Civil Rights Law & Policy Blog

Without court intervention, Texas man will be executed even though he has killed no one

James Lee Wood is scheduled to be executed on August 26 of this year. He has not killed anybody, and nobody disputes that fact. Rather, as set out below, Wood was convicted under a controversial Texas law that allows for trying someone who did not kill anybody with capital murder 1) if he was involved in a plan to commit a crime; and, 2) if he should have realized that the crime would in fact be carried out. The Washington Post's Kristine Guerra explains:

Wood was convicted and sentenced to death under what’s called the law of parties, which has been in effect in Texas since the 1970s. It states that a person who “solicits, encourages, directs, aids, or attempts to aid the other person to commit an offense” is also criminally liable for that offense.

 

Under the law, prosecutors are not required to prove that a defendant had any part in committing a crime, or even intended to commit it. Jurors only need to find that there was a plan to commit a crime and that the defendant should have anticipated that the crime would occur...

 

Executions of people who did not directly kill the victim are extremely rare: The Death Penalty Information Center lists just 10 such instances that didn’t involve contract killings. Half were in Texas under the law of parties.

 

In recent years, there have been efforts to reform Texas law so that someone who didn’t kill won’t be executed. So far, those efforts have failed.

 

Last year, state Rep. Harold Dutton, a Democrat from Houston, introduced a bill that would ban the death penalty in law of parties cases. The bill, however, did not get a vote on the floor.

 

Tim Cole, a former Texas prosecutor and defense attorney, said the law of parties erases the distinction between an accomplice and someone who pulled the trigger.

 

“The legal argument is that, obviously, if you look at moral culpability in terms of who’s most culpable, it’s the person who actually committed the crime,” Cole told The Post. “In most circumstances, most people would think the other person who pulls the trigger should be subject to a higher level of punishment than the other person.”

 

Cole echoes what the U.S. Supreme Court has said in the past.

 

In a 1982 case involving the robbery and murder of an elderly Florida couple, the high court threw out the death-penalty sentence of a man who was in a getaway car when the killings happened. Someone who participated in the robbery shouldn’t be treated the same as the person who committed the killings, the court said.

 

But there are exceptions, Cole said. One example is a murder-for-hire case in which the triggerman was following orders from someone else.

The 1996 killing of convenience store clerk in Kerrville, Texas for which Wood was convicted and sentence to death was not a murder-for-hire scheme. Rather, according to testimony by his then-girlfriend, Wood tried to prevent any violence from happening.

To be clear, Wood is not arguing his innocence. He did agree to help Daniel Reneau rob a convenience store safe. He was an accomplice to the crime; he drove Reneau to the crime scene. However, before committing the crime, Wood apparently pleaded with Reneau to leave the .22-caliber handgun Reneau had with him behind. Without Wood's knowledge, Reneau brought it anyway. He later shot the clerk while Wood waited for him in the car.

In a writ of habeus corpus recently filed by his attorneys with the Texas Supreme Court, Wood now claims that he could not have anticipated Reneau's true intentions. According to Guerra's report, Wood "is borderline mentally disabled with an IQ of 80." Coupled with his emotional immaturity, he was susceptible to manipulation. Put simply, when Reneau relinquished to his request not to bring the gun, Wood did not have the intellectual capacity to understand that Reneau might be lying to him. 

Wood also claims that the psychiatrist for the prosecution at his trial--who, it should be added, never met with Wood--gave false and misleading statements about the likelihood that Wood would commit future violent acts. And, this psychiatrist reportedly has a reputation. Because of his penchant for testifying for the prosecution in death penalty cases, this particular psychiatrist carries the nickname "Dr. Death." Also, as Guerra notes: 

In 1995, three years before Wood’s trial, [James] Grigson was expelled from the American Psychiatric Association and its Texas branch at that time, the Texas Society of Psychiatric Physicians, for predicting a defendant’s potential threat to society based solely on a hypothetical. The expulsions followed an investigation by the Texas association’s ethics committee, which cited Grigson’s “willfully narrow rendition of psychiatric knowledge.”

