Pre-Holiday Presents and Other News Items

I could write about how death sentences are down.

I could write about how Judge Faye D'Opal of Marin County Superior Court said that California's six-year effort to revise its execution process resulted in an invalid procedure and the whole thing needs to be restarted.  Judge D'Opal explained.

The Initial Statement of Reasons (ISOR) and the Final Statement of Reasons (FSOR) each substantially failed to comply with the APA requirements by not considering and describing alternative methods to the three-drug protocol; by failing to provide a sufficient rationale for rejecting these alternatives; and by failing to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug procedure, in violation of § 11346.2(b)(3)(A) and § 11346.9(a)(4).
“If an agency adopts a regulation without complying with the APA requirements it is deemed an ‘underground regulation’ (Cal. Code Regs., tit. 1, § 250) and is invalid. [Citation.].” (Naturist Action Committee v. California State Dept. of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250.)

I could write about how the feds have finally figured out that Sheriff Joe doesn't much like people of Hispanic descent.  Shame on him, they say. 

Per Marc Lacey in the NY Times.

“We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights, noting during a conference call with reporters on Thursday morning that more than 400 inmates, deputies and others had been interviewed as part of the review, including Sheriff Arpaio and his command staff. Mr. Perez said the inquiry, which included jail visits and reviews of thousands of pages of internal documents, raised the question of whether Latinos were receiving “second-class policing services” in Maricopa County.
Mr. Perez said he hoped Sheriff Arpaio would cooperate with the federal government in turning the department around. Should he refuse to enter into a court-approved settlement agreement, Mr. Perez said, the government will file a lawsuit and the department could lose millions of dollars in federal money. 

I could write about how President Obama decided that revisions to the defense authorization bill satisfied his concerns so he won't have to veto the bill.  This, of course, is the bill that, as Charlie Savage put it in the Times, authorizes

the government to detain, without trial, suspected members of Al Qaeda or its allies — or those who “substantially supported” them.

Former constitutional law professor Obama's concern, of course, wasn't that eternal detention of US citizens in military prisons simply because they are suspects might violate the Constitiution.  Pish tosh.  No, his concern was that the FBI would be hamstrung in its efforts to interrogate those folks.  The FBI still thinks it will, but his Barakness is no longer worried.

Those things and more could be the subject of this post.  And one or another might have been.

Except that the Ohio Supreme Court, bringing holiday cheer early (albeit slowly) to the prosecutors of Summit and Preble Counties, this morning granted their motions to kill.

• Ronald Phillips is to be killed by the State of Ohio on November 14, 2013.
• Dennis McGuire is to be killed January 16, 2014.

Presumably, neither Phillips nor McGuire will cherish this holiday gift.  Regardless, Ohio has now got murders planned more than two years into the future.

Justice Pfeifer, who on Wednesday explained that his personal opposition to the death penalty wouldn't prevent him from signing off on executions signed off on both murders.  

And there's still two weeks left to the year.

Justice Pfeifer Speaks

The bill, as introduced, is 154 pages long, but there's no reason for you to slog through it.  Hell, I'm not even bothering to post the thing on line.  You want to read it, here's the link.  Really, though, and especially since it won't become law, the bottom line is all that matters.  And the bottom line is that House Bill 160 would abolish the death penalty in Ohio.

The rest is, really, surplussage.

OK, as I said, HB 160 won't be enacted.  Not a chance.  It's one of a long line of abolition bills to be introduced in the Ohio General Assembly.  Happens every few years.  But this time it's different.

First, it's different because the time is different.  This is the year that Terry Collins, former director of the Department of Rehabilitation and Correction said we should abolish the death penalty.  This is the year that Jim Petro, former Ohio Attorney General published a book explaining how it is that we screw up and convict innocent people. This is the year that Maureen O'Connor, Chief Justice of the Supreme Court of Ohio, established a task force to examine the death penalty and see if it's as sure and perfect as human fallibility can make it. This is the year when we've killed five men we planned to but didn't kill the other five which may not seem like much from where you sit, but Governor Kasich actually commuted two death sentences to life and granted reprieves to two other guys which is quite remarkable.

And this is the year when the abolition bill in the General Assembly got a hearing.  This morning.

The highlight was Paul Pfeifer.

That's Ohio Supreme Court Justice Paul Pfeifer.  That's former state Senator Paul Pfeifer who was one of the three senate sponsors of our current death penalty law.  That's Paul Pfeifer who's called on the Governor to establish a committee to review every death sentence.  That's Paul Pfeifer who votes sometimes to affirm death sentences and who signs off on execution dates.  And it's Paul Pfeifer who told the House Criminal Justice Committee this morning that enough is enough.

