CrimProf Blog

Should murder accomplices face execution?

An execution last month in Mississippi and another scheduled for this month in Texas have reignited a debate over whether the death penalty should be given to those who participate in killings — but do not personally carry them out.

Dale Bishop was executed July 23 in Mississippi for his role in the 1998 murder of an acquaintance who was beaten to death with a claw hammer along a rural road near Tupelo. But Bishop did not strike the fatal blows. According to uncontested trial testimony, Bishop held and kicked the victim while another man, Jessie Johnson, fatally attacked him with the hammer. Johnson is serving a life sentence without parole.

In Texas, death-row inmate Jeffery Wood this month also could be executed for a murder he did not commit. Wood is scheduled to die Aug. 21 in connection with the 1996 shooting of a convenience store clerk about 100 miles west of Austin, but according to undisputed court testimony, he was sitting in a pickup truck outside the store when the murder occurred. Daniel Reneau, who shot and killed the clerk, was executed by Texas in 2002 for the murder.

Bishop and Wood both were convicted under little-known state laws that allow accomplices in some felonies that result in murder to be prosecuted as killers — even if they were not directly responsible for killing anyone.

The laws are part of a broader legal principle in the United States known as the “felony murder rule,” which also allows those who unintentionally kill someone during serious felonies to be charged with first-degree murder, instead of the lesser charge of involuntary manslaughter. All but four states — Hawaii, Kentucky, Michigan and Ohio— have some version of the felony murder rule, according to a February analysis commissioned by the Connecticut General Assembly.[Mark Godsey]

Inmate 'too fat for execution'

COLUMBUS - A death row inmate scheduled for execution in October says he's so fat that Ohio executioners would have trouble finding his veins and that his weight could diminish the effectiveness of one of the lethal injection drugs.

Lawyers for Richard Cooey argue in a federal lawsuit that Cooey had poor veins when he faced execution five years ago and that the problem has been worsened by weight gain.

They cite a document filed by a prison nurse in 2003 that said Cooey had sparse veins and that executioners would need extra time.

"When you start the IVs come 15 minutes early," wrote the nurse who examined Cooey. "I don't have any veins."

The lawsuit, filed Friday in federal court in Columbus, also says prison officials have had difficulty drawing blood from Cooey for medical procedures. Cooey is 5 feet 7 inches tall and weighs 267 pounds, according to the lawsuit.

Cooey, 41, was sentenced to die for raping and murdering two female University of Akron students in 1986. In April, he lost a challenge to Ohio's lethal injection process when the U.S. Supreme Court said he had missed a deadline to file a lawsuit.

Cooey's execution is scheduled for Oct. 14. He would be the first inmate put to death in Ohio since Christopher Newton was executed last year for killing a prison cellmate.

It would also be the first execution in Ohio since the end of an unofficial national moratorium on executions that began last year while the U.S. Supreme Court reviewed Kentucky's lethal injection procedure. [Mark Godsey]

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Texas Executes José Medellín

In a case that has drawn international attention, Texas executed José E. Medellín on Tuesday night in defiance of an international court ruling and despite pleas from the Bush administration for a new hearing.

The execution came just before 10 p.m. Central time, shortly after the United States Supreme Court denied a last request for a reprieve. Protesters for and against the death penalty clamored in the rain outside the Huntsville Unit, about 70 miles north of Houston, where Mr. Medellín was executed by lethal injection.

“I’m sorry my actions caused you pain,” he said to the witnesses present. “I hope this brings you the closure that you seek. Never harbor hate.”

Gov. Rick Perry, a Republican, rejected calls from Mexico and Washington to delay the execution, citing the torture, rape and strangulation of two teenage girls in Houston 15 years ago as just cause for the death penalty.

Mr. Medellín and five other teenage boys in his street gang took part in the rape and murder of the girls, Elizabeth Pena, 16, and Jennifer Ertman, 14. The gang raped the girls for an hour, then strangled them. Their corpses were found two days later.

Two other members of the gang were also sentenced to die. Two had their sentences commuted to life in prison. The sixth, Mr. Medellín’s brother, Vernacio, is serving a 40-year sentence.

Mr. Medellín’s case has become the focal point of a dispute between Mexico and the United States over whether some Mexicans have been denied fair trials because they were never given an opportunity to talk to a consul. A 1963 treaty requires foreigners accused of crimes to be given that opportunity.

