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Wednesday, October 15, 2014

Oklahoma's botched execution amounted to "medical experimentation" and torture, says inmate's family

Clayton Lockett's execution by lethal injection for the 1999 murder of 19-year-old Stephanie Neiman in rural Oklahoma did not go well. After being declared unconscious, Lockett grimaced in pain and struggled against his restraints. Eventually, the state drew the blinds on the execution chamber and the wardon called it off. But Lockett died of a heart attack roughly 45 minutes later. 

Lockett's family has filed complaint against various state officiales as well as the doctor who allegedly performed "human medical experimentation in torturing Clayton Lockett to death, in vioalation of the Eighth Amendment." As The Guardian's Ed Pilkington reports: 

The position of doctors is particularly sensitive as physicians take the Hippocratic Oath to show “utmost respect for human life”. Where doctors have been present in the death chamber, their role has in most cases been tightly limited to assessing whether the prisoner is unconscious and then officially pronouncing death.

 

However, in the case of Clayton Lockett, the state has admitted that a physician was present who actively took part in killing the prisoner. The report of the internal investigation into the Lockett execution reveals that the physician stepped in to finish the job after the paramedic who had initiated the execution failed to place the IV into Lockett’s veins.

 

[...]

 

The investigation report indicated that there had been a shortage of appropriate needles that day, and that the physician and paramedic had failed to place the IV into the prisoner’s vein, leading to the injection of a mass of lethal drugs into his muscle.

This case is noteworthy because the complaint indentified the doctor who placed the IV in Lockett by his name. States usually try to maintain in secrecy the identities of the parties involved. But, Lockett's family claims a First Amendment right to this information. 

Relatedly, Oklahoma announced last week the delay of three executions until next year because of the dearth of needed drugs. It also needs more time to prepare staff for the state's new lethal injection protocols -- and the "larger, remodelled death chamber"-- put into place after Lockett's execution. 

October 15, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Monday, October 13, 2014

Nearly half of Americans "confident" police use unnecessary force

Forty-nine percent, actually. And when police officers are found guilty of misconduct, only half of Americans believe they suffer meaningful consequences. 

That's according to the most recent Reason-Rupe poll, which Reason Foundation director Emily Ekins highlights here.  The poll also finds nearly three-quarters of Americans oppose racial profiling by police.

A closer look at the numbers reveals some rather predictable results -- whites view police conduct differently than blacks and Hispanics, a result unexplained by disparities in class. As Ekins observes:

There are significant differences in perception across race and ethnicity, as well as income and age. Younger, lower-income, and nonwhite Americans are considerably more likely than older, high-income, and white Americans to perceive injustice in the police force.

 

African-American and Hispanic Americans are more likely than Caucasians to believe police abuse their authority and use force excessively...Only 34 percent of Caucasians believe the police use lethal force unnecessarily, compared to 82 percent of African-Americans and 72 percent of Hispanics.

So, is the criminal justice system discriminatory?

Forty-five percent of Americans believe the criminal justice system treats whites, African-Americans and Hispanics equally, while 44 percent think the criminal system treats whites more fairly than it treats blacks and Hispanics.

Residents in urban areas are more likely to believe that police too often resort to unjustifiable use-of-force than those in rural areas. Nevertheless, nearly three quarters of all Americans still view police favorably.

Nearly three-quarters also believe nonviolent drug offenders should be allowed to vote when their sentences end, and 80 percent believe that mandatory minimum sentences for such offenders need to go.

 

October 13, 2014 in Excessive Force, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Friday, October 10, 2014

"The Nation's Shame: The Injustice of Mandatory Minimums"

Rolling Stone has this excellent article by Andrea Jones on the injustice resulting from mandatory minimum sentences for nonviolent offenders.

October 10, 2014 in Theories of Punishment | Permalink | Comments (0)

Thursday, October 9, 2014

"We basically took a shotgun to a problem that needed a .22"

...former President Bill Clinton said yesterday during a speech celebrating (unsarcastically) the 20-year anniversary of his administration's COPS program. Clinton explained that the common approach to criminal justice reform at the time was mistaken. “We took a shotgun to it and just sent everybody to jail for too long,” he said. Clinton now figures that criminal justice reforms will play prominently in the 2016 presidential election. 

October 9, 2014 in Theories of Punishment | Permalink | Comments (0)

Wednesday, October 8, 2014

Inmates's families paying gangs, guards to protect family members housed in one Mississippi prison

Monday, October 6, 2014

"An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?"

The title of this post comes from this article by Professor John Donohue III, the abstract of which states:

This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death. 

There is also strong and statistically significant evidence that minority defendants who kill whites are more likely to end up with capital sentences than comparable cases with white defendants. Regression estimates of the effect of both race and geography on death sentencing reveal the disparities can be glaring. Considering the most common type of death-eligible murder - a multiple victim homicide - a white on white murder of average egregiousness outside Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood. In other words, the minority defendant in Waterbury would be 160 times more likely to get a sustained death sentence than the comparable white defendant in the rest of the state.

Among the nine Connecticut defendants to receive sustained death sentences over the study period, only Michael Ross comports with the dictates that “within the category of capital crimes, the death penalty must be reserved for ‘the worst of the worst.’” For the eight defendants on death row (after the 2005 execution of Ross), the median number of equally or more egregious death-eligible cases that did not receive death sentences is between 35 and 46 (depending on the egregiousness measure). In light of the prospective abolition of the Connecticut death penalty in April 2012, which eliminated the deterrence rationale for the death penalty, Atkins v. Virginia teaches that unless the Connecticut death penalty regime “measurably contributes to [the goal of retribution], it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Apart from Ross, the evidence suggests that the eight others residing on death row were not measurably more culpable than the many who were not capitally sentenced.

Moreover, Connecticut imposed sustained death sentences at a rate of 4.4 percent (9 of 205). This rate of death sentencing is among the lowest in the nation and more than two-thirds lower than the 15 percent pre-Furman Georgia rate that was deemed constitutionally problematic in that “freakishly rare” sentences of death are likely to be arbitrary.

October 6, 2014 in Theories of Punishment | Permalink | Comments (0)

Sunday, October 5, 2014

DOJ opens criminal investigation into inmate's death from thirst after spending 35 days in solitary confinement

Saturday, October 4, 2014

"Inmate death in private transport van in Miami-Dade raises questions"

The Miami Herald has this excellent article by David Ovalle about lingering questions in the death of an inmate suffering from a variety of mental health and medical conditions. Ovalle writes: 

[Karen] Isaacs earlier this month was found slumped over dead inside the van — operated by Tennessee-based Prisoner Transportation Services of America through a contract with the Charlotte County Sheriff’s Office — during a stop at a West Miami-Dade Taco Bell restaurant.

 

Her case offers a window into the little-publicized world of private inmate-transport companies. And it has now spurred a law enforcement investigation into whether the transport officers provided her with proper care and attention during the grueling two-day road trip.

