If the death penalty is unconstitutionally wanton and freakish, then what about Lady Gaga?  A profound, if unanswered question that Stephen Colbert raised last night as he lamented the decline of capital punishment in the US, blaming “juries and prosecutors” and CSI-Miami.  He declared his belief that the death penalty is a deterrent, in that it deters him from hunting his interns for sport “in America.”

Colbert also took on Justice Scalia’s recent infamous dissent in the Troy Davis case, where Scalia stated flatly that there is no problem with execution someone who is “actually” innocent.  “Executing the innocent may be cruel, but as long as Scalia is on the bench, it will not be unusual.”  A (typically) weird interview with Barry Scheck of The Innocence Project followed.

As for Troy Davis, he is still waiting for the scheduling of the evidentiary hearing the Supreme Court granted him, over the objections of Scalia and his cohort Clarence Thomas.

Last year ended with the news of a record low number of death sentences, and with the decision by the American Law Institute, described today in the New York Times, to give up trying to fix our broken capital punishment system.  The Institute, a collection of thousands of judges, lawyers and law professors, is very influential, in that it creates model penal codes which often serve as the basis for the real-life laws under which we live.  

The Institute created the “modern” death penalty system that the US Supreme Court endorsed in 1976.  But a report detailing factors we are already all too familiar with – persistent racial bias, inadequate defense, wrongful convictions, and a politicized judiciary – caused the Institute to vote to abandon capital punishment, citing “… intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”  

This doesn’t mean that the death penalty in the US will suddenly cease to exist; the deliberate and thoughtful analysis of the American Law Institute will not have an immediate impact in states where killing prisoners is routine and done without much thought at all.

Executions will continue.  Three in fact, will occur on Thursday.  While the usual suspects, Texas and Ohio, plan to execute Kenneth Mosley and Vernon Smith (aka Abdullah Sharif Kaazim Mahdi), Louisiana also has an execution scheduled on that day - its first in almost 8 years.  Gerald Bordelon has “volunteered” to be executed.  The next day, January 8, South Carolina will execute Quincy Allen.  He, too, is “volunteering,” and has asked to be put to death by electrocution.  The state will oblige him.

UPDATE: The state of South Carolina will NOT oblige Quincy Allen’s volunteering to be electrocuted.  The South Carolina Supreme Court has stayed his execution.

Source: Texas Coalition to Abolish the Death Penalty

It’s always nice to hear good news about the decline of the death penalty, and even nicer when that news is coming out of Texas. According to a recent report, while Texas officials continue to carry out executions at a high rate, the number of Texas juries that opt for the death penalty has dropped remarkably in recent years. In 1999, Texas sentenced 48 prisoners to death, but over the last decade that number has plummeted; so far in 2009, only 9 death sentences have been meted out. The drop has come about partly because a life-without-parole option has reassured juries that convicts will never be released, partly because in a troubled economy the sky-high financial costs of the death penalty are particularly daunting, and mostly because of what Texas state Senator Eddie Lucio Jr.,  calls “a growing lack of belief that our system is fair.”

Well-publicized exonerations, some based on irrefutable DNA evidence, have woken many Texans up to the reality that the legal system is often quite flawed, and more and more jurors are unwilling to risk being complicit in the execution of an innocent person. Tarrant County’s lead criminal prosecutor, Alan Levy, has said that said groups like the Innocence Project have done an excellent job of raising the profile of innocent convicts, and have made sure that the topic of wrongful conviction (and potential wrongful execution) is not forgotten.

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UPDATE:  Kenneth Biros was executed by Ohio’s new, untested, one-drug method.  It took the execution team about 30 minutes to find a vein; once the drug was administered, death occurred in about 10 minutes.

December 7, in addition to being Pearl Harbor Day, is the day when, 27 years ago, Texas became the first state to kill a prisoner with lethal injection. Since then there have been over one thousand lethal injections in the US, all using the same basic three-drug protocol.  Tomorrow morning, barring intervention from a court, Ohio will change that.