Andrew Welsh-Huggins, AP reporter, was there.

"The statute does not work the way we expected," Pfeifer told the House Criminal Justice Committee. "What has enfolded is an application that is hit or miss depending on where you commit the crime and the attitude of the prosecutor in that county."

There's no political capital in this, but Pfeifer doesn't need it.  19 years on the Ohio Supreme Court, and he's secure.  And he knows what he's talking about.

He is, after all, the man who wrote the law he now says should be repealed.

After he testified in favor of abolition, he talked to the press. 

And through them, to us.

He says we'll abolish the death penalty one of these days.

Not soon enough for Charles Lorraine next month.  Not soon enough for a lot of folks.  

But Pfeifer's right, it'll happen.

Keystones and Buckeyes and the Prairie State

Let's look at some numbers.

• 37 - US jurisdictions with the death penalty (35 states, federal government, military)
• 15 - States without the death penalty (add DC and Puerto Rico for 17 jurisdictions, subtract 1/2 for New Mexico which abolished the death penalty prospectively but left 2 men on the row)
• 1237 - Executions in the US since 1976 when the Supreme Court said some death penalty laws were constitutional
• 46 - Number of executions in the US in 2010
• 3 - Number so far in 2011
• 3261 - Number of men and women on death row across the country as of January 1, 2011
• 2 - Number of states that have repealed the death penalty legislatively in recent decades (New Jersey & New Mexico)
• 1 - Number of states where the death penalty can be repealed immediately if the governor will sign the bill (Illinois)
• 50 - Number of states in which, if they have the death penalty, there are efforts to abolish it or at least reduce it's use and in which, if they don't have the death penalty, there are efforts to establish it.  Not all the efforts (in either direction) have any near term chance of success, and some are far more serious than others, but there's not a state that doesn't have somebody working on changing its status.

The main focus of attention on these issues right now is Illinois, of course, where abolition sits on Governor Quinn's desk.  He can sign it or not.  There are organized (and disorganized) efforts from abolitionists and retentionists.  He ain't talking.

But elsewhere there are some interesting things.  New Jersey has at least three bills offered that would reinstate the death penalty.  If one should make it through the legislature, which seems unlikely but a recent cop killing might give some legs, the Governor would probably sign in a heartbeat.

The new Governor of New Mexico would sign a reinstatement bill, too, but the legislature hasn't changed and there's nothing new in the landscape there.

Maryland's Senate President is trying to figure out how to jumpstart killing in that state which has been held up administratively.

And then there's Pennsylvania where Governor Rendell, on his way out of office, signed 6 execution warrants.  The 6 are no surprise.  Rendell's been more than willing over his 8 years as Governor.  He signed, in fact, a total of 119 execution warrants.  The thing is, he hasn't gotten to oversee even a single killing.  Not one.  The frustration is palpable.  So along with signing off on the effort to try and get 6 guys killed, he wrote a letter to the members of the legislature.

As a former district attorney and death-penalty supporter, I believe the death penalty can be a deterrent - but only when it is carried out relatively expeditiously.

But Pennsylvania doesn't do that.

However, a 15-, 20-, or 25-year lapse between imposition of a death sentence and the actual execution is no deterrent.

It's time, he says, to rethink the whole thing.  Either speed it up, or abolish it and provide for an absolute sentence of death in prison. 

Rendell Death Penalty Letter

There's a refreshing realism to Rendell's point.  If you have a killing system that doesn't work, why pretend.  Either make it work, or do away with it.

Which brings us (or at least it's the stop before I take this post) to Ohio and Supreme Court Justice Paul Pfeifer.  Pfeifer's an interesting guy in this context.  He was head of the Senate Judiciary Committee in 1981 when the committee debated and Ohio adopted its current death penalty law.  He helped write it.  He's known, or at least regularly referred to in the press, as "the father of Ohio's death penalty."  Since 1992, he's been a justice on the Ohio Supreme Court, reviewing every death sentence in the state.  And he's consistently been the justice most likely to vote to reverse death sentences.  The law, he's said repeatedly, was designed to be narrow in focus and used only in extreme cases.  To his dismay, it's been applied way more broadly than he ever intended.

