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American Bar Association Calls for Unanimous Juries and Greater Transparency in Execution Process

On February 9, the House of Delegates of the American Bar Association unanimously passed two resolutions calling for unanimous juries in capital sentencing and greater transparency in lethal injection procedures. Resolution 108A stated: "Before a court can impose a sentence of death, a jury must unanimously recommend or vote to impose that sentence," and, "The jury in such cases must also unanimously agree on the existence of any fact that is a prerequisite for eligibility for the death penalty and on the specific aggravating factors that have each been proven beyond a reasonable doubt." Currently, some states, including Florida, Alabama, and Delaware, allow a jury to recommend a death sentence without unanimity. Resolution 108B called for all death penalty jurisdictions "to promulgate execution protocols in an open and transparent manner and require public review and comment prior to final adoption of any execution protocol, and require disclosure to the public by all relevant agencies of all relevant information regarding execution procedures." As lethal injection drug restrictions have caused states to seek out new sources of drugs, many states have adopted secrecy policies surrounding their lethal injection process. 

 

PUBLIC OPINION: American Ambivalence on the Death Penalty

A new Rasmussen poll found that 57% of American adults support the death penalty, down from 63% in the organization's polls dating from 2009. The poll found 26% of respondents opposed the death penalty, with 17% undecided. Respondents were also asked whether they favored the death penalty for James Holmes if he is convicted of the mass shooting at a movie theater in Aurora, Colorado. Just 55% said they believed Holmes should be sentenced to death, compared to 66% who held that view immediately after the shooting in 2012. Twenty percent were undecided. Rasmussen found that Americans were less supportive of executing a defendant who is mentally ill, an issue in Holmes's case. Respondents also had concerns about wrongful convictions, and were split on whether the death penalty deterred crime.

 

BOOKS: "Examining Wrongful Convictions"

A new book, Examining Wrongful Convictions: Stepping Back, Moving Forward, explores the causes and related issues behind the many wrongful convictions in the U.S. Compiled and edited by four criminal justice professors from the State University of New York, the text draws from U.S. and international sources. Prof. Dan Simon of the University of Southern California said, ''This book offers the most comprehensive and insightful treatment of wrongful convictions to date," noting that it delves into topics such as the wars on drugs and crime, the culture of punitiveness, and racial animus, as they relate to mistakes in the justice system. The editors note that, "[The] essential premise of this book is that much of value can be learned by 'stepping back' from the traditional focus on the direct or immediate causes and consequences of wrongful convictions," with the hope of moving forward by "probing for the root causes of miscarriages of justice."

 

NEW VOICES: Conservative Leaders Seek Reprieve for Severely Mentally Ill Inmate

A group of conservative leaders has joined in an effort to save the life of Scott Panetti, a Texas death row inmate with a history of severe mental illness. Members include several law enforcement officials and notable conservatives, such as Mark Earley--former Attorney General of Virginia, Harold Stratten--former Attorney General of New Mexico, David Keene--the Washington Times opinion editor, James Miller III--director of the Office of Management and Budget under President Ronald Reagan; and Richard Viguerie--chairman of ConservativeHQ.com. The group filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit, stating, "Even for those who favor a measured and just system of capital punishment, the execution of Panetti would be a moral scandal that would only undermine confidence in such a system." Panetti's attorneys say that he is mentally incompetent and therefore ineligible for execution. Panetti, who represented himself at trial wearing a cowboy suit and attempted to subpoena John F. Kennedy and the pope, has not had his mental competency evaluated in seven years, and his attorneys say his condition has worsened. The conservatives' brief concluded, "Panetti should be given the time and resources he seeks, and the case should be remanded so that he can prepare a petition for writ of habeas corpus raising a claim that he is incompetent to be executed."