 

In a profile published after Grigson’s death in 2004, the Houston Chronicle cited his unusual willingness to testify against capital murder defendants. A former prosecutor who used Grigson in several trials told the newspaper that he was an “outstanding communicator who really connected with a jury.”

 

But the psychiatric association saw Grigson as a threat to the profession.

Reneau was executed in 2002. Wood now argues that the death penalty should be reserved for the worst of the worst, and that someone who has not actually killed anybody is not that--he's different from Reneau. However, unless the Texas Supreme Court intervenes, he will meet the same fate.  

Should colleges and universities be prohibited from asking applicants about criminal backgrounds?

This question was inspired by this Atlantic article by Juleyka Lantigua-Williams, titled When a Classmate Is a Former Inmate, discussing how institutions of higher learning have created barriers to education for people with criminal backgrounds. While administrators' concern for their campuses' safety is commendable, some university policies do not appear to serve the purpose for which they were intended--and, in fact, may not even address an actual threat.

Lantigua-Williams writes:

These days, American colleges are eager to boast about their number of women enrollees, their percentage of ethnic minorities, even their ratio of low-income students. They’re very proud of their inclusiveness and outreach. But many colleges are mum when it comes to the students on their campuses with criminal records.

 

To be fair, it’s a very delicate issue, one that requires reassuring students and parents that safety has not been compromised while also ensuring that some students with records are not singled out or treated differently. Finding that balance has proved elusive for some colleges, but others have successfully untangled the complexities created by this increasingly common phenomenon. At hundreds of colleges, students have to disclose any criminal history during the admissions process and may be prescreened by a special committee... At some schools, a formerly incarcerated student’s movements on campus and his or her access to facilities may be restricted. At a number of colleges and universities, students who have committed certain crimes may be jointly monitored by campus authorities and state officials. The measures are set up based on state requirements, school policy, and the institution’s comfort level.

 

But, in some instances, there are situations that are entirely out of a school’s control. Students with criminal records who want to apply for certain professional programs often hit dead-ends. “People are not rejected solely based on having a criminal record but can end up being excluded from certain academic programs that do not allow those with criminal histories to work in the field,” said Jason Ebbeling, executive director of the Student Success Center at Connecticut State Colleges & Universities. Due to licensure requirements or clinical-rotation guidelines, future teachers, nurses, and others who might work in sensitive areas are not allowed to have past criminal histories.

 

“Why is someone in a classroom with a record more dangerous than someone sitting next to me in a movie theater or a restaurant?” asked Barmak Nassirian during my conversation with him. Nassirian has worked in higher education for 25 years and is the director of policy analysis at the American Association of State Colleges and Universities. “People do have a responsibility for maintaining safe campuses, I don’t dismiss that.” But he fervently opposes asking students to divulge the information, considering it as part of admissions, and subsequently monitoring students once on campus. “We essentially condemn people to a life of underemployment and poverty if we deny them the one medicine that actually cures criminal behavior: education.”...

 

College administrators, according to several of the experts I spoke to, try to put in place as many mechanisms and safety precautions as possible to reinforce how safe their campuses are, especially for the peace of mind of prospective families. And yet, there are no statistically valid relationships between asking about criminal histories, the ratio of such students on campus, and the incidences of campus crime. One glaring example of this is sexual assault, one of the most common campus crimes...

 

Educators want to welcome and serve qualified students. But they are also charged with maintaining safe and conducive atmospheres for learning. And so, for the student with a criminal background who wants an education, it can seem like there is no easy way around having a record—stigmatization now or dismissal later.

