, and aggravated unlawful sexual conduct with a minor.

“If House Bill 244 becomes law, prosecutors would be able to use the death penalty threat as a tool for plea bargain negotiations,” Rep. Becker said. “Nobody in this country has ever been executed for a sex crime, but that could change.”

The legislation will soon be referred to a House standing committee for further consideration.

It would be clearly unconstitutional.  In 2008, the Supreme Court said in Kennedy v. Louisiana that the death penalty for an offense that didn't involve a homicide was unconstitutional.  And it's stupid.  Becker's announced purposes, after all, are to both ensure that some folks are killed and to use the threat of execution to get plea bargains.   Really, he can't have it both ways.  Either he wants to see these guys executed or he wants to scare them into pleading guilty.  

Representative John Becker

Becker was inspired by the Ariel Castro case which made him realize that something had to be done to execute (or scare in pleading) people like Castro.  You remember Castro.  They threatened to bring capital charges and he entered a guilty plea.  Guess they didn't need this bill, which is a good thing, because it actually wouldn't apply to people who do what he did.

Anyhow, after a brief flurry in response to the press release, the thing disappeared from everyone's radar.  No one paid it any attention at all.  Until this week when there've been another bunch of stories in the press.  Becker's been running around saying that he thinks this can be used to convince the Supremes to overrule Kennedy.*  Because Ariel Castro.  To whom the thing wouldn't apply.  

And who, it should perhaps be noted, executed himself without Becker's assistance.  

On the other hand, the Supremes are perfectly happy to let Georgia conduct an unconstitutional execution.

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*Over at A Public Defender, Gideon wrote:

In Kennedy, Kennedy wrote that the 5 states that had authorized such a penalty did not constitute a “national consensus” and that it violated the prohibition against cruel and unusual punishment.

Rep. Becker wishes to create that “national consensus”, stating that the bill is modeled after the law in half a dozen states. Which is 6. 6 states out of 50. And which is decidedly not the law. See, Kennedy, supra.