CrimProf Blog

New Mexico Repeals Death Penalty

As the New York Times reported yesterday, New Mexico became the second State in eighteen months to repeal the death penalty.  Thirty-five States now authorize the death penalty while fifteen States and the District of Columbia do not [Mike Mannheimer].

Death Row Inmate Offers Help to Victim's Family

From MSNBC.com: "COLUMBIA, S.C. - Monica Caison figured it was worth a shot, so she fired off a letter, a single paragraph, to the man on death row for kidnapping and killing Alice Donovan during a two-week, 2,300-mile crime spree.

“You say you want to do the right thing,” wrote Caison, the founder of a group that searches for missing people. “I’m here and I’m listening.”

She received Chadrick Fulks’ reply two months later: a map, color photos of the area where he says he left Donovan’s body six years ago, and instructions to look where searchers had not ventured before." Full Story from MSNBC.com... [Michele Berry]

Tennessee Law Review Death Penalty Colloquium

The Tennessee Law Review is preparing to host an exciting colloquium entitled "The Past, Present, and Future ofthe Death Penalty." The Colloquium will take place next month, February 6-7, at the University of Tennessee College of Law.

The lineup includes nationally known experts, such as Dwight Aarons,David Baldus, Hugo Adam Bedau, Steve Bright, Deborah Denno, Lyn Entzeroth, the Honorable Gilbert S. Merritt, and Penny White.

The event's full schedule is available at http://www.law.utk.edu/cle/09DeathPenalty.shtml.

At the website, registration is open as well. The Colloquium is freeto the public, though we're asking everyone to register so we can estimate how many attendees to expect. For attorneys seeking CLE
credit, the Colloquium has been approved for 6 hours of general credit, with registration at $150.

Additionally, the Tennessee Law Review will publish articles from many of the Colloquium speakers in a special Spring 2009 Symposium Issue onthe Death Penalty. Copies may be preordered by mailing a check payable to the Tennessee Law Review for $13 ($10 cost, $3 postage) to Micki Fox, Business Manager, Tennessee Law Review, 1505 W. Cumberland Ave., Knoxville, TN, 37996.

For additional information about the Colloquium or special issue, your readers are welcome to contact CLE Coordinator Micki Fox at 865-974-4464 or mfox2@utk.edu or me at kt.parham@gmail.com, and we'll respond right away. [Kathryn T. Parham] [Mark Godsey]

Is Texas Changing Its Mind About the Death Penalty?

Texas has executed prisoners with a regularity and in record numbers that has earned the state worldwide attention. But, while Texas still led the U.S. in executions in 2008, juries in the state appear to have began to turn away from the ultimate punishment even for the most heinous crimes.

Ten men and one woman were sentenced to death in Texas in 2008, according to the Texas Coalition to Abolish the Death Penalty. It was the lowest annual figure since the 1976 reinstatement of the death penalty. Texas handed out more than 20 death sentences in each of 2003 and 2004. In 2005, the number fell to 14, and it has not risen above that annual figure since. "The need for revenge, for vengeance is being curbed, the appetite is no longer there," contends Robert Hirschorn, a nationally known Texas attorney and jury consultant who has helped pick juries for many prominent clients, including, most recently, millionaire real estate mogul Robert Durst, who was found not guilty of killing and dismembering his neighbor. 

"The tide has changed," Hirschorn says. "It used to be fashionable to say, 'I support the death penalty.' It used to be unfashionable to say, 'I am against the death penalty.'"

Nationwide, and particularly in Texas, anti-death penalty sentiment has usually been centered on college campuses and within the Catholic Church, Hirschorn says, but is expanding beyond those communities — a trend he sees reflected in his jury questionnaires as well as in nationwide political polls.

The number of people sentenced to death has been falling nationally since a peak of about 300 a year in the 1990s, according to the Death Penalty Information Center, to 115 people in 2007. The reduction comes as more states, such as New York, New Jersey and Illinois have passed death penalty moratoriums; while some, like Maryland, are considering whether to abolish executions altogether. [Mark Godsey]

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Lethal Injection and the Problem of Constitutional Remedies

Many states' lethal injection procedures contain serious flaws that create a significant risk of excruciating pain, but, more often that not, courts uphold those procedures against Eighth Amendment challenges. This Article argues that remedial concerns significantly shape - and misdirect - courts' approaches to lethal injection. Many courts, including the U.S. Supreme Court in Baze v. Rees, fear that any lethal injection remedy would unduly burden the state and interfere with executions. Accordingly, they sharply limit the underlying Eighth Amendment right.

This Article contends that these remedial anxieties are misplaced here. Lethal injection procedures are not only dangerous but also the product of troubling political process failures. Accordingly, far from deserving judicial deference, states' systemic lack of attention, transparency, and democratic deliberation require court oversight. Moreover, contrary to common wisdom, lethal injection actions seek only modest relief that would make executions much safer without interfering excessively in state affairs.

In allowing mistaken remedial concerns to dissuade real engagement with the merits in these cases, judges are abdicating their constitutional responsibility to oversee state practices threatening individual rights. Courts may instinctively look to remedial issues when determining the scope of a constitutional right, but, given that they do so, they should consider those issues more carefully. As criticisms of public law injunctions have increased, some judges have overlooked their obligation to hold states accountable for unconstitutional procedures, particularly when state officials insulate those procedures from democratic processes. Until courts adopt a more nuanced approach to constitutional remedies, they will continue to under-enforce some constitutional rights and effectively bless inhumane practices.[Eric Berger]  [Mark Godsey]

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Judges stay Dec. 3 execution of Wash. inmate

Federal and state judges have indefinitely delayed the scheduled Dec. 3 execution of Darold Stenson for the 1993 shooting deaths of his wife and a business partner in Clallam County.