 

According to sources with knowledge of the investigation, Isaacs is believed to have acted strangely throughout the trip — apparently suffering hallucinations — while drinking little water and refusing a meal during a stop in Orlando.

 

And when the two transport officers finally saw that she was unresponsive in the Taco Bell parking lot, they first called their superiors in Tennessee. Only after unsuccessfully trying to revive her did the officers dial 911, sources said.

 

The cause of death remains unknown. An autopsy of Isaacs has so far proved inconclusive while the Miami-Dade Medical Examiner’s Office awaits the results of more tests.

October 4, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Wednesday, October 1, 2014

"Foreword: The Death Penalty in Decline: From Colonial America to the Present"

The title of this post comes from this recent article by Professor John Bessler, the abstract of which states:

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

October 1, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Texas's prisoner barbecue just one of many routine Eighth Amendment violations taking place behind prison walls

Yesterday I noted several prisoners in Texas allege that extreme temperatures inside the state's prisons violate their Eighth Amendment prohibition on cruel and unusual punishment. Because of their confinement, the prisoners can't readily alleviate the symptoms of long term exposure to the heat without help -- they have limited access to water, few fans, and usually can't open the windows in their cells.  The temperatures are especially threatening to the aging prison population, and inmates taking certain medications are also vulnerable. Several of the state's prisoners have died, and now a hearing by an arm of the Organization of American States is scheduled to review these prisons' conditions. 

In an op-ed in today's Los Angeles Times, renowned attorney Martin Garbus argues that the Eighth Amendment is routinely violated in prisons throughout the country. That is, Texas is not alone. Garbus writes:

As a litigator and constitutional lawyer, I have heard appalling stories from the nation's prisons and jails. One prisoner described to me how he was handcuffed to the bottom of his bunk in his underwear day after day for months. Another described how his cell was located directly beneath broken toilet pipes, which meant the cell smelled horribly of urine and excrement. I've heard how cells are unbearably hot or cold and how four prisoners are confined to spaces intended for two, with only one set of bunk beds. I've heard about showers that produce only scalding or icy water and about how, when cell toilets overflow, staff are in no hurry to fix them or to clean up.

 

The health risks in prisons are also unacceptable. MRSA, a bacterial infection whose strains are often resistant to antibiotics, now runs through maximum security prisons. I contracted it myself after visiting such a prison in June and was hospitalized for three days. Sexual assaults and sexual activity are well known to occur in prisons, but prisoners rarely have access to protection, such as condoms, that can help prevent sexually transmitted diseases.

 

And then there is solitary confinement. It is hard to tell exactly how many prisoners are in solitary each year in the United States. Today, 44 states allow it, but many states do not report how many inmates are held in solitary. A 2005 report from the Vera Institute of Justice estimated the number at 81,622.

October 1, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Thursday, September 25, 2014

"Making a Home for the Homeless in Hate Crime Legislation"

The title of this post comes from this intriguing paper by Professor Mohamed al-Hakim, the abstract of which states:

Several jurisdictions in the United States (e.g., Florida and Washington) have recently incorporated the status of “homeless” under the protection of hate crime legislation. This was largely promoted by new data and reports by the National Coalition for the Homeless urging added protection for the homeless. The issue of whether the homeless belong under hate crime provisions raises the following question: What criteria must a group meet to be eligible for its inclusion? What similarities do the homeless have with other protected groups? Finally, what implications does the recognition of economic status have on other economic groups, particularity the top wealthy 1%? In this article, I explore some of the issues raised by including the homeless as a protected group. I survey several rationales offered for the selection of protected characteristics. I argue that the rationales currently offered suffer from descriptive inadequacy by either being under- or over-inclusive. I turn instead to the political conception of “disadvantage” for an identity marker that better explains the link between the various protected groups and identities under hate crime legislation. Moreover, the use of disadvantage allows for the inclusion of the homeless without the need for incorporating other socio-economic identities.

September 25, 2014 in First Amendment, Theories of Punishment | Permalink | Comments (1)

Monday, September 15, 2014

Federal judge says judicial role requires upholding death penalty of innocent when procedurally fair

At his blog Hercules and the Umpire, Judge Richard Kopf has this thoughtful discussion of the death penalty.

September 15, 2014 in Theories of Punishment | Permalink | Comments (2)

Monday, September 8, 2014

“They were holding them under water until the point of death, with a doctor present to make sure they did not go too far. This was real torture.”

An anonymous source tells The Telegraph that the CIA tortured top al-Qaeda operatives captured after 9/11, including Khalid Sheikh Mohammed. This comes as we wait for a declassified version of the Torture Report, which apparently will reveal "brutality" that will "deeply shock" everybody. 

September 8, 2014 in Theories of Punishment | Permalink | Comments (2)

Friday, September 5, 2014

NYTimes editorial board continues its call to end death penalty

The New York Times editorial board has become an increasingly staunch critic of the death penalty. Earlier this year, it called the death penalty a "despicable practice" that is both "racist" and "barbaric." The board again called for an end to the "irretrievably flawed" and "immoral" practice earlier this week after DNA evidence compelled a state judge to overturn the conviction of two North Carolina men for the 1983 rape and murder of a young girl. It argued:

Cases of capital prosecutions based on flimsy evidence or marred by prosecutorial misconduct, not to mention racial bias, are distressingly common... 

 

How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.

The Times observed that the two North Carolinians were treated particularly poorly. "The arrests, confessions, trial, and convictions" of the two men were all highly questionable. Both men were just teenagers at the time of their arrests, but they nevertheless were questioned for hours without their parents or lawyers present. They also were compelled to sign confessions written by the police. The prosecution failed to inform the defense of potentially exculpatory evidence, and it declined to seriously consider a third suspect - even when police requested fingerprint analysis of a print found at the crime scene as a possible match to that suspect.

Then there's this: "The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned."

September 5, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)

Tuesday, July 29, 2014

Another botched execution adds to death penalty debate

On July 23, Arizona executed Joseph Wood by lethal injection. Although typically lasting between 10 and 20 minutes, Wood didn't die for nearly two hours. Today, The Atlantic's Matt Ford recounts Wood's execution as well as several others that have been botched this year, and offers the following:

Whatever we know about these executions, the known unknowns are greater. Because the states will not share them, we don't know the dosages of the drugs administered. We don't know the drugs' manufacturers or their quality-control procedures. We mostly don't know the credentials of those administering the drugs. More importantly, the defendants don't know any of this, either. Without this information, those sentenced to execution cannot challenge the execution procedures in court nor check for possible medical complications. State execution-secrecy laws, routinely upheld by lower courts but untested before the Supreme Court, prevent this basic level of prophylactic Eighth Amendment protection. If death by torture is not cruel, defendants contend, what is?

 

Defense attorneys have repeatedly begged the courts to compel corrections officials to at least reveal the source of the drugs that would end their clients' lives. They have repeatedly been refused. This time, Wood and his lawyers tried a First Amendment challenge to execution-secrecy laws, arguing that the public has a right to know how their government puts their fellow citizens to death. This would also give the inmates the facts needed to pursue Eighth Amendment challenges.