Missouri must release names of providers of lethal injection drugs, court says

The Guardian's Ed Pilkington reports that a local Missouri judge has ordered the state to disclose the names of two pharmacies that provided it with lethal injection drugs. The article states in part:

The judge ruled that the pharmacies involved could not be counted as part of the execution team, and thus offered protection from identification, and that as a result the state had to divulge the details of how it obtained pentobarbital for use in the death chamber...

 

The Guardian, joined by the Associated Press and three prominent local news organizations – the Kansas City Star, the St Louis Post-Dispatch and the Springfield News-Leader – held that it was in the public interest that citizens were aware of how the ultimate punishment was being wielded in their name.

 

Judge Jon Beetem excoriated the department of corrections for refusing to hand over to the media plaintiffs key documents that identified the pharmacists involved.

 

The judge ruled that the DOC had “knowingly violated the sunshine law by refusing to disclose records that would reveal the suppliers of lethal injection drugs, because its refusal was based on an interpretation of Missouri statutes that was clearly contrary to law”...

 

Since the Guardian’s litigation was first lodged, 13 inmates have been put to death by Missouri – going to their deaths without them or the public having any idea of where the drugs used to kill them came from, nor of their quality.

 

All that was known was that the pentobarbital probably originated a compounding pharmacy, an outlet that makes up small batches of the drug to order, normally for cosmetic purposes.

 

Along with most other active death penalty states, Missouri has increasingly wrapped itself in secrecy in an attempt to get around a powerful European-led boycott that has blocked trade in lethal injection drugs to US prison departments on ethical grounds.

 

In order to circumvent the stranglehold, states have taken to hiding the identity of pharmacists and medical laboratories involved in selling and testing the drugs for use in executions.

 

As the boycott tightened, death penalty states turned to ever more extreme – and in some cases bizarre – supply routes. Last year, BuzzFeed tracked down one such illegal supply line to an office complex in Kolkata, India.

 

The danger of carrying out the death penalty while withholding from the public the nature and the source of the drugs used was underlined by a succession of botched executions in which gruesome scenes were witnessed on the gurney.

The judge's opinion is available here.

Virginia governor extends right to vote to former felons

Virginia Governor Terry McAuliffe (D) issued an executive order today extending the right to vote to felons who have completed their sentences and parole or probation, as The NYTimes's Sheryl Gay Stolberg and Erik Eckholm report here. The entire article is worth reading, but here are a few excerpts:

The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.

 

Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons...

 

Friday’s shift in Virginia is part of a national trend toward restoring voter rights to felons, based in part on the hope that it will aid former prisoners’ re-entry into society. Over the last two decades about 20 states have acted to ease their restrictions, according to the Brennan Center for Justice at New York University.

 

Only two states — Maine and Vermont — have no voting restrictions on felons.

 

Virginia has been one of four states — the others are Kentucky, Florida and Iowa — that impose the harshest restrictions, a lifetime ban on voting for felons. The Sentencing Project says one in five African-Americans in Virginia cannot vote...

 

Prof. A. E. Dick Howard of the University of Virginia School of Law, the principal draftsman of a revised Constitution adopted by Virginia in 1971, agreed, and said the governor had “ample authority.” But Professor Howard, who advised Mr. McAuliffe on the issue, said the move might well be challenged in court. The most likely argument, he said, is that the governor cannot restore voting rights to an entire class of people all at once...

 

The governor’s action Friday will not apply to felons released in the future; his aides say Mr. McAuliffe intends to issue similar orders on a monthly basis to cover people as they are released.

New York agrees to changes to state's solitary confinement practices

The Atlantic's Matt Ford explains:

New York will enact major changes to its use of solitary confinement in prisons as part of a settlement with the New York Civil Liberties Union, the state announced Wednesday. The announcement from one of the nation’s largest prison systems caps the most successful year yet for solitary-reform advocates.

 

Under the agreement, about one-quarter of the state’s 4,000 prisoners in solitary confinement will be placed in less isolated housing. New York will also reduce the use of solitary for future inmates by limiting both the reasons they can be placed in it and the time they spend in it. Some of solitary confinement’s more troubling aspects will also be curtailed: Prison officials will no longer be allowed to use food as punishment, and pregnant inmates won’t be placed in solitary “except in exceptional circumstances.”