Kenneth Biros is scheduled to be the first inmate put to death by a one-drug lethal injection protocol.  The drug is sodium thiopental, aka Sodium Pentothal (its Abbot Laboratories name), an anesthetic which, if taken in a massive dose, will cause death (though it will take longer than the three-drug method).  In smaller doses it’s also famous, or infamous, as a dubious “truth serum.”

Lawyers for Biros argue that this one drug approach, which was developed on the fly in the aftermath of the botched Romell Broom execution on September 30, has not been adequately examined or tested and that using it now amounts to human experimentation.

Amnesty International views all executions, but whatever method, as inherently cruel, but it is worth pointing out that Ohio’s problems with lethal injection – struggling or being unable to find usable veins – have not been addressed by this new protocol, which still calls for the drug to be injected intravenously.  There is a backup, Ohio has assured everyone, involving the injection of two different chemicals directly into a muscle:  who is going to do that, and what sort of training they have been given in the last month or two, is unclear.  Doctors in Ohio have consistently refused to participate in executions.

There is no need for Ohio to rush into this – indeed there is no need for Ohio to kill prisoners at all.  But at the very least, Governor Strickland should declare a moratorium on executions to allow time for a thorough review of these new methods of state killing.

A day before President Obama is to announce plans for escalating troop deployments in Afghanistan, the US Supreme Court issued an important ruling concerning returning veterans overwhelmed by the trauma of combat.

The Court on Monday sent the death penalty case of George Porter back to the state of Florida for re-sentencing, without bothering to hold a hearing.  The 15-page order featured a passionate (by Supreme Court standards) honoring of Porter’s Korean War service and a compassionate recognition of the debilitating effects of the subsequent trauma he suffered.  The Justices ruled that the Porter’s lawyer was constitutionally deficient for failing to provide the jury with information about his Porter’s military service and the severe mental health consequences that followed.
 
A reasonable jury, the Court concluded, would likely recommend a life sentence if confronted with such compelling testimony. 

“The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.”

The Court’s ruling could prove to be quite important; veterans are not unknown on America’s death rows.  Just this November, Virginia put to death two veterans of US military service – John Allen Muhammad, who served in the first Gulf War, and who had severe mental illness claims similar to Porter’s; and Larry Bill Elliott, a former military intelligence officer. 

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Bobby Woods has an IQ of around 70 and is scheduled to be executed by the state of Texas on December 3.  The crime for which he was sentenced to die was heinous (he was convicted of raping and murdering an 11-year-old girl), but executing persons with mental retardation has been forbidden by the US Supreme Court since 2002.  Those with diminished mental capacity are deemed less culpable for the crimes they commit, therefore execution, for them, is a “cruel and unusual punishment.”

Since 2002 the problem, in Texas as elsewhere, has been defining what mental retardation is – most states have settled on an IQ below 70 as the main quantifiable criterion, though IQ testing is not the most exact of sciences.   The problem, for prisoners like Woods, is that proving a sufficiently diminished mental capacity, as with most other facets of our capital punishment system, requires a good lawyer.

A good lawyer Bobby Woods did not have.  As the Texas Observer points out, in 10 years of representation both at trial and on appeals, Woods’ lawyer visited him exactly one time.  Unable to raise a mental retardation claim with the courts at this late stage, Woods’ new attorney, Maurie Levin, must rely on the good graces of the Texas Board of Pardons and Paroles, and Governor Rick Perry, to commute his sentence, or at least to grant a 60 day reprieve to allow Levin more time “to adequately present a full picture of his limitations.”

The Observer piece, with links to videos and excerpts from letters, does a pretty good job of presenting such a picture.

The death penalty is always inhumane, and the past few days in Texas have brought to light some of its most worrisome aspects.

On Wednesday, The Texas Board of Pardons and Paroles recommended that Robert Thompson’s death sentence for his role in a 1996 robbery and shooting be commuted to life imprisonment. The shooter, Sammy Butler, was convicted and received life in prison, which raises serious questions about the arbitrary nature of how the death penalty works in real life. Why wait until the last minute to discuss the disproportionality of sentencing the accomplice to death while the man who pulled the trigger is sentenced to life in prison?