 

But so far, lower courts have deferred to the states' claimed need for secrecy. "The information already released by the state enables informed debate about the lawfulness and propriety of Arizona’s two-drug cocktail," replied federal Judge Jay Bybee of the Ninth Circuit. Wood appealed that decision to the Supreme Court; last night, the justices denied his petition without further comment or dissent. Less than 24 hours later, Wood died choking.

 

There are two executions scheduled for August 6. Missouri will put Michael Worthington to death and Texas will put Manuel Vasquez to death, both by lethal injection. The Supreme Court will likely get another chance to consider the procedures very soon. 

CRL&P related posts:

July 29, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Monday, July 21, 2014

John Oliver's delightful exposition of dispiriting criminal justice system

Thursday, July 17, 2014

Talk of fed judge's decision declaring CA death penalty unconstitutional

Saturday, May 17, 2014

Nothing like the smell of gunpowder in the morning

The controversial executions in Ohio and Oklahoma give you pause? You're questioning the justness of lethal injection? There must be a better way to kill convicted murders? No problem, says one state legislator in Utah. As the AP reports, the remedy to present injustices might come from a method of the past: 


4-posada-firing-squad-grangerState representative Paul Ray, a Republican from the northern city of Clearfield, plans to introduce his proposal during Utah's next legislative session in January. Lawmakers in Wyoming and Missouri floated similar ideas this year, but both efforts stalled. Ray, however, may succeed.

 

Utah already has a tradition of execution by firing squad, with five police officers using .30-caliber Winchester rifles to execute Ronnie Lee Gardner in 2010, the last execution by rifle to be held in the state.

 

Ray argues the controversial method may seem more palatable now, especially as states struggle with lawsuits and drug shortages that have complicated lethal injections.

 

"It sounds like the wild west, but it's probably the most humane way to kill somebody," Ray said.

 

Utah eliminated execution by firing squad in 2004, citing the excessive media attention it gave inmates. But those sentenced to death before that date still had the option of choosing it, which is how Gardner ended up standing in front of five armed Utah police officers. Gardner was sentenced to death for fatally shooting a Salt Lake City attorney in 1985 while trying to escape from a courthouse.

 

He was third person to die by firing squad after the US supreme court reinstated the death penalty in 1976. Other death-row inmates have opted to die by gunfire instead of lethal injection in Utah, but they are all several years away from exhausting the appeals of their death sentences, Assistant Utah Attorney General Thomas Brunker said. Ray's proposal would give all inmates the option.

CRL&P related posts:

May 17, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)

Tuesday, May 13, 2014

Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'

Today, the Fifth Circuit stayed Texas's scheduled execution of Robert James Campbell for the 1992 rape and murder of a 20-year-old woman. Campbell's attorneys claim the state can't execute him because he's "intellectually disabled," proof of which state officials allegedly concealed. If true, according to SCOTUS precedent, the Eighth Amendment's prohibition on cruel and unusual punishments prevents Campbell's execution. As WaPo's Mark Berman and Karen Brooks Harper report:

The U.S. Court of Appeals for the 5th Circuit in New Orleans ruled Tuesday afternoon that the execution be stayed, saying that although it was regrettable that it took until “the eleventh hour” for the court to review evidence of the inmate’s intellectual disability, that was not the fault of Campbell or his attorneys.

 

“Because of the unique circumstances of this case, Campbell and his attorneys have not had a fair opportunity to develop Campbell’s claim of ineligibility for the death penalty,” Judge James L. Dennis wrote for the court. “In light of the evidence we have been shown, we believe that Campbell must be given such an opportunity.”

 

It’s unclear how long the execution will be stayed. There is no set time for the stay, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

Campbell's attorneys also have appealed Texas's secrecy as to pharmacy providing the killing drug, which purportedly presents a substantial risk that it could cause Campbell excruciating physical and mental pain. Last month, state officials halted Clayton Lockett's execution in Oklahoma after he appeared distressed, but he died of a heart attack 43 minutes after the procedure began. Unlike Oklahoma's three-drug cocktail, however, Texas only uses pentobaritral, which state officials claim has killed efficiently since its adoption two years ago.

May 13, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Monday, May 12, 2014

Missouri inmate seeks halt to his upcoming execution

Death row inmate Russell Bucklew is seeking an emergency injunction to prevent Missouri from killing him. Bucklew claims he has a rare medical condition the will cause "tortuous pain" during his execution, in violation of the Eighth Amendment's prohibition against "cruel and unusual punishments." The Courthouse News Service (CNS) tells his story:

Bucklew was convicted in 1997 of first-degree murder, kidnapping, first-degree burglary, rape and armed criminal action. He shot Michael Sanders to death and then kidnapped his ex-girlfriend and raped her before being wounded in a shootout with police.

 

Later, Bucklew escaped from prison and attacked his ex-girlfriend's mother with a hammer. A prosecutor called Bucklew "a homicidal Energizer bunny" because of his persistence in going after his victims, the Southeast Missourian reported.

 

In his lawsuit, Bucklew claims he has a vascular tumor that will cause extreme pain and suffering, violating his Eighth Amendment rights, if he is executed by lethal injection on May 21.

 

"The size of Mr. Bucklew's tumor and the weakness of his distended vessels create a very substantial risk that he will suffer excruciating, even tortuous pain during an execution," the complaint states.

 

"Because the vascular tumor partially obstructs Mr. Bucklew's airway, he is at high risk of choking during an execution, particularly if distended vessels in his mouth or throat rupture and bleed. This will cause gasping and coughing that Mr. Bucklew will experience as suffocation.

 

"There is also a grave risk that, because of Mr. Bucklew's severe vascular malformations, the lethal drug will not circulate as intended, delaying the suppression of the central nervous system and prolonging the execution - which will likely cause excruciating pain to Mr. Bucklew. These risks are heightened by the use of a compounded drug, pentobarbital, in the absence of any disclosure about the drug's safety, purity and potency. In fact, the Department of Corrections will not even confirm whether the drug is subject to any laboratory testing whatsoever."

 

Bucklew claims the state has no protocol for executing a prisoner with a complex medical condition such as his, and that a qualified physician should be in the chamber for the sole purpose of reviving him if the execution is not successful. 

Lethal injection has become the topic of considerable debate since European producers of sodium thiopental withdrew the drug from the market. As a result, some states have turned to drug cocktails produced by domestic compounding pharmacies. They often keep the identity of these pharmacies anonymous, allegedly out of some concern about retaliation from anti-death penalty activists. These secrecy laws have been repeatedly challenged in court.  