 

The agreement, which will needs approval from a federal judge before it goes into effect, was reached after two years of negotiations following a NYCLU lawsuit.

Read the full article here.

"We simply are not charging people with the death penalty like we once did...''

...according to one expert interviewed by The Cleveland Plain Dealer for this report on prosecutors seemingly diminished interest in pursuing the death penalty. The report begins: 

Prosecutors across Ohio are changing the way they charge suspected killers. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.

 

The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.

 

During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.

 

The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.

SCOTUS stays Missouri execution pending lower court decision

Ernest Lee Johnson killed three people with a claw hammer in 1994, and he was sentenced to death for it. Since then, however, he has had surgery to remove a tumor on his brain. He now argues that lethal injection could cause him to suffer seizures; thus, his execution would violate his constitutional right not to be cruelly or unusually punished.

A federal district court dismissed Johnson's argument. Yesterday, SCOTUS determined that the execution must wait for the Eighth Circuit to decide whether that dismissal was proper.

See WaPo's report here.

"Temporal Arbitrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial"

The title of this post comes from this forthcoming essay by Professor Mary Kelly Tate, the abstract of which states:

This essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration and indeed, its crumbling legitimacy.

Ready. Aim. Fire.

Yesterday, Utah governor Gary Herbert signed into law a bill providing for state executions by firing squad. As AP reports:

Utah lawmakers say they took a pragmatic approach in approving the firing squad as a form of execution if lethal-injection drugs aren't available.

 

Their thinking: Develop a backup plan in case a nationwide lethal-drug shortage persists.

 

But critics say bringing back the firing squad in Utah - the only state to use the method in the past 40 years - could tarnish the state's image with visitors.

"Guilty, Then Proven Innocent"

The Atlantic's Matt Ford posted this compelling piece earlier today, which begins:

Joseph Sledge’s timing could not have been worse. While serving a four-year sentence for stealing t-shirts in 1976, the 36-year-old man from Georgia escaped from a prison work farm in eastern North Carolina. That same day, Josephine Davis and her daughter Ailene were brutally murdered in their farmhouse in nearby Bladen County. Sledge immediately became the prime suspect and was charged with their murders upon his re-capture.

 

The case against Sledge was weak. None of the fingerprints at the scene matched his own. The only physical evidence linking him to the crime was pubic hair “of Negroid origin” found on one victim’s body. An FBI microscopic analysis said they resembled Sledge’s hairs, but cautioned that this did not “constitute a basis for positive personal identification.” No eyewitnesses to the crime could be found, but two jailhouse informants testified that Sledge had confessed to killing two white “she-devils” to them. Sledge, who always maintained his innocence, received a life sentence in 1978.

 

His lawyers tried to fight the conviction, but hit a dead end in the appeals courts. In 2012, a county clerk discovered an envelope in the archives containing hairs from the crime scene, long presumed lost. A private lab tested mitochondrial DNA samples from the hairs and ruled out any connection to Sledge. Investigators with the North Carolina Innocence Inquiry Commission, a state agency devoted to investigating wrongful convictions, then interviewed the only surviving jailhouse informant. He recanted his testimony. The commission’s eight members voted unanimously last December to refer Sledge’s case to a special tribunal for exoneration. On January 23, the three judges unanimously ruled that Sledge had been wrongly convicted and ordered his release. He spent almost four decades behind bars for a crime he didn’t commit.

 

In 49 other states, Joseph Sledge would still be in prison.

"Dividing Crime, Multiplying Punishments"

The title of this post comes from this paper by Professor John Stinneford, the abstract of which states:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. 