None of this is new.  Back in May, Pfeifer called for a blue-ribbon commission to examine every death sentence in the state to see which, if any, would be a death case by today's standards.  (I wrote about that plan here and here.)  He emphasized at the time that he was not opposed to the death penalty.  He just thought it wasn't being used as it should.

Well, maybe that's changing.  AP reporter Andrew Welsh-Huggins says Pfeifer is calling for abolition.

An Ohio Supreme Court justice who helped write the state’s death penalty law three decades ago and has more recently questioned its interpretation called Tuesday for an end to capital punishment in the state.

Justice Paul Pfeifer also said Gov. John Kasich and any future governor should consider commuting the sentences of Ohio’s death row inmates to life without parole.

“These are important matters that need all of our thoughtful attention — need the attention of the Legislature to consider seriously whether we’re well-served by this statute any longer,” he said in remarks following his swearing-in ceremony.

“The time has come for us to make that change,” Pfeifer said

Pfeifer's is a powerful voice and I'm glad that he's finally come to admit that the experiment he launched 30 years ago should be stopped.  But as with Justices Brennan and Marshall, and later Justice Blackmun, and then Justice Stevens, he's but a voice.  Not enough.  Our new Governor, John Kasich, supports the death penalty.   Our old Governor Ted, who as best I can figure out might as well have flipped coins, could have come close to emptying death row as he left office.  He commuted a bunch of sentences but didn't touch any of the folks on the row.

Frank Spisak is due to be murdered on February 17.  Johnny Baston is to be killed March 10.  There's every reason to think those dates will hold.  The Ohio Supreme Court has requests for more dates.  Whatever Justice Pfeifer thinks, it's likely his court will schedule killings, one every 3-4 weeks, for the rest of the year.  And the year after.  And the year after that.

Ohio's death row is shrinking from both ends.  We're killing more of the ones who are on the row.  But we're also putting fewer there.  According to another version of the AP story, Pfeifer sees a lesson in that.

He says the recent decrease in death sentences is a sign society believes life sentences are punishment enough.

Ed Rendell and Paul Pfeifer.  They have little in common that I can see.  But they've both concluded, in different ways and for different reasons, that their state's death penalty system isn't working the way they'd hoped.

Rendell still holds out some hope that Pennsylvania's can do what he thinks it should.  He's wrong about that, but right about the alternative.  If it can't be fixed, shut it down.

Pfeifer knows Ohio's system can't do what he once hoped and thought it could.  Since it can't be fixed, shut it down.

Two more voices in the wilderness.

Governor Quinn?  You listening?

Measure Twice, Cut Once

At some point, you start to wonder.  A couple of months ago, I wrote this about Kevin Keith.

He's on death row in Ohio.  He was convicted of shooting six people, three fatally, in revenge for a member of the family being a police informant in a drug investigation.  As happens, the case was appealed and the Ohio Supreme Court affirmed the conviction and death sentence. The state's case was, frankly, shaky to begin with, though it was enough to convince the jury. But as it happens, there's a wealth of evidence, most of which the state knew and concealed at the time of trial, indicating that (1) Keith didn't do it, and (2) Rodney Melton did.
Here's a sample. Melton apparently was hired to do the killing.  Melton knew information only the killer could have known.  At least one survivor explicitly and insistently said that Keith wasn't the killer.  The state presented perjured testimony, asserting that a nurse who did not exist told police that one of the victims named the killer as Kevin.  (The actual nurse, one who did and does exist, says she was never told any name.)  And he had a substantial alibi.

OK, as I routinely say at this point, I don't know what happened that evening in February 1994.  What I know is that if it heard all that evidence, it's remarkably unlikely a jury would have found Keith guilty; and it's even less likely he would have been sentenced to die.

I'll repeat that last part, phrased differently, because it's particularly important to emphasize here.

I don't know whether Kevin Keith is factually innocent or not.  I'm not saying he is.  I am saying that a jury confronted with what we know now would probably not have convicted him and would almost certainly not have sentenced him to die.

This, however, is not a post about Kevin Keith.  Nor is it about Tyrone Noling (about whom I wrote on Saturday) who also may or may not be factually innocent and who, like Keith, would likely not have been convicted had his trial lawyers known what we know now.  Nor is it about the others in similar situations.  It's not a post about the innocent or about the guilty.

I want to write, instead, about who we decide to kill.  And about some of the underlying theory.

So I have to take you back and do a little history of the death penalty in America since 1966.  I picked 1966 because that's the year, as we like to say about so many things, that everything began to change.

In 1966, as it regularly does, the Gallup organization asked people their views of the death penalty.  That year, support was at 42%, the lowest it had been and the lowest that (so far) it has been. (Data available here.)