The lethal injection itself has drawn considerable attention after two highly publicized executions in Ohio and Oklahoma. In Ohio, Dennis McGuirre's execution lasted 26 minutes, during which he reportedly writhed in pain and gasped for air. Oklahoma executed Clayton Lockett two weeks ago with similar results. Lockett's execution was halted by the on-site doctor after he showed signs of distress, but he died of a heart attack 43 minutes after the procedure began. Following his death, the state agreed to a six-month stay of execution for the inmate who had been scheduled for killing the same night as Lockett so that an investigation can be completed. The NYTimes recently said the United States has "no business putting people to death by any means." It described the death penalty as "barbaric, racist," and it called states' secrecy as to the providers of lethal injection drugs "cowardly."   

Missouri's lethal injection protocol is much like that of Oklahoma.  

CRL&P related posts:

May 12, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (2)

Thursday, May 8, 2014

"Oklahoma attorney general agrees to 6-month stay of execution after botched lethal injection"

The AP reports:

Oklahoma's attorney general agreed Thursday to a six-month stay of execution for a death row inmate while an investigation is conducted into last week's botched lethal injection.

 

Attorney General Scott Pruitt's office filed court documents Thursday saying it wouldn't object to a 180-day stay of execution being sought by attorneys for inmate Charles Warner while the investigation is underway.

 

Warner was scheduled for execution on the same night last week as Clayton Lockett in what would have been the state's first double execution since 1937. But Lockett's vein collapsed during his lethal injection, prompting prison officials to halt the execution. He later died of a heart attack.

 

Gov. Mary Fallin then issued a two-week stay of execution for Warner, but his attorneys asked for a six month delay. Pruitt's office agreed in a motion filed with the Oklahoma Court of Criminal Appeals, and if the court agrees, Warner's execution would be postponed until Nov. 13.

The news comes just days after Clayton Lockett's botched execution for the brutal murder of a 19-year-old woman. The execution lasted 43 minutes. While strapped to the gurney, Lockett reportedly writhed in pain. Although officials eventually suspended the execution, he died of cardiac arrest shortly thereafter. 

Lockett's execution came after a failed legal challenge to Oklahoma's secrecy as to the identity of the pharmacy providing the drug cocktail for his execution. Oklahoma is one of several states that protects the anonymity of these sources claiming such measures are necessary to protect the suppliers from retaliation by anti-death penalty advocates. This protection has come under increasing scrutiny as traditional European suppliers of sodium thiopental, the drug formerly employed in executions, have ceased exporting the drug to the U.S.

Several states now employ drug cocktails provided by compounding pharmacies. Lockett's execution, for example, began with an extraordinarily large dose of the sedative midazolam. He then received the paralytic pancuronium bromide, followed by potassium chloride to stop his heart. 

Officials in Oklahoma attribute the procedural problems in Lockett's execution to difficulty locating suitable veins in which to inject the drugs.

Note: The original link to the AP's article reporting Oklahoma's 6-month stay has been replaced with its more substantive follow-up.

May 8, 2014 in Theories of Punishment | Permalink | Comments (0)

Thursday, April 24, 2014

Oklahoma to hold first double execution in 80 years

Well, that didn't take long. Just days after staying the executions of two death row inmates, the Oklahoma Supreme Court announced on Wednesday that the inmates did not have a right to know the source of the 7 scissor tailed flycatchersdrug cocktails that would be used to kill them. The court dissolved the stays and the inmates soon will be executed.

Today, the governor announced that the state plans to carry out the exections of Clayton Lockett and Charles Warner on the same day. According to the AP:

It's rare for multiple executions to happen in one day, with only Arkansas, Illinois, South Carolina and Texas doing so since the death penalty was reinstated in the U.S. in 1976, according to the Washington, D.C.-based Death Penalty Information Center.

 

"I think it's actually becoming less common because states have deliberately spaced things out," said Richard Dieter, executive director of the center, which opposes capital punishment. "It takes a toll on a prison and its personnel."

 

The most recent occurrence of two inmates being executed on the same day was Aug. 9, 2000, in Texas. The last time Oklahoma did it was June 11, 1937, when convicted murderers Charlie Sands and Leon Siler were electrocuted.

 

Arkansas is the only state that has executed three inmates on the same day since 1976: once in 1994 and again in 1997. In both instances, all three executions were carried out in less than three hours, according to the Arkansas Department of Corrections.

April 24, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (4)

Wednesday, April 23, 2014

"Missouri executes inmate after Supreme Court turns down stay request"

UPDATE: SCOTUS also has reversed a lower court's decision overturning the death sentence given to a Kentucky man for the kidnap, rape and murder of a teenager in 1997. The AP reports:

Woodall pleaded guilty to kidnapping Hansen on Jan. 25, 1997, from a convenience store in western Kentucky. Woodall acknowledged that he raped the girl and slit her throat twice before taking her body to Luzerne Lake and throwing it in the water. DNA evidence, fingerprints and footprints led to Woodall.

 

A jury imposed a death sentence, but more than a decade later, a federal court found the jury instructions were flawed and overturned that sentence. The 6th U.S. Circuit Court of Appeals upheld that ruling in 2012.

 

Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Elena Kagan joined Scalia's opinion reversing the appeals court.

 

To overturn a death sentence, Scalia said, Woodall had to show the decision involved an "unreasonable application" of clearly established federal law. But that standard can be met "only if the error alleged is so obvious that there could be no fairminded disagreement about its existence," Scalia said. In this case, the majority found the trial judge's decision was not unreasonable.

 

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, said the "normal rule is that Fifth Amendment protections apply during trial and sentencing." Breyer said the high court's precedent was clear in requiring the no-adverse-inference instruction during a sentencing hearing.

---

SCOTUS has denied William Rousan's request for a stay of execution for the 1993 killing of a couple in Missouri by Rousan, his brother, and his son. After rehearsing the gory details of the crime, The Guardian reports:

Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan co-operated with prosecutors and pleaded
guilty to second-degree murder. He served seven years in prison and was released in 2001.

 

Governor Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings.

 

Earlier Tuesday, the US supreme court turned down Rousan's request to delay his execution.

 

Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process.

 

Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma supreme court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs.

 

Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.

April 23, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

DOJ announces clemency initiative to address crack and powder cocaine sentencing disparity

The DOJ announced today that thousands of non-violent drug offenders will be eligible for early release. Eligibility will depend on whether:

  • Crack_150-642c6bf99d87d6d0198d845e957b99ba980cecba-s6-c30They are currently serving a federal prison sentence that is longer than current mandatory sentences for the same offense.
  • They are nonviolent, low-level offenders without "significant ties to large scale criminal organizations, gangs or cartels.
  • They have served at least 10 years of their sentence.
  • They do not have a "significant criminal history."
  • They have demonstrated good conduct in prison.
  • They have no history of violence before or during their current imprisonment."

The new clemency guidelines reflect the DOJ's ongoing effort to mitigate sentencing disparities between crack and powder cocaine as a result of mandatory minimums before the 2010 Fair Sentencing Act.