Over the last five days, Mr. Medellín’s lawyers tried to stop the execution by arguing to the Supreme Court that it should be put off until Congress had a chance to pass pending legislation that would require a review of similar cases. They argued that Mr. Medellín would be deprived of life without due process if he died before Congress acted.

But the court, in a 5-to-4 decision, said the possibility of Congressional action was too remote to justify a stay. Justice Stephen G. Breyer wrote in dissent that to permit the execution would place the United States “irremediably in violation of international law and breaks our treaty promises.”

Read full article here. [Brooks Holland]

Medellin capital case is strictly Texas' business

State law must not yield to international wishes

Jose Ernesto Medellin is scheduled to be executed by the state of Texas next Tuesday, a date that is, in the estimation of many, not a moment too soon. According to his own confession, and the testimony of others, Medellin and several others brutally gang-raped, beat, then strangled (first with a belt, then with the girls' own shoelaces) 14-year-old Jennifer Ertman and 16-year-old Elizabeth Peña as the two were walking home on the evening of June 24, 1993. Medellin, et al., further brutalized the girls' bodies after their death "to make sure they were really dead," later bragging to friends.

Without a doubt, these murders constitute two of the most horrible crimes in recent memory. Yet despite the evil inherent in Medellin's actions, and the conviction and death sentence imposed by a jury of his peers, a faction clamors for justice to be hamstrung in favor of an "internationalist" legal standard inconsistent with our domestic rule of law. Central to its argument is the shaky claim that a nonbinding ruling by an international court, existing as part of the United Nations Charter, should somehow trump decisions by Gov. Rick Perry, the Texas Court of Criminal Appeals and the U.S. Supreme Court. [On Friday the Court of Criminal Appeals rejected Medellin's latest petition on grounds it was not filed in a timely manner.] The background in this case shows how weak and indefensible the "internationalist" argument really is.

The Vienna Convention on Consular Relations requires that foreign nationals be given access to their respective consulates within three days of being charged with a crime. Despite living in the United States since the age of 3, Medellin is a Mexican national. Roughly three hours after his arrest, and before the state of Texas was required to notify the Mexican Consulate of his detention, Medellin signed a Miranda waiver and provided a detailed written confession of his crimes. At that time, he was not told of his right to notify the Mexican Consulate of his detention, but was given a court-appointed attorney and was granted the same protections as every other criminal defendant in Texas.

Despite having ample opportunity to do so, Medellin never asserted any rights under the Vienna Convention, either at the guilt or penalty phase of his trial, and was subsequently convicted by a jury of his peers, and sentenced to death. [Mark Godsey]

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No end in sight to death penalty wrangling

More than 30 years after it was reinstated by the nation’s highest court, the death penalty in the

United States

still faces serious legal and political challenges, even as a persistent majority of the American public believes convicted murderers should be executed.

The

United States

is among a handful of industrialized countries to sanction capital punishment, and it has executed more than 15,000 people since colonial days. More than 1,100 prisoners have been put to death since 1976, when the U.S. Supreme Court cleared the way for executions to resume following a decade-long national hiatus.

But while the death penalty today stands as a fixture of American criminal justice, authorized by the federal government and 36 states, its use has declined steadily in recent years as it has run into a host of obstacles in state capitals and in the courts.

The Supreme Court, always at the center of the nation’s debate over the death penalty, this year sought to resolve long-running disputes over how and when executions can be carried out. But a pair of landmark decisions — one upholding lethal injection and the other outlawing the death penalty for those who rape children but do not murder them — exposed sharp divisions in the public, among politicians and on the high court itself over when, if ever, capital punishment is appropriate.

Meanwhile, the justices’ April decision to uphold lethal injection did not immediately resolve the debate over the controversial procedure. Executions by that method remained on hold in many parts of the country, and lawyers for death-row inmates quickly filed appeals based on what they saw as new avenues included in the high court’s ruling.

In the states, which carry out almost all

U.S.

executions, legislative activity and more court rulings have narrowed where the death penalty can be used. In December 2007, New Jersey became the first state in more than 40 years to abolish capital punishment legislatively, while the Nebraska Supreme Court in February struck down the electric chair — the state’s only method of execution — as unconstitutional “torture.” The decision left the state with the death penalty but no legal means of carrying it out. [Mark Godsey]

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Showdown over a Texas execution

The state plans to execute a Mexican national on Aug. 5, despite objections of the World Court.The state plans to execute a Mexican national on Aug. 5, despite objections of the World Court.

The United States is fast approaching a showdown over its commitment to the rule of international law as Texas prepares to carry out the scheduled Aug. 5 execution of convicted killer and rapist Jose Medellin.