The separate stays were issued Tuesday by judges in federal court in Yakima and in Clallam County Superior Court.

U.S. District Judge Lonny Suko issued his order in a conference call with lawyers. State Attorney General Rob McKenna said his office was asking an appeals court to vacate Suko's order and allow the execution to proceed as scheduled.

Stenson's lawyers this week asked Suko for a temporary restraining order blocking the execution on the grounds that the state last month revised its procedure for administering lethal injections, without previously announcing any changes or going through a rule-making process.

Furthermore, they argued that their client has Type 2 diabetes with veins that are difficult to access, making it more likely that he would suffer pain that constitutes unlawful cruel and unusual punishment.

Without the judge's intervention, they argued, Stenson "will die at the hands of an unreviewed, untested, never-before-implemented lethal injection policy which is likely to cause him severe pain."

McKenna argued that Stenson is "using every means at his disposal to avoid execution." [Mark Godsey]

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Repeal of death penalty urged

state commission reviewing capital punishment recommended last night an end to executions in Maryland, prompting hope among death penalty opponents that the General Assembly could soon abolish the 30-year practice.

The Maryland Commission on Capital Punishment voted 13-7 to make the recommendation. It found that the death penalty carries the "real possibility" of executing innocent people and may be biased against blacks.

The final report of the 23-member commission is expected to provide additional ammunition to Gov. Martin O'Malley and other death penalty opponents in their uphill fight to stop state executions. Previous repeal efforts have narrowly failed despite high-profile campaigns by O'Malley, a Roman Catholic and ardent opponent of capital punishment.

An O'Malley spokesman said last night that the Democratic governor looks forward to reading the final report, which is due next month. The governor has lobbied for a death-penalty repeal and vowed to sign it if the legislature passes it. [Mark Godsey]

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Case Raising Victim Impact Evidence Issue Falls One Vote Short of Cert.

On Monday, the U.S. Supreme Court denied certiorari in a case raising the issue of how far prosecutors can go in capital prosecutions in introducing victim impact evidence.  At issue was a video presentation introduced by the prosecutors at trial, incorporating photographs and video footage of the victim from birth to the age of 19 (when she was murdered), and narrated by her mother.  Both Justice Stevens and Justice Breyer issued dissents from the denial of cert., and Justice Souter also indicated his dissent from the disposition, leaving the petitioner one vote shy of the four needed for the Court to review the case.  The video itself was attached to the dissents and can be accessed here in both Real Player and Windows Media Player formats [Mike Mannheimer]

Davis backers come in all stripes

In his Oct. 21 op-ed about the Troy Davis death penalty case, Spencer Lawton, the district attorney who prosecuted the case in 1991, asserts that: “The only information the public has had in the 17 years since Troy Davis’ conviction has been generated by people ideologically opposed to the death penalty, regardless of the guilt or innocence of the accused.” That is simply not true.

And the fact that it is not true matters, just as the fact that Davis, whose execution has been stayed by the 11th U.S. Circuit Court of Appeals, may be innocent matters.

Neither Libertarian presidential candidate Bob Barr nor former FBI Director William Sessions can be characterized as ideologically opposed to the death penalty. That shoe does not fit. Nor does it fit the many citizens of Georgia who simply want to hold the Board of Pardons and Paroles to its word: “[We] will not allow an execution to proceed … unless and until its members are convinced that there is no doubt as to the guilt of the accused.”

Lawton is resorting to ad hominem attack on the moral integrity of the concerned members of the public who have stepped forward to challenge the legitimacy of using the power of the state to execute Davis.

Certainly, many are categorically opposed to the death penalty. But that does not mean they are not especially concerned and aggrieved when that power is wielded without due regard for the weakness of the case against the accused.

Nor does that approach recognize that many, myself included, who oppose the death penalty do so not on the grounds that it is morally untenable in all cases, but rather out of the well-founded concern that it is too awesome a power to be wielded by human hands. We know too well the truth of the oft-recalled adage: “To err is human.”

Many of us can imagine a crime that would, in our judgment, justify the use of the death penalty. No one, however, or at least no one guided by any moral precepts, can justify the use of the death penalty when there is significant question as to guilt. [Mark Godsey]

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The European Legislature is Protesting the Scheduled Execution of Troy Davis

From AP.com: The European parliament is strongly protesting plans to execute a man in the United States who has been sentenced to death for killing a police officer.

Troy Davis is scheduled to be executed in Georgia on Oct. 27, despite calls from his supporters to reconsider because seven of nine key witnesses against him have recanted their testimony.

EU parliament head Hans-Gert Poettering says all executions are violations of human rights. He says the condemned American symbolizes the fate of all death row inmates, and vows the EU legislature "will fight against the death penalty under any circumstances everywhere in the world."

The 40-year-old Davis was sentenced to death for the 1989 murder of 27-year-old Savannah police officer Mark MacPhail. His case has also attracted support from former U.S. President Jimmy Carter and South Africa Archbishop Desmond Tutu.[Bobbi Madonna]