NPR reports:

Inmates, the administration said, will be notified in coming days about the expedited clemency program, and how to access pro bono lawyers through a working group called Clemency Project 2014. The group, formed after Cole asked lawyers to help with the clemency initiative, includes federal defenders, as well as representatives from groups including the American Civil Liberties Union and the American Bar Association.

 

While the move has been hailed by groups working for fairness and sentencing, and also additional changes to mandatory minimum drug sentences – including bipartisan efforts on Capitol Hill – some prosecutors have expressed skepticism about the clemency initiative.

 

"Americans want to rest assured knowing that 10 years means 10 years, and life in prison means life in prison," says Scott Burns, head of the National District Attorneys Association. "Prosecutors' fears are that our low level of serious crime in America will begin to rise – and nobody will monitor the cost of re-arresting and re-prosecuting offenders when they commit new crimes."

April 23, 2014 in Theories of Punishment | Permalink | Comments (0)

Tuesday, April 22, 2014

Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs

The New York Times reports that the Oklahoma Supreme Court has delayed the executions of two inmates challenging the state's law protecting the identity of its source of lethal injection drugs. The inmates' attorney said they were "relieved" that the court has granted them the opportunity "to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding [the state's] lethal injection procedures," while the state's attorney general called the court's decision "a constitutional crisis for our state."

The Times reports:

0,,15858458_303,00The case for a delay had seemed airtight to many legal experts. Last month, a state district court declared that a 2011 supplier-secrecy law, which officials said they needed to coax companies to supply scarce execution drugs, was unconstitutional. In effect, the court agreed that the condemned have a right to know how they will be put to death and to question, at least, whether the untested drug combination the state says it will use, from sources it refuses to reveal, could amount to cruel and unusual punishment.

 

The case is part of a growing legal battlenationally over secrecy in methods of execution, as traditional drugs have become scarce and states have engaged in covert scrambles to find new drug combinations and manufacturers. Oklahoma officials say they must offer secrecy because potential manufacturers fear reprisals for involvement with the death penalty.

 

The decision overturning Oklahoma’s supplier-secrecy law, made March 26 by Judge Patricia Parrish, is now under appeal. But in the meantime, Judge Parrish said, it was up to the state’s Court of Criminal Appeals to issue a stay of execution while the issue plays out.

 

The defendants applied to that court, but it asserted that under its governing statute, it had no jurisdiction because the condemned men had no pending case before their court, such as an appeal of their convictions or sentences.

 

So the lawyers appealed to the Oklahoma Supreme Court. Last Thursday, in the latest of several increasingly pointed go-rounds, the Supreme Court said that the Oklahoma Constitution gave it the authority to decide matters of court jurisdiction and that the Court of Criminal Appeals was misreading its own statute and should handle the request for an emergency stay.

 

On Friday, the criminal court responded with the bureaucratic equivalent of “mind your own business,” saying the Oklahoma Supreme Court does not have the power “to manufacture jurisdiction” in the criminal court “by merely transferring it here.”

Because sources for execution drugs have dried up, states have had to turn to compounding pharmacies subject to less government regulation for substitute drug cocktails. However, due to staunch opposition to the death penalty (and for fear that there will be nowhere else to turn for their fix), states have taken steps to ensure that these sources remain anonymous.

In an editorial earlier this year, The Times called such secrecy "cowardly" and condemned the continued use of the death penalty as "barbaric, racist and arbitrary in its application."

CRL&P related posts:

April 22, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Tuesday, April 15, 2014

"Ohio Settles Federal Lawsuit, Will Cut Youth Isolation In State Prisons"

The Crime Report notes that Ohio will limit the time juvenile prisoners spend in isolation. It reports:
 
Drc_logo_smallThe U.S. Justice Department and Ohio officials have reached an agreement that will reduce the amount of time spent in isolation by young people in state juvenile correctional facilities, reports the Sandusky Register. Last month, federal officials filed a lawsuit asserting that youths are being held in seclusion for significant periods of time at four locations. “Numerous national studies have established that seclusion of youth with mental health disorders even for short periods of time can severely harm youth,” said the lawsuit. One youth was in seclusion for 19 days, and another for 21 days.
 
The suit asked a court to end the practice of putting youths in seclusion for long periods of time and to provide better mental health treatment. Erie County Juvenile Court Judge Robert DeLamatre said the number of youth in state juvenile correctional facilities had declined dramatically, from about 2,300 in 2001 to 500 today. Ongoing litigation over the state system probably made some judges more reluctant to send youth into the state system, he said. “Certainly the lawsuit brought a spotlight on conditions, and things in the department that may be a little invisible to [judges.] We don’t know on a day to day business how that youth is being treated,” he said.

April 15, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Friday, February 21, 2014

Georgia man told state will turn him out of nearly every county

A Georgia man may no longer be a Georgia man after the Eleventh Circuit upheld his banishment from nearly the entire state. According to the AP, his story begins:

Thompson was sentenced to eight years in prison after he fired a round from a high-powered rifled into the brick wall of a suburban Atlanta house where his stepmother's sister lived. No one was hurt, but the family said they were frightened.

 

His sentence was eventually cut in half by a review panel, but a condition of his probation banned him from living everywhere in Georgia except Ware County, near the Florida line and about 250 miles from his family. After a subsequent arrest on a probation violation and more time in jail, his living restrictions were modified and essentially banned him from living just about anywhere in the state north of Macon.

KPP-Open_PrairieNaturally, he appealed, but on February 19 a federal appeals court rejected him--he did not have standing.

I had thought banishment was a relic of the past, but I now see Georgia is into the whole banishment thing (e.g. here, here, and here). Apparently, D.C.'s okay with it too. After D.C. banished a tree-climbing protester, Slate's Brian Palmer took a look at the seemingly antiquated punishment in the U.S. He found:

A Washington, D.C. judge ordered a man to stay out of the District of Columbia as a condition of his release from jail on Tuesday. Rives Miller Grogan was arrested for climbing a tree near the Capitol as part of a protest during President Obama’s inauguration. Can you be banished from a state?

 

Probably not. Sixteen states have constitutional provisions prohibiting banishment, and appeals courts in many others have outlawed the practice. Although it remains on the books in a handful of states—the Tennessee Constitution permits exile, and Maryland’s Constitution specificallyprescribes banishment as a punishment for corruption—appeals courts usually overturnsentences of exile. There has been only one recent case of banishment from a state: In 2000, a Kentucky judge banished a domestic abuser from the state for one year. (The case never reached the state’s high court.) The District of Columbia has no constitution, and its statutes don’t mention banishment, so the legality of Grogan’s exile is unclear. Judges typically get wider discretion in prescribing conditions of bail than in sentencing, but there is a strong trend toward invalidating interstate banishment under any circumstances.