On June 2, 1967, Luis José Monge, was killed in the gas chamber in Colorado.  He was one of only two men executed that year, and he would be the last for nearly a decade.

For five years, it was unofficial.  Something was happening, and the federal courts were taking notice.  They stopped every execution.  In 1972, they changed the rules.  The case, known as Furman v. Georgia, was argued in the Supreme Court by Anthony Amsterdam.  Here's how the Death Penalty Information Center explains.

In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia's death penalty statute, which gave the jury complete sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore "cruel and unusual" and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid. 

There was, of course, great celebration among abolitionists.  It was misguided and short lived.  The Court had emphatically not said the death penalty itself was unconstitutional.  It said the nation's death penalty laws, as written, were unconstitutional.  As a friend said about 40 years ago of Ann Margaret's vibrato, you could drive a truck through that space.

Furman was decided in June.  By November, Gallup showed support for the death penalty had risen to 57%.  And climbing.  States which had been content with not executing anyone for years, rushed to enact new laws they hoped would satisfy Furman.   They took two forms.  If the death penalty was arbitrarily applied, some states figured, a mandatory death penalty would resolve that problem.  Other states lit on something that ended up called "guided discretion."  Juries or judges could still decide what to do, but their discretion was constrained by factors and standards and guidelines and whatnot (the details varying from state to state).

Back in 1901,  Mr. Dooley said,

No matther whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ illiction returns.

And the opinion polls.  In 1976, Gallup showed support for the death penalty at 66%.  Nearly two-thirds of the states had enacted new death penalty laws.  And the Supremes looked down and said those providing for guided discretion were good and those calling for mandatory death sentences were bad.  Because, the court didn't quite say but pretty clearly meant, the death penalty is only for the worst of the worst, and that has to be a case-by-case determination.

As it develops, deciding who is the worst of the worst involves (according to the Court) providing some mechanism by which the jury is to measure the thing that makes a killing and the killer more deserving of death against things that make the killing and/or the killer, what - less deserving of death.

In 1978, In Lockett v. Ohio, the Supreme Court said that Ohio's new death penalty law failed because it limited the things that could be weighed on the side of a life rather than a death sentence.  The Court said the jury had to be able to consider anything relevant to a life sentence, and Ohio's law didn't allow that.

Which takes us to 1981 and gets very close to the point of this history.

In 1981, Ohio enacted a new death penalty law, one designed specifically to solve the Lockett problem.  Roughly (very roughly) it works like this.

The worst form of the crime of homicide is, in Ohio, called Aggravated Murder.  If a person is charged by the grand jury with Aggravated Murder and also charged by the grand jury with a death specification (something that makes Aggravated Murder especially bad), that person is eligible for death.  And if the jury finds the person guilty of Aggravated Murder and also guilty of the death specification, the case goes to a second trial at which the State tries to prove that the death specification (not the killing, just the specification) outweighs whatever the person can show that makes life more appropriate than death.  The circumstances of the killing itself, are relevant to the determination only if they make death less appropriate than life.

If that sounds complicated, it is.  If it sounds confused, it is.  If it sounds at least a little goofy, it is.  If it sounds like a real effort to come up with a narrow death penalty, it probably was.

One of the chief sponsors of the law was state senator Paul Pfeifer, a Republican.  Indeed, he's known as the "father of Ohio's death penalty."  Pfeifer, still a Republican, is now Ohio Supreme Court Justice Paul Pfeifer.  And he's appalled.  

See, over the years, the legislature has expanded the definition of Aggravated Murder.  And it has expanded the number of death specifications.  and the Ohio Supreme Court (often over the dissent of Justice Pfeifer) has read the specifications broadly rather than narrowly.  And then it turns out that levels of independent review that Pfeifer built into the law don't actually do anything much.

And as it happens, juries are wildly erratic in making their decisions about who should live and who should die.  And geography matters.  And class matters.  And the attitudes of the local newspaper matter.  And race matters (a lot).  And dammit, this just isn't the law Pfeifer had in mind.

Those people, the worst of the worst who did the worst things, Pfeifer has no problem saying they should be executed.  He thought so in 1981 and he thinks so now.  But he's come to see that we're sending folks to death row who aren't they.  And we're killing some of them.  (And maybe he's beginning to notice that even under the best of circumstances you can't tell who they are, though I'm not sure he's getting that even now.)