On July 14, the International Court of Justice at The Hague ordered the US government to "take all measures necessary" to prevent the execution of Mr. Medellin and four other Mexican nationals awaiting execution dates on death row in Texas.

But Medellin is in the custody of Texas authorities, not the federal government, and the Texas governor says he intends to push forward with the execution next Tuesday.

Congress could take quick action to defuse the international imbroglio, but legal analysts say intervening in the Medellin case would be politically risky for national lawmakers in an election year.

The case highlights a heated debate over the relevance of international legal rulings in the American justice system. It is a flash point in an ongoing rivalry pitting American law against international law, and the controversy is playing out in an emotional case involving race, rape, murder, and capital punishment Texas-style.

"We don't really care where you are from; if you commit a heinous and despicable crime you are going to face the ultimate penalty under our laws," says Allison Castle, a spokeswoman for Texas Gov. Rick Perry (R). "No foreign national is going to receive any additional protection than a Texas citizen would." [Mark Godsey]

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DEATH ROW COST OVERRUN: $40 MILLION

The cost of new housing for San Quentin State Prison's growing number of Death Row inmates will exceed estimates by nearly $40 million, and the compound could run out of space soon after it is completed, according to a state auditor's report released Tuesday.

The auditor's new $395.5 million price tag for the project, which is expected to be completed by 2011, is new bad news for a state facing billions of dollars in budget shortfalls. Gov. Arnold Schwarzenegger and the Democrat-controlled Legislature are still trying to hammer out a spending plan for the fiscal year that began nearly a month ago.

California's prison system is already a big-ticket item, representing about 10 percent of roughly $100 billion general fund spending. And with severe inmate overcrowding and claims of inadequate health care for prisoners, a federal receiver appointed by a judge in 2006 has asked the Legislature for an additional $7 billion to get the prison system to run adequately.

"This is a giant black hole," said Sen. Gloria Romero, D-Los Angeles, chairwoman of the Senate public safety committee. "It's a never-ending gravitational force that'll continue to suck away money that should be spent on local government, education, health and human services and higher education."

Seth Unger, a spokesman for the California Department of Corrections and Rehabilitation, said the latest figures for the San Quentin project are estimates at best. He added that the report "does validate that California needs a newly constructed, modern facility to house our condemned inmate population."

The new complex would house a maximum of 1,152 inmates, providing adequate capacity until 2035 if most inmates are housed two per cell, the report said. But if plans for double-celling are challenged in court and the state loses, San Quentin could run out of space in three years.

"We would simply go back to square one after spending all this money," said Assemblyman Jared Huffman, D-San Rafael, whose district includes San Quentin. [Mark Godsey]

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U.S. Supports Rehearing in Kennedy Death Penalty Ruling

The US Justice Department has appealed to nation's highest court to re-hear a major death penalty case involving sentencing for child rapists, saying the ruling was made without all the facts.

The Supreme Court last month ruled 5-4 against the death sentence for child rapists, but did so without considering a 2007 executive order that makes child rape a crime punishable by death according to military law, the Justice Department said in a rare motion filed this week.

In the high court's ruling in Kennedy v. Louisiana on June 25, Justice Anthony Kennedy said "there is a national consensus against capital punishment for the crime of child rape," due to the lack of recent executions and the low number of states that permit the death penalty for such crimes.

However, by striking down Louisiana's law to accord the death penalty for child rape, the court did not take into account a presidential order authorizing the military to condemn to death convicted child rapists, the Justice Department said.

"The United States has a substantial interest in rehearing because the Court's decision casts grave doubt on the validity of a recent act of Congress and executive order of the president authorizing capital punishment for child rapists under the uniform code of military justice," acting solicitor general Gregory Garre said in the motion.

"Because the court did not have a complete description of the relevant legal landscape, the court's decision rests on an erroneous and materially incomplete assessment of the 'national consensus' concerning capital punishment for child rape."

Read full article here. [Brooks Holland]

Beheading as a More Humane Form of Execution?

BBC News: Three Indonesian militants facing execution for the 2002 Bali bombings want to be beheaded rather than killed by firing squad, their lawyer has said.

The three - Amrozi, Mukhlas and Imam Samudra - are expected to include the request in an appeal to the Supreme Court.

Their lawyer, Muhammad Mahendradatta, said beheading was a more humane form of punishment than firing squad.

Their execution was postponed last month to allow for a final appeal.