 

In the view of many legal scholars, the permissibility of banishment depends on its geographic breadth. Banishment from the country is decidedly unconstitutional, at least for U.S. citizens. Chief Justice Earl Warren described denationalization of army deserters as “a form of punishment more primitive than torture.” Banishment from areas around schools or day care facilities, however, is an increasingly popular punishment for sex crimes. Gang members are occasionally banished from their home towns to keep them from bad influences. Appeals courts sometimes approve these sanctions as long as they don’t result in a functional banishment. For example, a Georgia law prohibiting sex offenders from living within 1,000 feet of a bus stop was declared unconstitutional in 2007. Legislators made clear that they intended to exile sex offenders from the state, and the restrictions left virtually nowhere to live.

This Georgia fellow, however, can't come within 1,000 feet of his family's home, on which he purportedly depends. According to the AP's story:  

A psychiatrist has testified that Thompson is mentally ill and mentally incapable of functioning without his parents and support system in metro Atlanta.

 

"We are disappointed that the court did not reach the key issues," said Thompson's attorney Gerald Weber, who joined the case at the appeal level. "Thompson is banished from the very places where his support network, family and health care are located."

 

Thompson said he thinks the banishment is ridiculous given that other convicted offenders — including rapists, murderers and child molesters — are often released from prison without a banishment condition on their probation.

 

"I've done my time, and I've paid my debt," he said Wednesday. "If I can live in other communities, I should be able to live anywhere. All they have to do is issue a restraining order."

 

Georgia judges cannot banish convicted criminals from the state, but the Georgia Supreme Court has upheld the practice of banishing them from living in all but one of the state's 159 counties.

(h/t How Appealing)

February 21, 2014 in Theories of Punishment | Permalink | Comments (0)

Wednesday, February 12, 2014

Judge blocks Missouri's access to execution drug

Missouri will have to wait to receive the drug cocktail for its upcoming execution until at least next week. Ohio recently employed the same drug--compounded pentobarbital--in the execution of Dennis McGuire on January 16, which lasted 26-minutes. Ohio Gov. John Kasich (R) has since delayed the state's next scheduled execution until the Department of Rehabilitation and Correction completes its review of McGuire's execution.

As The Guardian reports:

A US federal judge has temporarily blocked an Oklahoma compounding pharmacy from selling a drug to the Missouri department of corrections for use in an upcoming execution.

 

The restraining order was issued in a lawsuit filed a day earlier in US district court by the Missouri death row inmate Michael Taylor. His attorneys allege that the department contracts with the Apothecary Shoppe to provide the drug set to be used in Taylor’s 26 February lethal injection.

 

The lawsuit argues that several recent executions involving the drug, compounded pentobarbital, indicate it will likely cause Taylor “severe, unnecessary, lingering and ultimately inhumane pain”.

 

In his order on Wednesday Judge Terence Kern wrote that Taylor’s attorneys submitted “facts demonstrating that immediate and irreparable injury, loss, or damage will result to plaintiff before defendant can be heard in opposition”.

 

The judge set a hearing for Tuesday and ordered the pharmacy to submit a response to the injunction by Friday. He said the order would remain in effect at least until the hearing.

 

It was not immediately clear if the execution would be delayed because of the ruling. The state has not revealed the name of the compounding pharmacy supplying the drug and the Apothecary Shoppe previously declined to confirm or deny that it was the source of a drug used in an earlier Missouri execution.

CRL&P related posts:

February 12, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Thursday, January 30, 2014

NYTimes calls for end to 'barbaric, racist' death penalty

The death penalty is "barbaric, racist and arbitrary in its application," The New York Times Editorial Board said yesterday as it lamented the January 29 execution of Herbert Smulls in Missouri. Unlike Dennis McGuire's January 16 execution in Ohio, Smull's did not last 26 minutes--it was reportedly "brief." Still, The Times concludes that it's time to abandon the death penalty. It writes:

In the end, the argument over what is the most “humane” way to kill someone only obscures the larger point, which is that, in the 21st century, the United States has no business putting people to death by any means. Public support for capital punishment has reached a 40-year low, and virtually all other Western societies have rejected it. It will end here, too, but not until this despicable practice is dragged out into the open for all to see.

28007169_devlin_lethal_injectionIn both Missouri and Ohio, the states used drug cocktails prepared by compounding pharmacies, which has become common since the original drug--sodium thiopental--is no longer available. However, some states will not disclose the names of the pharmacies from which the cocktails come, a move The Times decries as "cowardly." It explains:

The increased secrecy around lethal-injection drug protocols is only the latest tactic of pro-death-penalty legislators and corrections officials around the country. In Missouri, this secrecy was upheld last week by a federal appeals court, which denied a condemned inmate’s constitutional claim that he is entitled to basic information about the drugs that would be used to put him to death.

 

Herbert Smulls was executed late Wednesday for the 1991 murder of a jewelry-store owner. Missouri refused to name the pharmacy or pharmacies involved in producing the execution drugs.

 

Missouri’s secrecy, along with new legislation in states such as Georgia and Tennessee, is a response to a mounting “crisis” in death-penalty states: Because many drug manufacturers now refuse to supply drugs for use in executions, states are scrambling to replenish their stocks. This often means turning to compounding pharmacies, which exist in a largely unregulated world.

Additionally, The Guardian reports today that the result of its recent survey of Texas's executions over the last three years demonstrates that new procedures are taking longer to kill the condemned--indeed lasting as long 30 minutes. It states:

US death penalty states face a deepening crisis in their struggle to procure medical drugs for use in lethal injections, with new evidence that the increasingly random methods being used are subjecting condemned prisoners to prolonged and possibly excruciating deaths.

 

A Guardian survey of death sentences carried out over the past three years by Texas – the most prolific of all execution states – has found that the procedure now takes on average twice as long as under previous protocols. A study of Texas department of criminal justice records and eyewitness media reports mainly from the Associated Press shows a notable lengthening of the death process following the switch in July 2012 from the conventional three-drug cocktail to a single drug, pentobarbital.

 

Ten executions prior to the change took on average 10 minutes to complete, ranging from nine to 11 minutes between the administration of the lethal injection and the declaration of death.

 

The next 23 executions using only pentobarbital took on average 20 minutes, with the full range between 12 to 30 minutes.

Earlier this week, Louisiana announced it will use the combination drug used in McGuire's execution in Ohio, which one witness described as "ghastly,"--"[h]is gasps could be heard through the glass wall that separated us." McGuire's family now plans to sue the state for alleged violations of the Eighth Amendment's prohibition on "cruel and unusual punishment."

Thirty-two states still use the death penatly

CRL&P related posts:

January 30, 2014 in Theories of Punishment | Permalink | Comments (0)

Tuesday, January 28, 2014

When victims' families defend defendants against capital punishment

In When Victims Speak Up in Court--in Defense of the Criminals, The Atlantic's Andrew Cohen writes about the difficulties faced by prosecutors and judges when victims--or victims' families--defend defendants against the state's pursuit of certain punishments. In particular, Cohen examines the ongoing Colorado murder case in Colorado v. Montour in which the victim's family opposed the death penalty for the Lethal-injection1defendant. Cohen explains:

The last time [the defendant] faced trial for [the victim's] death, the victim's family supported the death penalty as an option. Not this time. This time, having educated themselves about capital punishment, and better understanding the nature of [the defendant's] mental illness at the time of [the victim's] death, the [the victim's family] have been vocally, stridently, ceaselessly against the imposition of death in this case. Earlier this month, for example, as potential jurors in the...case were lined up outside the courthouse waiting to learn about the case for which they were summoned, the [victim's family] picketed the line and pleaded with [the prosecutor] to spare their son's killer.