This article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment. A punishment was deemed excessive under the Cruel and Unusual Punishments Clause if it was greater than an offender’s retributive desert, as measured against longstanding punishment practice. Prior to the Twentieth Century, if prosecutors proposed a novel unit of prosecution for a given crime, courts asked two questions: (1) Does this unit of prosecution give the government the opportunity to bring multiple charges based on a single course of conduct? (2) If so, would the bringing of multiple charges create an arbitrary relationship between the offender’s culpability and his cumulative punishment, measured in light of prior punishment practice? Courts employed this analysis whether the unit of prosecution was challenged under the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, or the rule of strict construction of penal statutes (the forerunner to today’s rule of lenity). By recovering this methodology for addressing prosecutorial efforts to divide crime and multiply punishments, we can ameliorate our current mass incarceration crisis and make the American criminal justice system more just.

"Death, Desuetude, and Original Meaning"

The title of this post comes from this paper by Professor John Stinneford, the abstract of which states:

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"

The title of this post comes from this recent paper by Professor Adam Lamparello, the abstract of which states:

Welcome: We’re Glad Georgia is On Your Mind. 

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair. 

Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled. 

Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.

States executing fewer inmates each year as result of SCOTUS rulings, limited access to lethal injections drugs

The Atlantic's Matt Ford observes that the number of executions in the U.S. each year has steadily decreased over the last decade and half or so. Even Texas -- with its perceived affinity for executions -- is killing convicts less and less. While it executed 40 people in 2000, this year it'll execute only 10. Ford explains:

Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application. The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana... This resulted in fewer cases with which the death penalty could be applied, while also imposing new legal hurdles before it could be carried out.

 

But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment...At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole...

Nowadays states also have less access to lethal injection drugs. Foreign drug manufactures withdrew their drugs from the market, and there are few local suppliers to replace them.

A few related posts:

• SCOTUS stays Missouri execution pending resolution of ineffective counsel allegations
• Oklahoma's botched execution amounted to "medical experimentation" and torture, says inmate's family
• NYTimes editorial board continues its call to end death penalty
• Another botched execution adds to death penalty debate
• Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'

[h/t Doug Berman]

WaPo editorial board calls on Maryland legislature to limit use of solitary confinement in state's prisons

WaPo's editorial board notes that 8% of state's prison population is held in solitary confinement, and that inmates are typically sent there for failing to follow rules. The board questions whether current policy is required to reduce the risk of violence, as some supporters say, and it doubts whether inmates commonly have cellmates. Instead, it recalls one mentally ill inmate who allegedly spent four years in solitary, and argues:

Weeks, months and years of solitary confinement can destroy people’s minds. Stories of healthy inmates leaving solitary with a mental illness are horrible but unsurprising. So are accounts of inmates who enter it with a mental illness and come out worse — if they don’t commit suicide, a particular problem in isolation programs.

 

Isolation can seem like an easy solution for dealing with a violent or antisocial inmate, but it can be expensive and counterproductive, deepening the psychosis that led to bad behavior. The internal report found that isolated prisoners in Maryland face “heightened risk for worsening physical and mental health outcomes.”

Sadly, the state's general assembly hasn't been any help so far:

[W]e published a letter from Susan Kerin of Interfaith Action for Human Rights noting that Maryland lawmakers recently scuttled a bill calling for an independent analysis of the state’s use of prisoner segregation. The bill merely asked for a report on living conditions and the frequency with which state facilities isolate prisoners. It sought recommendations on how to reduce the number of prisoners in isolation, how to improve conditions and how to manage juveniles and the mentally ill. All of these goals should be priorities for any state that claims to run a humane prison system.

SCOTUS stays Missouri execution pending resolution of ineffective counsel allegations

The inmate is 35-year-old Mark Christesen. He was convicted for the 1998 murders of 36-year-old Susan Brouk and her two children near Vichy, a small central-Missouri town about two hours southeast of St. Louis. The AP reports: 

The appeal to the Supreme Court raised several concerns about legal counsel Christeson has received over the years, including the failure of some of his attorneys to meet a 2005 deadline to file for an appeal hearing before a federal court. It is uncommon for someone to be executed without a federal court appeal hearing.

