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New Hampshire Senate Passes Death-Penalty Repeal With Veto-Proof Majority

Posted: April 12, 2019

In a vote death-penalty opponents praised as “historic,” a veto-proof supermajority of the New Hampshire legislature gave final approval to a bill that would repeal the state’s death penalty statute. By a vote of 17-6, the senators voted on April 11, 2019 to end capital prosecutions in the Granite State, exceeding the two-thirds majority necessary to override an anticipated veto by Governor Chris Sununu. In March, the state House of Representatives passed the same abolition bill, HB 455, by a veto-proof 279-88 supermajority. For the second consecutive year, the bill received bipartisan support, including sponsorship by seven Democratic and six Republican sponsors across both legislative houses. Twelve Democratic and five Republican senators voted in favor of repeal. An identical bill to repeal the death penalty passed the legislature in 2018, but was vetoed by Gov. Chris Sununu, and an attempt to override the veto fell two votes short in the Senate.

The Governor’s office issued a statement after the vote saying that Sununu “continues to stand with crime victims, members of the law enforcement community, and advocates for justice in opposing a repeal of the death penalty.” Repeal advocates quickly responded to that claim, noting that numerous retired prosecutors, members of law enforcement, and relatives of murder victims had testified in favor of repeal. Rep. Renny Cushing (D – Rockingham), whose father and brother-in-law were murdered in two separate incidents, was one of the leading proponents of the bill. Cushing has described the death penalty as a “ritualized killing” that does nothing to compensate for a victim’s family’s loss. “The governor has positioned himself as saying he’s vetoing the repeal of the death penalty because he cares about law enforcement and victims, but he’s refused to meet with murder victims’ family members who oppose the death penalty,” Cushing said. Sen. Ruth Ward (R – Stoddard), whose father was killed when she was 7 years old, spoke briefly before casting her vote: “He never saw us grow up. My mother forgave whoever it was, and I will vote in favor of this bill,” she said.

During the Senate debate, senators mentioned costs, racial inequities, and wrongful convictions among their reasons for supporting repeal. Senator John Reagan (R – Deerfield), a Republican who voted in favor of repeal, told The New York Times that he doesn’t trust the government with capital punishment. "The more and more experience I had with government, I concluded that the general incompetency of government didn’t make them the right people to decide life and death,” he said. The New Hampshire legislative vote reflects emerging bipartisanship in state legislative efforts to repeal the death penalty. “The vote to end New Hampshire’s death penalty included many conservative Republican lawmakers,” said Hannah Cox, national manager of Conservatives Concerned About the Death Penalty. “They join a growing number of GOP state legislators around the country who feel strongly that capital punishment does not comport with their conservative beliefs, such as limited government, fiscal responsibility, and valuing life.” Republican-backed bills to abolish the death penalty or limit its use have been introduced in a number of states this year, including Georgia, Kansas, Kentucky, Louisiana, and Wyoming.

The New Hampshire repeal bill applies only to future crimes, and does not address the fate of Michael Addison, the only person on New Hampshire’s death row. No one has been executed in New Hampshire since 1939. If the bill becomes law, New Hampshire will be the 21st state to abolish capital punishment and the ninth in the past 15 years.

 

Missouri Supreme Court Grants New Sentencing Trial to Man Who Was Sentenced to Death Despite 11 Jurors' Votes for Life

Posted: April 11, 2019

The Missouri Supreme Court has ordered a new sentencing trial for Marvin D. Rice (pictured), a former sheriff’s deputy whose trial judge sentenced him to death despite the votes of 11 of his 12 jurors to sentence him to life. On April 2, 2019, the court vacated the death sentence imposed by St. Charles County Judge Kelly Wayne Parker in 2017 under the state’s controversial “hung jury” sentencing provision. Under that law, the trial judge has authority to independently evaluate the evidence and determine the sentence to be imposed whenever the jury vote for life or death is not unanimous. Rice, a former Dent County deputy sheriff and state correctional officer, was charged with murdering his ex-girlfriend, Annette Durham, during a custody dispute over their son and killing her boyfriend, Steven Strotkamp. The jury convicted Rice of capital murder for killing Durham but was deemed hung when a single juror held out for death. It convicted him of second-degree murder in Strotkamp’s death and agreed to a life sentence for that murder. Parker disregarded the jury’s vote and imposed the death penalty for Durham’s murder.

No state in the United States authorizes a judge to override a jury's recommendation of a life sentence and all three states that previously permitted the practice ended it in the past three years. Missouri law, however, considers a non-unanimous vote a nullity rather than a recommendation, entrusting the sentencing decision to the judge. Rice challenged the constitutionality of the statute under the U.S. Supreme Court’s January 2016 ruling in Hurst v. Florida that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Rice also argued that the prosecutor’s repeated comments about his decision not to testify at trial violated the Fifth Amendment, which bars the use of a defendant’s silence against him. The Missouri court granted a new sentencing trial on the Fifth Amendment issue, avoiding having to decide the constitutionality of the state statute.

No jury has sentenced anyone to death in Missouri since 2013. However, since that time, Missouri judges have sentenced two defendants to death under the hung jury provision. In addition to Dent, a trial judge sentenced Craig Wood to death in 2018 after his jury split 10-2 in favor of a death sentence. As in Dent’s case, Wood’s lawyers have argued that allowing a judge to impose a death sentence when a jury does not reach a unanimous sentencing decision is unconstitutional. In 2016, the Florida Supreme Court and the Delaware Supreme Court struck down provisions in their death-penalty laws permitting judges to impose death sentences based upon non-unanimous jury recommendations for death. Alabama still permits that practice if ten or more jurors have voted for death.