Earlier this week a federal judge in Houston granted a last-minute stay to Gerald Eldridge, allowing 90 days for a review of his mental state and capacity. Executing the mentally ill is extremely problematic, and the time to deal with such a serious issue is not during a prisoner’s last meal. Such jarring, nerve-wracking changes at the last second are traumatic for everyone involved, including the victims’ families.

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Caught between a legal requirement to avoid cruelty, and its desire to kill prisoners, the state of Ohio is struggling to find an acceptable method of execution following the botched, and failed, attempt to put Romell Broom to death on September 15.  As reported in today’s New York Times, the method the state has chosen is injection into the vein of a single, lethal dose of anesthetic.  This seems peculiar, since it was failure to find a suitable vein that led to the botched executions of Joseph Clark and Christopher Newton, as well as the recent Broom fiasco.

In the new Ohio protocol, another alternative, intramuscular injection, is available as a backup.  This method has not been used before, but was given the thumbs up by Massachusetts anesthesiologist Dr. Mark Dershwitz, the one doctor in America who seems willing to help states kill prisoners.  A local Ohio doctor, Jonathan Groner, seems to disagree, suggesting that legal challenges are far from over.  “In the end this is still about killing people.”

It is indeed, and if this protocol proves acceptable to Ohio and federal courts, the lethal injection of Kenneth Biros and others could be back on schedule (the stay of Biros’ December 8 date is only temporary), and Ohio’s one-a-month assembly line of executions could be back in business.

UPDATE:  Virginia Governor Tim Kaine has denied John Muhammad’s request for clemency.

This evening Texas and Virginia, the two most prolific executing states in the USA, are both slated to carry out lethal injections.  Texas has scheduled an execution for Yosvanis Valle – a Cuban national – while Virginia is preparing to put to death John Allen Muhammad, known by most simply as the “DC sniper”.  The crimes for which John Muhammad is known inflicted serious trauma not just on the victims  and their families but on the entire Washington DC area.

But we at Amnesty International oppose the death penalty in all cases without exception.  Like torture, the deliberate killing of prisoners is a fundamental violation of human rights.  No human being, no matter how unsympathetic or how heinous the crimes for which he has been convicted, should ever be subjected to the kind of cruel, inhuman or degrading treatment or punishment that both torture and executions represent.  There are lines that we as a society should simply not cross, or lines that we should not cede to our governments the power to cross.  And there have to be better ways to respond to traumatic crimes than with violations of basic human rights.

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In a recent interview on NPR, former Texas Governor Mark White discussed his lack of faith in the ability of the legal system to reliably handle death penalty cases, and emphasized the seriousness of handing down an irreversible sentence to a person who may later be proven innocent. While he was Governor, he oversaw a significant number of executions, but White now believes that: ”What I see in retrospect is that our system is not as foolproof as I think it should be in order to carry out a punishment that’s irreversible.”

White also stated that he has never believed in the death penalty as a deterrent, because: “Obviously, with 400 people on death row, there’s at least 400 people up there that didn’t deter.”

As Amnesty International observed, Governor White’s evolution on this question is part of a national trend: “As advances in DNA and forensic science have revealed the extent to which our criminal justice system is prone to error, judges, jurors, the public, and even some politicians, have begun to question the wisdom of resorting to capital punishment.”

White’s statements (he’s a Democrat) also come at a particularly bad time for current Governor Rick Perry, who, in the middle of a re-election campaign, is now being scrutinized for his role in the execution of Cameron Todd Willingham, who appears to have been innocent and wrongly put to death.

In the past, you would only pay a political price if you didn’t support the death penalty strongly enough.  But in Texas, as everywhere else in the U.S., times have changed, and it would be quite something if the most prolific executing Governor in modern history wound up suffering politically because he supported the death penalty too much.