"Our clients would seek to have a more humane capital punishment. It should be done in accordance with Islamic law, which is by beheading," Muhammad Mahendradatta told the Associated Press news agency.

He said death by firing squad was inhumane because the men would suffer for at least two minutes before dying, which he called "torture".

However Indonesian law insists capital punishment be carried out by a firing squad.

Read full article here. [Brooks Holland]

Execution by Military Is Approved by President

WASHINGTON — President Bush on Monday approved the first execution by the military since 1961, upholding the death penalty of an Army private convicted of a series of rapes and murders more than two decades ago.

As commander in chief, the president has the final authority to approve capital punishment under the Uniform Code of Military Justice, and he did so on Monday morning in the case of Pvt. Ronald A. Gray, convicted by court-martial for two killings and an attempted murder at Fort Bragg, N.C., the White House said in a statement.

Although the Supreme Court upheld the constitutionality of the death penalty in the military in 1996, no one has been executed since President Ronald Reagan reinstated capital punishment in 1984 for military crimes.

The last military execution was ordered by President Dwight D. Eisenhower in 1957, although it was not carried out by hanging until 1961. President John F. Kennedy was the last president to face the question, in 1962, but commuted the sentence to life in prison.

“While approving a sentence of death for a member of our armed services is a serious and difficult decision for a commander in chief, the president believes the facts of this case leave no doubt that the sentence is just and warranted,” the White House press secretary, Dana Perino, said in a statement after the decision was first reported by The Associated Press. “Private Gray was convicted of committing brutal crimes, including two murders, an attempted murder and three rapes.”

Mr. Bush, a supporter of the death penalty, approved the sentence after Private Gray’s case wound its way through the Army’s legal bureaucracy and the military’s courts of appeal. The secretary of the Army sought Mr. Bush’s final approval.

There are six people on the military’s death row at Fort Leavenworth, Kan. but Private Gray was the first whose sentence went to the president. Unlike in the civilian courts, where the president can overturn or commute a sentence, in the military system, he is required effectively to approve it.

It can still be appealed, which the White House suggested was all but certain, meaning an execution is not expected to occur soon, possibly not during Mr. Bush’s remaining months in office. [Mark Godsey]

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Prisoners' time spent on death row doubles

The time prisoners spend on death row has nearly doubled during the past two decades. Legal experts predict it will rise further as states review execution procedures and prisoners pursue lengthy appeals. Waits rose from seven years in 1986 to 12 years in 2006, the latest Justice Department statistics show. In all five states with the most prisoners on death row — California, Florida, Texas, Pennsylvania and Alabama — offenders spend more time in prison than they did four years ago, a USA TODAY survey of state records through 2007 found.

In California, wait times average nearly 20 years, a state commission report in June says. It costs about $90,000 more per year to house a death row inmate than other inmates.

In April, the U.S. Supreme Court upheld Kentucky's lethal injection method, ending an informal halt to executions nationwide for seven months. Of the 10 states with the most prisoners on death row, five launched their own reviews of lethal injection procedures in the past two years. Those resulted in suspensions or delays in executions.

Fordham University law professor Deborah Denno says lethal injection challenges create a "snowball effect" that prolong death row waits. [Mark Godsey]

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Spying uncovered Documents show state police monitored peace and anti-death penalty groups

Undercover Maryland State Police officers repeatedly spied on peace activists and anti-death penalty groups in recent years and entered the names of some in a law-enforcement database of people thought to be terrorists or drug traffickers, newly released documents show.

The files, made public yesterday by the American Civil Liberties Union of Maryland, depict a pattern of infiltration of the activists' organizations in 2005 and 2006. The activists contend that the authorities were trying to determine whether they posed a security threat to the United States. But none of the 43 pages of summaries and computer logs - some with agents' names and whole paragraphs blacked out - mention criminal or even potentially criminal acts, the legal standard for initiating such surveillance.

State police officials said they did not curtail the protesters' freedoms.

The spying, detailed in logs of at least 288 hours of surveillance over a 14-month period, recalls similar infiltration by FBI agents of civil rights and anti-war groups decades ago, particularly under the administration of President Richard M. Nixon.
David Rocah, a staff attorney for the ACLU in Baltimore, said at a news conference yesterday that he found it "stupefying" that more than 30 years later, the government is still targeting people who do nothing more than express dissent.

"Everything noted in these logs is a lawful, First Amendment activity," Rocah said. "For undercover police officers to spend hundreds of hours entering information about lawful political protest activities into a criminal database is an unconscionable waste of taxpayer dollars and does nothing to make us safer from actual terrorists or drug dealers."

