In Iran, in January of this year, a man being stoned to death for adultery managed to survive his ordeal by digging his way out of the pit in which he had been buried.  According to an Amnesty International report, citing Iran’s penal code, “if the condemned person manages to escape from the pit, they will not be stoned again if they had been sentenced after confession.” The man who escaped in January was not stoned again that day, though it is believed he was taken back into custody.   

Today, Ohio faces a similar dilemma.  Romell Broom survived the Buckeye state’s attempts to execute him by lethal injection, due to the failure of his executioners to find a useful vein in which to inject the poison.    Does this mean Mr. Broom will no longer face the needle, or will Ohio subject him to a second execution?  It appears that the latter is the case (Ohio Governor Ted Strickland merely granted Mr. Broom a week-long reprieve), although there may be arguments in court that being executed twice would constitute cruel and unusual punishment. 

Ohio has had these problems before: the execution of Christopher Newton (who “volunteered” to be executed by giving up his appeals) took 90 minutes, and the lethal injection of Joseph Clark took 40.  In both cases, the delay was the result of the inability of the execution team to find suitable veins.

Given that this horrible problem keeps re-occurring, it would be wise for Ohio Governor Ted Strickland to at least declare a moratorium and halt executions in his state.

The FBI’s annual crime report – Crime in the United States, 2008  – which was released Monday reveals that, like death sentences and executions, murder rates in the U.S. declined slightly in 2008.  This has been the trend for a number of years, as has been the fact that homicide rates vary from state to state, with the states of the Deep South generally having the highest murder rates. 

As usual, states without capital punishment generally had lower homicide rates than the states that execute.  In fact, all but one of the 14 states with no death penalty in 2008 had murder rates below the national rate of 5.4 per 100,000.  The lone exception, Michigan, had a homicide rate of 5.4, equal to the national rate. 

Homicide rates in the U.S. are of course still way too high.  That 1 in every 20,000 Americans was murdered last year is nothing to be proud of, but by now it should be clear to all that, as the consensus of criminologists agree, the death penalty has nothing to do with solving this problem.

Bob Barr thinks so.  In his Washington Times op-ed, the former federal prosecutor, Georgia Congressman and Libertarian Presidential candidate, labels Scalia the “high court curmudgeon” for his dissent from the Supreme Court’s order giving Troy Davis to have an evidentiary hearing on his substantial evidence of innocence.

Scalia believes, simply, that the Constitution doesn’t protect the innocent from being executed.  Barr believes that it does.

“The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.”

Bob Barr was instrumental in the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) back in 1996, and has clearly been perturbed by the way that law has been interpreted to prevent what justice plainly requires in this case:

“… a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify.” And at which “… the state of Georgia will have full opportunity to rebut that testimony.”

The “pinched and erroneous” interpretations of AEDPA by cantankerous old judges like Scalia ignore the fundamental basis for law and justice, which is to punish the guilty and protect the innocent.

On Monday, Amnesty International release a report on the death penalty in Iraq, pointing out that at least 1,000 people are now on death row in Iraq, and 150 of them have exhausted all appeals and could be hanged at any time.  The report tells a familiar tale, of how combining a hugely flawed criminal justice system with capital punishment leads for major injustices.  One of the focuses of the Amnesty report, and a focus of the CNN report above, is the case of Samar Sa’ad ‘Abdullah, who may face execution for the killing of three family members despite having been severely beaten into confessing to the crime.

When Saddam Hussein was in power, his government carried out executions “on a very large scale”, both judicially and extra-judicially.  Ironically, with the 2003 U.S. invasion of Iraq and the overthrow of Saddam Hussein, Interim Coalition Provisional Authority (CPA) head Paul Bremer (remember him?) imposed a moratorium on executions, and it was only after the new Iraqi government took power that executions restarted.  This included, in December 2006, the execution of Saddam Hussein himself. 

Iraq has already executed many people this year (executions sometimes take place in secret, so the exact number is not known).  It is known that 12 people were executed on May 3, and 19 more were executed on June 10.  Although Iraqi President Jalal Talabani is personally opposed to the death penalty, he delegates decisions on Presidential pardons to his deputies who have no such qualms. With its rapidly expanding death row and the large numbers now out of legal options, the number of hangings could soon increase exponentially.