So back in May, as Ohio was well into it's killing spree with a murder a month for god knows how many years into the future as we clear out death row by means of death, the Columbus Dispatch's Alan Johnson reported, he had this idea.  He proposed setting up a blue-ribbon commission to review every guy on death row.  Not to see whether to grant mercy (that's for the Governor and the Parole Board), but to see whether death is the appropriate punishment, to see whether the jury really got the death vote right, to see who is really the worst of the worst who did the worst thing.  Johnson wrote,

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free.

"The point is whether or not death is the appropriate penalty," he said.

The response from those in power was, shall we say, less than enthusiastic.

Oh my stars and garters! (As the same friend who made that long-ago comment about Ann Margaret's vibrato said about something altogether different the other day.)  A commission?  Heavens, no.  Why it would mean the end of the Republic.  We'd have to delay executions.  We'd have to see if we'd made a bad judgment along the way.

Time passes and things change.  In May, it was Justice Pfeifer, a lone voice it seemed crying out in the wilderness of Republican officialdom.  Suddenly, he's not alone.

Via Doug Berman, this latest article by Mike Wagner and Alan Johnson from the front page of Sunday's Dispatch.  Here's a lengthy chunk of that article.

Cases such as [Kevin} Keith's, coupled with Ohio's pace for a record number of executions this year, have prompted current and former high-level officials to call for a comprehensive review of all Death Row cases - and possibly a moratorium on executions. The officials include two former prison directors and three prominent Republicans: Ohio Supreme Court Justice Paul E. Pfeifer, former Attorney General Jim Petro and state Sen. David Goodman of New Albany.

Adding to the momentum are five death-sentence commutations by two governors since 2003, passage of a strong DNA law to avoid wrongful convictions, and exonerations of three inmates because of new DNA test results.

Pfeifer, who first urged a Death Row review in a Dispatch story in May, remains the strongest advocate for a review. His six colleagues on the court, plus Strickland and Attorney General Richard Cordray, have no interest in a study commission, much less a moratorium.

"This isn't about me or anything I might do," Pfeifer said, "although I might have to revisit that if the new governor says, 'I don't want any part of it.'"

Pfeifer was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional. Pfeifer said he is not suggesting that any of the 160 men and one woman on Death Row are innocent or should be set free, only "whether or not death is the appropriate penalty."

Petro supports the death penalty but favors forming an independent task force to examine Death Row cases and halting executions while that review is being conducted.

"We should show restraint, caution and diligence with these cases," Petro said. "DNA has opened a lot of people's eyes with what it can do. When you are talking about death, you can't afford to make even one mistake."

Two former state prison directors, Reginald A. Wilkinson and Terry Collins, who witnessed 34 of 39 executions since 1999, agree that the Death Row cases should be reviewed to see if they are the "worst of the worst," the standard set down when Ohio resumed capital punishment 11 years ago.

Wilkinson, director from 1991 to 2006, takes it a step further.

"I'm of the opinion that we should eliminate capital punishment," he said. "Having been involved with justice agencies around the world, it's been somewhat embarrassing, quite frankly, that nations just as so-called civilized as ours think we're barbaric because we still have capital punishment."

This is a powerful set of voices.  But they're still in something of a wilderness.  Governor Ted sees no point in further review.  General Cordray is sure there's never been less than perfection on his watch.  Pfeifer's the only one on the supreme court to think there's reason to check.

Really, why bother.

The witches raised apparitions who told Macbeth to "beware Macduff" but that he need fear no man "of woman born.  Besides, he was told

Macbeth shall never vanquish'd be until
Great Birnam wood to high Dunsinane hill
Shall come against him.

Made fearful by the first statement though comforted by the second and third, Macbeth figured there'd really be no harm, and the wiser, safer, course of action would be to kill Macduff.  No need, but why not?

I'll make assurance double sure.

Of course, things didn't work out quite as Macbeth planned.  The prophecies were, as prophecies tend to be, dangerously vague and misleading. 

In 1994, late in his career on the bench, Harry Blackmun, who voted against the Court's decision to shut down the death penalty in Furman and voted to reinstate it four years later, came to understand that it couldn't be done right.  You can't have a system that is both objective and subjective simultaneously.  He laid it out in Callins v. Colins, dissenting from the Court's refusal to hear the case.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Pfeifer's not in Harry Blackmun's camp.  At least not yet.  Neither is Petro.  They're not calling for an end.  They're saying that every case should be looked at with fresh eyes.  they're talking just about double checking.

You know, I say it over and over in this blog.

What's the harm?