 

Episodes like this -- and the media attention they inevitably generated -- prompted....the prosecutor in the Montour case[] to remove the family  from his preliminary list of witnesses to be called during the sentencing of the case. And that removal, in turn, has prompted [the defense] attorneys to ask the trial judge in the case to allow the [victim's family] to testify during sentencing. That prompted an aggressive response from [the prosecutor], arguing that Colorado's victims' rights laws don't apply to "mitigating" factors during sentencing but only to "aggravating factors." And that is where we stand today.

Capital punishment, of course, likely will subsume much of this controversy (perhaps at the expense of other much needed sentencing reforms), especially as questions as to its propriety have re-emerged  nationally after the shameful Ohio execution that lasted 26 minutes. The executed man's family now is suing the state for its alleged violation of the Eighth Amendment's prohibition on "cruel and unusual punishment." Meanwhile, several state senators have called for the reinstatement of firing squads in executions. Given these developments, Cohen's article is a particularly compelling read. It begins:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

 

The immutable trio that once existed in criminal cases— judge, prosecutor, and defendant—now almost always resembles a quartet. Victims have a voice—and they use it. All 50 states now allow some form of "victim impact statement" at sentencing. Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But these efforts almost always fail. Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

 

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state? What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son? What responsibility does the prosecutor have in that case? What obligations do the courts have? Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

 

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child. Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer. The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues. But I haven't been able to find a single victims' right advocate who believes that's true.

CRL&P related posts:

January 28, 2014 in Collateral Consequences, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Thursday, January 9, 2014

Imprisonment and Disenfranchisement of Disconnected Low-Income Men

The Urban Institute has this issue brief describing the disparate impact mass incarceration has had on African Americans and Hispanics. The title of this post comes from that brief, the abstract of which states: 

Incarceration rates have risen over time and vary by race and ethnicity, reflecting changes in federal and state crime policies over the past few decades. In 2011, African American men were six times more likely and Hispanics nearly two and half times more likely to be imprisoned than white men. This brief summarizes some of the disparate impacts these policies have had on African American and Hispanic men and the consequences for their families and communities.

January 9, 2014 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Sunday, December 29, 2013

There's an alarming number of deaths in US jails

The Guardian had this disturbing article early this week about the number of people who have died while in the custody of United States jails. The title of this post comes from the article, which begins:

Kyam Livingston begged for help. After seven hours of lying on the floor of a jail cell, the 38-year-old mother of two died, her calls unheeded by the correction officers providing security for the approximately 15 female inmates at Brooklyn "central booking" jail this past summer, according to witnesses and court documents.

 

Witnesses told the family that she had died in the cell among fetid conditions before she was taken to Brooklyn Hospital Health Center on 21 July 2013 where Livingston was pronounced dead at 6:58am, according to police reports. A witness, registered nurse Aleah Holland, told The Daily News, that police at Central Booking ignored her complaints of stomach pains and diarrhea. She said that when she and other inmates banged on the bars calling for help, officers told them Livingston was an alcoholic.

 

No one knows what happened, and no one wants to say. The NYPD told the family that she died of a seizure, but her family says she never suffered from seizures. This October the family sued the city, the NYPD, and the Department of Corrections in an effort to force systemic change and "responsibility" for her death.

 

Livingston was one of the few hundred jail deaths that happen across the country. In 2011, (the latest available numbers) 885 inmates died(pdf) in the custody of local jails, the Justice Department's Bureau of Justice Statistics reported. Notice I said jails. These are different from prisons. Prisons are for people who have been convicted of a crime and sentenced. There are roughly 3,000 jails nationwide and each facility is set up to process people that have been arrested before they are arraigned or go to trial. Some will serve a misdemeanor sentence (of under a year). The majority will be let go because the charges against them won't stick as they move through the legal system. Others will remain in jails while waiting to go to trial too poor to make bail – yet to be convicted of anything. Regardless, they will be treated as criminals.

Also on CRL&P: How much does a public defender need to know about a client?

December 29, 2013 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Friday, December 20, 2013

CRL&P Daily Reads: Dec. 20, 2013

Thursday, December 19, 2013

Community based-mediation between youth offenders and their victims?

In Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing, Professor Samantha Buckingham argues that a community-based sentencing scheme would better serve youth offenders--and society at large--than our currently unsophisticated and inefficient one. Here's the abstract:

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society. Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders. The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.

December 19, 2013 in Collateral Consequences, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Wednesday, December 11, 2013

Our Nation has a Secret: Felony Disenfranchisement in America

Yesterday, on HuffPost, the NAACP's Jokata L. Eaddy reminded us that many Americans remain disenfranchised. The title of ths post comes from Eaddy's post, in which she writes:

Laws preventing returning prisoners from voting originated prior to the Reconstruction era in an attempt to stem the growth of the black voting bloc and black electorate. Today, the effects are the same. The latest data reveals that nearly six million people cannot vote because of felony disenfranchisement laws practiced in across 48 states and the District of Columbia. More than two million of those disenfranchised are black.

 

Florida, Kentucky, and Iowa practice permanent disenfranchisement, erecting impenetrable barriers for people who are no longer incarcerated. Virginia made some strides after an executive order this summer granted automatic restoration of rights to people with non-violent felony convictions; however, that order's future will rely on the Governor-elect's agenda beginning in 2014. Kentucky and Iowa are slowly embracing change, but until those laws are amended in their state Constitutions, like this year's history-making legislation in Delaware, each state is still behind the curve. 

For decades, the United Nations has recognized that the right to vote and the right to be free from discrimination as integral components of our international system. This is why groups like the NAACP, The Sentencing Project, and the ACLU have made continuous efforts to highlight how felony disenfranchisement laws violate these principles and our country's international obligations. This year the United Nations Human Rights Committee signaled that felony disenfranchisement practices would be a priority during a March 2014 review of the United States' obligations to the International Covenant on Civil and Political Rights.

 

Additionally, a growing number of nations have supported UN resolutions inclusive of language calling on countries to ensure that all citizens are granted the right and opportunity to vote regardless of incarceration status.

While felon disenfranchisement gets comparatively little coverage, I'm not convinced that it's a secret. As I've noted, several potential Republican presidential candidates have stated their support for extending the right to vote to ex-felons. Sen. Rand Paul said so much earlier this year; and, Sen. Rich Santorum and then presidential candidate Mitt Romney exchanged attacks over Santorum's support for such an extension in a 2012 presidential primary in South Carolina. In October, The Atlantic covered felon disenfranchisement and the ways in which it shifts political power away from minority communities; and, The American Prospect recently ran this cover story on the history of felon disenfranchisement. Indeed, because of the commitment of advocates like Eaddy, felon disenfranchisement seems to be of increased interest.