In 2004, Cameron Todd Willingham was executed in Texas for setting a fire that killed his three children.  He maintained his innocence to the end, and those who looked into his case, including the Chicago Tribune, have concluded that he was in fact wrongfully executed.  His was one of the 200+ executions under Rick Perry, a governor who has remained willfully oblivious to the huge flaws in his state’s death penalty.  

Yet recently, to its credit, the Texas Forensic Science Commission reopened the case.  A nationally known fire expert, Craig Beyler, was hired to assess how Texas authorities investigated the fire.  According to the Tribune, Beyler’s report is not kind to the Texas investigators, and he determined that there was no scientific reason to believe that the fire was arson at all.  If indeed that is the case, Cameron Willingham was executed for a crime that never occurred – an exceptional cruelty for a man who had already lost his three children.

Beyler ripped the fire marshal who investigated the case, saying, according to the Tribune, that the fire marshal had “limited understanding” of fire science, “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” and that his findings “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

The Texas Forensic Science Commission will solicit a response from the fire marshal and then publish its final report.  If it reaches the same conclusion that this nationally respected fire expert has, the state of Texas may finally officially acknowledge that it has executed an innocent man.

Today, North Carolina Governor Beverly Perdue signed the Racial Justice Act into law, making North Carolina only the second state in the country to allow death row prisoners to meaningfully challenge their death sentences if racial bias is evident.  (Kentucky is the only other state that has adopted similar provisions.)

As discussed in my previous post, race (particularly race of the victim) has been a major factor in who does and does not get death sentences in North Carolina, and 35 inmates on North Carolina’s death row were put there by all-white juries. 

It is good to see a southern state like North Carolina take such a leadership role in directly confronting its legacy of racism and going the extra mile to ensure that its justice system (or at least its capital punishment system) is no longer infected with racial bias. The 33 other death penalty states, both northern and southern, should follow North Carolina and Kentucky’s lead; racial bias in the death penalty is a national problem.

On July 15th the North Carolina House voted 61-54 to approve the Racial Justice Act, which, if signed into law, would allow death row prisoners in the state to appeal their sentences if racial prejudice played a role in their sentencing.   Last night, the North Carolina Senate approved the legislation, which now goes to Governor Bev Perdue for her signature.

The Racial Justice Act could be a very significant step towards ensuring that race does not affect the fate of capital defendants in North Carolina—a state with a history of racial prejudice, where race has been a factor in death penalty cases in the past.  A 2001 study conducted by Dr. Isaac Unah and Prof. Jack Boger from the University of North Carolina showed that the probability of a defendant receiving the death penalty in North Carolina is 3.5 time higher if the murder victim was white.   In some parts of the state the findings were even more disturbing.  For instance, in Durham County, prosecutors were 5 times less likely to seek the death penalty if both the defendant and the murder victim were black than if the defendant was black but the murder victim was white.   

A review by the Winston Salem Journal found similar racial discrepancies in the application of North Carolina’s death penalty.  The Journal discovered that, although the majority of murder victims in North Carolina are black, only 18 percent of the state executions carried out between 1984 and the present were of prisoners whose victims were African-American.  In contrast, four fifths of the executions were of prisoners whose victims were white.  

Another way race has played a role in death penalty cases in North Carolina (as well as across the country) has been though jury selection.  Although African-Americans constitute more than one fifth of North Carolina’s total population, between 1977 and the present 35 defendants in the state have received death sentences from all-white juries.   

In light of these discrepancies and the unequal application of capital punishment in North Carolina, passage of the Racial Justice Act is a milestone achievement.   The legislation has gained the support of clergy and civil rights leaders who have described it as “a clear signal that we are serious about removing any vestiges of racial discrimination in the administration of the death penalty.”  In a joint statement published on the website of the North Carolina NAACP Chapter, the leaders went on to say that the Racial Justice Act has the potential to “make North Carolina a leader in the southeast on a matter of great importance to anyone who believes justice should be color blind.”