The ACLU obtained the documents from the state attorney general's office through a Maryland Public Information Act lawsuit.

Col. Terrence B. Sheridan, superintendent of the Maryland State Police, said in a statement yesterday that the department "does not inappropriately curtail the expression or demonstration of the civil liberties of protesters or organizations acting lawfully."

"No illegal actions by state police have ever been taken against any citizens or groups who have exercised their right to free speech and assembly in a lawful manner," Sheridan said. "Only when information regarding criminal activity is alleged will police continue to investigate leads to ensure the public safety." [Mark Godsey]

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As California looks to expand death row, a flap over where to build it

                          

San Quentin, Calif. - If Methodist pastor Liza Klein had her way, no one would be executed in the US again. But for the moment, she has another goal: keeping California's death row in her own backyard.

Despite the estimated $400 million price tag for its expansion, Ms. Klein and other death-penalty opponents want the death row to stay at San Quentin State Prison because its location next to San Francisco provides easier access to lawyers, family members, and activists.

"Even if we have the death penalty, we can stand up for some form of humane treatment for these people," says Klein, who lives in Marin County, one of the most liberal counties in the country.

Local politicians see things differently. They're pushing Gov. Arnold Schwarzenegger (R) to move at least some of the death-row prisoners away from the county, perhaps to desert prisons that are hours from the state's largest cities.

The debate is pitting liberals against liberals and shining a light on California's hundreds of death-row inmates, who are more likely to die of natural causes than face the gas chamber or lethal injection.

San Quentin Prison, built in 1852, sits on the water just north of San Francisco, about 20 minutes by car from the Golden Gate Bridge. Currently, 635 men await execution behind the Gothic turrets of the prison's castle-like buildings.

"Even if we have the death penalty, we can stand up for some form of humane treatment for these people," says Klein, who lives in Marin County, one of the most liberal counties in the country.

Local politicians see things differently. They're pushing Gov. Arnold Schwarzenegger (R) to move at least some of the death-row prisoners away from the county, perhaps to desert prisons that are hours from the state's largest cities.

The debate is pitting liberals against liberals and shining a light on California's hundreds of death-row inmates, who are more likely to die of natural causes than face the gas chamber or lethal injection.

San Quentin Prison, built in 1852, sits on the water just north of San Francisco, about 20 minutes by car from the Golden Gate Bridge. Currently, 635 men await execution behind the Gothic turrets of the prison's castle-like buildings. [Mark Godsey]

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Reaching out from death row

SAN FRANCISCO -- -- From the forbidding, steely confines of San Quentin Prison's death row, scores of California's most notorious convicts have been reaching out to the free world via the Internet.

Scott Peterson's Web page features smiling photos of himself with his wife Laci, whom he was found guilty of murdering and dumping into San Francisco Bay while she was pregnant with their unborn son. It also links viewers to his family's support site, where Peterson has a recent blog posting on his "wrongful conviction."

Mustachioed Randy Kraft, condemned Orange County slayer of 16 young men, is looking for pen pals. So is convicted Northern California serial killer Charles Ng, who describes himself as shy and offers to sell his wildlife drawings.

Tattooed and muscled Richard Allen Davis, whose abduction and murder of 12-year-old Polly Klaas helped trigger California's "three strikes" law, is not selling his hobby crafts but wants correspondents.

"I dug my grave -- now I must lay in it," he says of his life.

Prisoners are barred from direct computer access that officials say could allow them to threaten witnesses or orchestrate crimes. Thanks to supporters and commercial services, however, many of the state's 673 condemned inmates now have pen-pal postings and personalized Web pages with their writings, artwork and photos of themselves -- often accompanied by declarations of innocence and pleas for friendship and funds.

Although some inmates utilize sites in the U.S., the nonprofit Canadian Coalition Against the Death Penalty has created Web pages or pen-pal ads for more than 100 California death row inmates. The site, unlike some others, is free. [Mark Godsey]

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In Court Ruling on Executions, a Factual Flaw

WASHINGTON — When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either. This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied. It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.

The provision was the subject of a post over the weekend on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals. [Mark Godsey]

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Florida reinstituted the death penalty: State executes child killer

STARKE — Florida reinstituted the death penalty Tuesday with the execution of a child killer. Unlike a botched execution in 2006 that halted the state's death penalty for more than a year, the execution of Mark Dean Schwab appeared seamless and peaceful. Schwab, 39, made no final statement and stopped moving only two or three minutes after chemicals began flowing into his veins.