However, Eaddy is certainly correct in suggesting that political progress on the issue has been frustratingly slow. The problem, it seems to me, is that felon disenfranchisement is easily separable from other voting rights issues because of the subjects of the disenfranchisement. Politicians and the media largely ignore issues affecting felons and ex-felons for those that produce political advantages and higher ratings. That is, we know about felon disenfranchisement, but politicians and the media can convince us that the issue is less pressing than others.

For this reason, advocates ought to consider how to align extension of the franchise to felons and ex-felons with ongoing debates over the right to vote more generally. I have made my pitch here

Some helpful law review articles:

CRL&P related reads:

December 11, 2013 in Equal Protection Clause, Right to Vote, Theories of Punishment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 11, 2013

NSA takes advantage of 'cookies' used for advertising to track surveillance targets.

Federal judge rejects California AG's request for dismissal in case challenging law requiring 10-day waiting period for gun owners.

Cruel and unusual punishment suit after prisoner placed in solitary confinement for one month could cost taxpayers.

American man claims discrimination after the California Department of Corrections denied him a job because he had previously used a false SSN, while in Illinois this guy still has a job.

Amendment aimed at protecting sexual assault victims scrapped as Congress passes the National Defense Authorization Act.

Bill introduced in the Senate to eliminate state laws regulating the sexual activity of people with HIV.

Chinese Law Prof is expelled for criticizing China's one-party government.

Man convicted of a hate crime after attacking a Sikh cab driver to serve more than three years in prison. 

And, a six-year old is suspended after kissing a classmate on the cheek. I wonder if he would have received similar punishment if had hit her.

 

December 11, 2013 in Civil Rights Litigation, Fourth Amendment, Freedom of Speech, Gun Policy, Prisons and Prisoners, Theories of Punishment, Web/Tech | Permalink | Comments (0)

Saturday, December 7, 2013

CRL&P Daily Reads: Dec. 7, 2013

Thursday, December 5, 2013

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.

 

December 5, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Theories of Punishment, Voter ID, Web/Tech | Permalink | Comments (0)

Sunday, November 24, 2013

CRL&P Daily Reads: Nov. 24, 2013

Saturday, November 23, 2013

CRL&P Daily Reads: Nov. 23, 2013

Friday, November 22, 2013

Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty

The title of this post comes from this intriguing article challenging the current lack of safeguards against discrimination in death penalty proceedings. Here's the abstract:

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional. 

Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.

 

November 22, 2013 in 14th Amendment, Equal Protection Clause, Theories of Punishment | Permalink | Comments (0)

Sunday, November 17, 2013

CRL&P Daily Reads: Nov. 17, 2013

Wednesday, November 13, 2013

Ohio delays execution as inmate seeks to donate organs

The title of this post comes from this fascinating story about a death row inmate whose execution was delayed so that he could donate organs to his mother and sister. The story is particularly interesting because of the tension between the state's interest in administering justice and the benefit to the would-be recipients of inmates' organs. Here are the details:

Ronald Phillips, 40, was set to be executed Thursday for the 1993 murder of Sheila Marie Evans – the three-year-old daughter of his girlfriend.


Ohio Governor John Kasich rescheduled the execution for July 2, 2014 to allow the time needed to determine if Phillips can donate “non-vital” organs such as a kidney prior to his execution.


"I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said in a statement.


Phillips had initially requested that his organs be harvested after his death by lethal injection.


His mother has kidney disease and his sister has heart problems, but he said he wanted to donate his organs to “as many people as possible.”

 

November 13, 2013 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Tuesday, November 5, 2013

CRL&P Daily Reads: Nov. 5, 2013

Illinois House takes up gay marriage bill, and the U.S. Senate prepares to pass ENDA.

California children apparently see nothing wrong with gay marriage.

U.S. Senate takes up bill to provide more protection for sexual assualt victims in the military; The Atlantic says "[silent] epidemic" of domestic abuse in same-sex relationships requires more research; and The Week considers the utility and advisability of wearing anti-rape underwear.

TX Attorney General sues EEOC because the agency's hiring guidelines allegedly prohibit the state from denying certain jobs to former felons.

Excited dispute over TX voter ID law erupts at local county court.

Reuter's columnist laments GOP's continued efforts to block federal judicial appointments.

 

November 5, 2013 in Election Law, Prisons and Prisoners, Right to Vote, Same-sex marriage, Theories of Punishment, Voter ID | Permalink | Comments (0)

Monday, November 4, 2013

US Supreme Court rejects Killen's appeal for new trial in 1964 'Mississippi Burning' slayings

The Supreme Court has rejected the appeal of a man found guilty of killing three civil rights workers in 1963, a crime for which he was not convicted until 2005. The title of this post comes from this article from the Associated Press, which states:

The U.S. Supreme Court has rejected the appeal of Edgar Ray Killen, convicted in 2005 for the 1964 slayings of three civil rights workers in Mississippi.

The court ruled Monday that it won't review lower-court rulings that found no violations of Killen's constitutional rights during his trial in Mississippi.

Killen, now 88, was convicted of manslaughter 41 years to the day after the slayings of Michael Schwerner, James Chaney and Andrew Goodman. He is serving 60 years.

On June 21, 1964, Schwerner, Chaney and Goodman disappeared in Neshoba County. The FBI found their bodies buried in an earthen dam Aug. 4, 1964, in what became known as the "Mississippi Burning" case.

 

November 4, 2013 in Civil Rights History, Prisons and Prisoners, Right to Vote, Theories of Punishment | Permalink | Comments (0)

Friday, November 1, 2013

Attorney: Ohio execution changes not acceptable

The title of this post comes from this report from the AP about one attorney's challenge to Ohio's new lethal injection cocktail. The article begins:

A death row inmate sentenced to die for raping and killing a 3-year-old girl was expected to testify at a hearing in federal court Friday as his lawyers challenge the state's new, never-tried lethal injection system.


Attorneys for condemned killer Ronald Phillips want a federal judge to delay Phillips' Nov. 14 execution while they gather evidence as part of their lawsuit against the two-drug process.


The Ohio Department of Rehabilitation and Correction announced a new execution policy last month and said Monday that it would use that system's second option: a combination of a sedative and painkiller never tried before in a U.S. execution.


Phillips' attorneys say the department's announcements came too close to the execution date to allow a meaningful challenge. The state says nothing is substantially different about the new system.

 

November 1, 2013 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

Monday, October 28, 2013

The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory

The title of this post comes from this recent article arguing that imposing prison sentences for hate speech is disproportionate to the harm stemming from such speech, and as a result is an injustice to the speaker. Here is the abstract:

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

 

October 28, 2013 in First Amendment, Freedom of Speech, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (1)