All that is needed now is the Governor’s signature.

The Maryland Department of Public Safety and Correctional Services recently proposed new regulations for lethal injection procedures.  Executions in Maryland have been at a halt since 2005, when a court of appeals ruling found that the execution protocols were illegally adopted.  If the regulations are adopted, they will move the state closer to resuming use of the death penalty.   These regulations have now been published in the Maryland Register, and they are open for comment for the next 30 days.

According to the regulations:

“Comments may be sent to Randy Watson, Assistant Commissioner, Division of Correction, 6776 Reisterstown Road, Baltimore, MD 21215-2342, or call 410-585-3300. Comments will be accepted through August 31, 2009. A public hearing has not been scheduled.”

These new regulations do not appear to address any of the major problems inherent in the use of lethal injection. Among many other things, the regulations propose that:

• Executions would continue using a drug – pancuronium bromide – that is not even permitted for use in euthanizing animals. Medical officials have consistently warned that the combination of drugs proposed here may cause the prisoner a very painful death, and indeed several such botched executions using these drugs have occurred.  
• A certified paramedic must be on duty in some capacity during the execution, either as a part of the execution or standing right outside of the area where the execution takes place.  A licensed physician would also have to be present.  These proposals could result in violations of AMA ethical guidelines. 

There are currently five men on death row in Maryland. While these regulations would not mean that executions would immediately start happening, it does mean that de facto moratorium on executions would end.

Resuming executions would be a huge step backwards for the state of Maryland. Despite a long fight in recent years, the death penalty still has not been outlawed in the state, though it has been restricted. But the current moratorium on executions, coupled with the historically infrequent use of the practice in the state, gives hope that Maryland is not far from joining the other fifteen states (plus D.C.) that have outlawed capital punishment.

Despite the Supreme Court’s summer hiatus, the Troy Davis case continues to make news.  Tuesday night on CNN’s Anderson Cooper 360, reporter Gary Tuchman covered the case.  His report includes interviews with some of the witnesses who have recanted their trial testimony, and well as one of the jurors who now says she would find Troy Davis not guilty.   Tuchman also interviews Officer Mark MacPhail’s widow, but was unsuccessful in scoring an interview with the alternative suspect, Sylvester “Red” Coles.

The US Supreme Court reconvenes on September 29, and may make a decision on his case at that time, but meanwhile the new District Attorney in Chatham County, Georgia, can still reopen the investigation into the case.

Yesterday the Senate passed four amendments to the Matthew Shepard Hate Crimes Prevention Act, including a provision that would allow the death penalty to apply to hate crimes.  This amendment, added by Senator Jeff Sessions, R, AL (a vocal opponent of the Act itself), adds nothing to the justice the bill seeks for victims of gender and sexuality-based hate crimes. 

The goal of the Matthew Shepard Act (which is itself attached to the 2010 Defense Department authorization bill) is to allow the investigation and prosecution of some hate crimes based on the victim’s actual or perceived sexual orientation, gender, gender identification, or disability. The person for whom it is named was a 21-year old college student from Colorado who was tortured and murdered in Laramie, Wyoming in 1998 by two other young men. As an openly gay young man, Matthew Shepard was the victim of much discrimination and violence. During the trial for his murder, witnesses stated that he was victimized that night by Aaron McKinney and Russell Henderson because of his sexuality.

After McKinney’s conviction the jury began deliberating the death penalty, but Matthew’s parents were able to broker a last-minute deal so that McKinney was sentenced to life in prison instead. Matthew Shepard’s dad was quoted as saying to him:

“I would like nothing better than to see you die, Mr. McKinney. However, this is the time to begin the healing process. To show mercy to someone who refused to show any mercy. Mr. McKinney, I am going to grant you life, as hard as it is for me to do so, because of Matthew.”

This profoundly difficult and heart-wrenching decision to show mercy after such a terrible crime may mean nothing to Senator Sessions, but his amendment can still be removed when a House-Senate conference committee meets to reconcile the differences between the two bills, or when the entire House and Senate vote on the bill after that.