 

The high court denied a second appeal challenging the state's planned use of a made-to-order execution drug produced by an unidentified compounding pharmacy.

"Prop. 47: A simple step toward reducing mass incarceration"

This recent post by Professor Jonathan Simon at The Berkeley Blog explains the societal and institutional importance of California's Proposition 47, which will appear on the ballot this November. Simon begins:

California Proposition 47...would change the legal classification of many “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors (read the details on ballotpedia.org here.)

 

This simple change has important consequences. A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail. If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.

 

Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced “unless court finds unreasonable public safety risk,” a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.

 

The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.

 

Opponents, most of the state’s District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).

 

But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment. 

Off the Cuff: Criminal Justice Community Teach-In & Roundtable

...this Saturday, Oct. 25 @ 9 a.m. at East L.A. College. The event is free and open to the public, and among the planned topics for discussion is the need for civilian oversight of L.A. County jails.  As ACLU's Mark-Anthony Johnson explains, the new year likely will bring a fresh opportunity to institute this needed change. Register here.

California prisons will no longer segregate inmates based on race following violence

...reports the AP:

Instead, officers can lock down every inmate in an affected area, or individual inmates suspected of being involved in the incident or the gangs that were involved.

 

The Department of Corrections and Rehabilitation also agreed to provide inmates with opportunities for outdoor exercise any time a lockdown lasts longer than 14 days.

 

The agreement with attorneys representing inmates came after the U.S. Justice Department said in a non-binding court filing last year that the old policy violated the 14th Amendment that requires equal protection under the law.

 

Justice officials said that policy was based on generalized fears of racial violence and affected inmates who have no gang ties or history of violence.

 

State officials did not acknowledge any violation of inmates' constitutional rights as part of the agreement.

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. 

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.

 

"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.

"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. 

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

The Clarion Ledger's Jerry Mitchell reports...

"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.

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

...CNS's Denise McAllister reports.

"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.

"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.

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.

"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.

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.

“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. 

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."

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:

• Talk of fed judge's decision declaring CA death penalty unconstitutional
• Nothing like the smell of gunpowder in the morning
• Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
• Missouri inmate seeks halt to his upcoming execution
• "Oklahoma attorney general agrees to 6-month stay of execution after botched lethal injection"

John Oliver's delightful exposition of dispiriting criminal justice system

Making us laugh while we cry.

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

Professor Doug Berman has the links at Sentencing Law and Policy.

Here are a couple additions:

• Hit & Run's Scott Shackford, California’s Death Penalty Struck Down as Unconstitutional for Not Actually Killing People.
• WSJ Law Blog's Ashby Jones, Federal Judge Deems California’s Death Penalty Unconstitutional.

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: 

State 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:

• Missouri inmate seeks halt to his upcoming execution
• Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment

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.

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:

• "Missouri executes inmate after Supreme Court turns down stay request"
• Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs
• Judge blocks Missouri's access to execution drug
• Union requests changes to Texas's solitary confinement policy for death row inmates
• When victims' families defend defendants against capital punishment

"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.

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 drug 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.

"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.

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:

• They 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."

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:

The 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:

• Judge blocks Missouri's access to execution drug
• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• Ohio delays execution as inmate seeks to donate organs
• Attorney: Ohio execution changes not acceptable

"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:

 

The 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.

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.

Naturally, 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)

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:

• Union requests changes to Texas's solitary confinement policy for death row inmates
• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• South Carolina Is Still Defending Its Neglectful Prisons

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.

In 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:

• When victims' families defend defendants against capital punishment
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• South Carolina Is Still Defending Its Neglectful Prisons

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 defendant. 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:

• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• South Carolina Is Still Defending Its Neglectful Prisons
• There's an alarming number of deaths in US jails

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.