He was pronounced dead 13 minutes after the death chamber's curtain rolled open.

"That was the most peaceful passing I've ever been to, and I wish I could know that my son passed as peacefully," said Vickie Rios-Martinez, the mother of Schwab's victim, Junny Rios-Martinez.

Schwab abducted, raped and murdered 11-year-old Junny in 1991 after seeing his picture in a newspaper. Schwab posed as his father and lured him to a ball field.

Florida halted executions after the Dec. 13, 2006, death of Angel Diaz. Corrections officials mistakenly poked needles through Diaz's veins, causing the chemicals to splash into his flesh. Diaz took 34 minutes to die, and some observers said he appeared in pain. An autopsy found footlong chemical burns on his arms.

Then-Gov. Jeb Bush convened a panel to study lethal injection procedures. The Florida Department of Corrections adopted 37 changes in protocol recommended by the panel. [Mark Godsey]

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Panel finds California death penalty flawed, urges overhaul

Capital punishment in California is too flawed to be effective and is crippled by an appeals backlog that delays punishment for crimes, a state Senate- appointed panel has concluded.

The California Commission on the Fair Administration of Justice issued an in-depth report on the death penalty Monday, the first official review of the practice since it was reinstated in 1978.

The state's death-penalty system must undergo a multimillion-dollar upgrade – an investment that voters must weigh in on – to lessen the nation's longest time between conviction and execution, the panel said.

"We've got to insist on these resources if we want a credible death penalty," said former Attorney General John Van de Kamp, commission chairman.

Alternatives the commission offered were to narrow the field of defendants eligible for the death penalty or to abolish it. Both measures would ignite controversy, Van de Kamp said, but would potentially save rather than cost money.

Keeping someone on death row costs $92,000 annually above the cost of a year at a maximum-security state prison, the commission found. The cost of appeals can be three times the cost of the original trial.

The need for reform is clear, commissioners said.

At least 70 percent of death-row judgments that are appealed to the state high court result in new hearings, with ineffective counsel the typical reason, said Gerald F. Uelmen, a law professor who publishes an annual survey of the state Supreme Court. [Mark Godsey]

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SCOTUS Issues Landmark Opinion

upholding death penalty as "totally badass."  Hilarious video from the Onion here.

Politicians Respond to Kennedy

Angry politicians vowed to keep writing laws that condemn child rapists to death, despite a Supreme Court decision saying such punishment is unconstitutional.

"Anybody in the country who cares about children should be outraged that we have a Supreme Court that would issue a decision like this," said Alabama Attorney General Troy King, a Republican. The justices, he said, are "creating a situation where the country is a less safe place to grow up."

The court's 5-4 decision Wednesday derailed the efforts of nearly a dozen states supporting the right to kill those convicted of raping a child and said execution was confined to attacks that take a life and to other crimes including treason and espionage.

At issue before the high court was a Louisiana case involving Patrick Kennedy, sentenced to die for raping his 8-year-old daughter in her bed, an assault so severe she required surgery.

In his majority opinion, Justice Anthony Kennedy wrote that "the death penalty is not a proportional punishment for the rape of a child," despite the horrendous nature of the crime.

Republican Louisiana Gov. Bobby Jindal called the ruling "incredibly absurd" and "a clear abuse of judicial authority" and said officials will "evaluate ways to amend our statute to maintain death as a penalty for this horrific crime."

Oklahoma officials said they, too, weren't ready to give up and would "certainly look at what options we have," state Sen. Jay Paul Gumm said. "I think the people of Oklahoma have spoken loudly that this is one of the most heinous of crimes."

Even White House hopefuls joined the fray.

Republican Sen. John McCain called the ruling "an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime." Democratic Sen. Barack Obama said there should be no blanket prohibition of the death penalty for the rape of children if states want to apply it in those cases.

Continue reading article here. [Brooks Holland]

Supreme Court Rejects Death Penalty for Child Rape

The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony M. Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty.

Justice Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment’s ban on cruel and unusual punishment, which draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.”

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint,” Justice Kennedy wrote.

The relatively small number of states that allow the death penalty for the rape of a child demonstrates a “national consensus” against it, Justice Kennedy wrote. Moreover, he wrote, sentencing someone to death for raping a child could have terrible, unintended consequences, given the years that typically go by between a crime and the execution of the defendant.

“Society’s desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice,” Justice Kennedy wrote.

The dissenters were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., generally regarded as the conservative wing of the tribunal.

Continue reading article here. [Brooks Holland]