 

BOOKS: Imprisoned by the Past: Warren McCleskey and the American Death Penalty

A new book by Prof. Jeffrey Kirchmeier of the City University of New York examines the recent history of race and the death penalty in the U.S. The book uses the story of a Georgia death row inmate named Warren McCleskey, whose challenge to the state's death penalty went all the way to the Supreme Court. In 1987 the Court held (5-4) that his statistical evidence showing that Georgia's system of capital punishment was applied in a racially disproportionate way was insufficient to overturn his death sentence. McCleskey was eventually executed. The book connects this individual case to the broader issue of racial bias in the American death penalty. Bryan Stevenson, Executive Director of the Equal Justice Initiative, said of the book,"No legal decision in the last half of the 20th century characterized America's continuing failure to confront its history of racial inequality more than the McCleskey decision. Jeff Kirchmeier's welcomed and insightful book brings much needed context and perspective to this critically important issue. Compelling and thoughtful, this book is a must read for those trying to understand America's death penalty and its sordid relationship to our failure to overcome three centuries of racial injustice."

 

COSTS: Pre-Trial Expenses Exceed $5 Million in Aurora Death Penatly Case

“Counties"(Click to enlarge)Trial preparations in the death penalty prosecution of James Holmes in Colorado have already cost the state about $5.5 million, and the trial and likely appeals will add significantly more. Holmes is accused of the mass shooting in a movie theater in Aurora. Most of the costs - $4.5 million - have come from the salaries of personnel working on the case, including the prosecutors, defense attorneys, the judge, investigators, and victims' advocates. Additional court security for hearings in the case has cost $463,000. Experts hired by the prosecution have been paid $220,000, and the defense team has likely spent a similar amount. Holmes has pleaded not guilty by reason of insanity. He offered to waive his right to a trial in exchange for receiving a sentence of life without parole. Colorado Governor John Hickenlooper called off a recently scheduled execution, describing the death penalty system as flawed and inequitable, essentially putting all executions on hold. (Image by Yahoo News, click image to enlarge.)

 

January's Executions Underscore Core Death Penalty Problems

Even as executions have declined in the U.S., those being carried out often illustrate serious problems that have plagued the death penalty for many years. Of the six executions January, two (in Florida and Oklahoma) involved a lethal injection protocol that is now under review by the U.S. Supreme Court. Georgia executed Andrew Brannan, a decorated Vietnam War veteran with Post-Traumatic Stress Disorder, and Warren Hill, an inmate who was found intellectually disabled by state doctors, but who failed to meet the state's highly unusual standard of proving his disability "beyond a reasonable doubt." Texas executed Robert Ladd, an inmate with an IQ of 67. Texas courts have devised their own largely unscientific criteria for determining intellectual disabilty. That leaves Arnold Prieto, also executed in Texas. He was offered a plea bargain and probably would have been spared if he had testified against his co-defendants. Of those involved in the brutal crime, only Prieto received the death penalty.

 

LAW REVIEWS: Disparities in Determinations of Intellectual Disability

A recent law review article reported wide variations among states in exempting defendants with intellectual disability from the death penalty. Professor John Blume (l.) of Cornell Law School, along with three co-authors, analyzed claims filed under the Supreme Court's decision in Atkins v. Virginia (2002) against executing defendants with intellectual disability (formerly, "mental retardation"). Overall, from 2002 through 2013, only about 7.7% (371) of death row inmates or capital defendants have raised claims of intellectual disability. The total "success" rate for such claims was 55%. In North Carolina, the success rate was 82%, and in Mississippi 57%. However, in Georgia (where Warren Hill was recently executed), the success rate for those claiming this disability was only 11%, and in Florida, the success rate was zero. The authors found that states that significantly deviated from accepted clinical methods for determining intellectual disability, such as Florida, Alabama, Georgia, and Texas, had the lowest success rates. To preserve equal protection under the law, the authors recommended the Supreme Court strike down aberrant practices in isolated states, just as it struck down Florida's strict IQ cutoff.

 

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