 

Amnesty International 2018 Global Report: Executions Worldwide Fall to Lowest Level in a Decade

Posted: April 10, 2019

Executions worldwide have fallen to their lowest levels in a decade, according to a new report released April 9, 2019 by Amnesty International. In its annual Global Report: Death Sentences and Executions 2018, the human rights organization says it recorded at least 690 executions in 20 countries in 2018, a 31% decline from the 993 executions it recorded in 23 nations in 2017 and 58% below the 1,634 reported executions in 2015. Five countries accounted for 84% of all recorded executions—Iran (253), Saudi Arabia (148), Vietnam (85), Iraq (52) and Egypt (43). Nonetheless, executions in Iran fell by half in 2018, as the country revised its death-penalty law to bar capital punishment for some drug offenses. Data was unavailable for executions in China—where Amnesty says thousands of undocumented executions likely took place—and North Korea, two countries in which information on death sentences and executions is considered a state secret. The 25 executions in the U.S. were the seventh most of any nation.

Amnesty International’s Secretary General Kumi Naidoo called the global decline in executions “dramatic” and said it “proves that even the most unlikely countries are starting to change their ways and realize the death penalty is not the answer.” Although Thailand carried out its first execution in nearly a decade and Japan, Singapore, and South Sudan reported their highest execution levels in years, Naidoo said these “regressive steps” were countered by the significant reduction in executions “carried out by several of the worst perpetrators.”

The report found that global death-sentencing levels in 2018 were similar to those in 2017. Amnesty recorded at least 2,531 death sentences in 54 countries last year, down 2% from the 2,591 reported in 2017. However, death sentences were down 19% from the reported 3,117 death sentences imposed in 55 countries in 2016. The U.S. ranked 12th in death sentences known to have been imposed. Amnesty reported that at least 19,336 people were known to be on death rows around the world at the end of 2018, a 12% decline from the 21,919 people known to be on death row globally at the end of 2017. Only two nations in the Western hemisphere—the United States and Guyana—imposed any death sentences in 2018, the fewest to do so since Amnesty began tracking global death sentences in 1979. For the tenth consecutive year, the U.S. was the only country in the Americas to carry out any executions.

Amnesty characterized the global death penalty as “firmly in decline,” pointing to Burkina Faso’s abolition of the death penalty for ordinary crimes, moratoria on executions declared in the Gambia and in Malaysia, and the Washington state supreme court’s declaration that the death penalty in that state was unconstitutional. At the end of 2018, Amnesty said, 106 countries had abolished the death penalty in law for all crimes and 142 had abolished it in law or practice. In December, a United Nations General Assembly resolution calling for a global moratorium on the death penalty received the support of a record 121 countries, while only 35 nations opposed the resolution. “Slowly but steadily, global consensus is building towards ending the use of the death penalty,” Naidoo said, “but with more than 19,000 people still languishing on death row worldwide, the struggle is far from over.”

 

Texas Court Stays Execution of Prisoner Whose Lawyer Deliberately Excluded Black Jurors

Posted: April 9, 2019

The Texas Court of Criminal Appeals has stayed the execution of Mark Robertson (pictured), a Dallas death-row prisoner whom Texas had scheduled for execution on April 11, 2019. The court’s April 8 stay order did not specify the reason it halted the execution, but Robertson’s lawyers had filed an appeal seeking review of their claim that his court-appointed trial lawyer, Michael Byck, had “engaged in purposeful discrimination” by deliberately excluding African Americans from serving on his jury. In 1997, Byck testified in a hearing in the case that he had been "more than happy to violate anybody else's rights” in picking a jury and that he had intentionally struck prospective black jurors. He also testified that he had told prosecutors prior to the trial that he “didn't want to have any blacks on the jury” because he believed they would not be sympathetic to Robertson, a white defendant. The Dallas County District Attorney’s office had a long history of racially discriminatory jury selection practices, and Byck testified that he and the prosecutors had agreed to “indulge each other” in their “prejudices.”

Race discrimination in death-penalty jury selection has been an issue for decades. In 1965, the U.S. Supreme Court in Swain v. Alabama, upheld a death sentence imposed by an all-white Alabama jury on a black defendant charged with rape, imposing on the defendant the burden of proving that the prosecutor in a county had systematically removed all black jurors in “case after case … with the result that no Negroes ever serve on petit juries.” In Dallas County, a 1963 office manual instructed prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 1986, the Supreme Court ruled in Batson v. Kentucky that Swain had erected an insurmountable evidentiary burden and declared that the removal of even a single prospective juror on the basis of race was unconstitutional. Dallas prosecutors nonetheless continued to discriminatorily strike black jurors, and District Attorney Henry Wade – the county D.A. from 1951 to 1987 – once threatened an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” In 2005, in the case of death-row prisoner Thomas Joe Miller-El, the U.S. Supreme Court found that the Dallas D.A.’s office had a “culture of discrimination” that was “suffused with bias against African-Americans.” It twice reversed lower court decisions that had denied Miller-El relief for the racial discrimination in his case and granted Miller-El a new trial.

Jeremy Schepers, one of Robertson’s attorneys, unequivocally condemned Byck’s discriminatory actions. “Mr. Robertson’s trial attorney testified under oath that it was his ‘conscious desire’ to keep African Americans off the jury,” Schepers told the Houston Chronicle. “And, through a variety of methods he succeeded in doing just that. By now there should be no confusion on this matter – racial discrimination in the administration of justice is intolerable. The courts should not hesitate to denounce this unacceptable behavior.” In a motion filed in Robertson’s case, attorney Lydia Brandt urged the court to intercede, rather than allow a death sentence tainted by discrimination to stand. “In the end, Mr. Byck succeeded in his discriminatory plan – Mr. Robertson was tried by an all-white jury,” she wrote. “At best, the State turned a blind eye towards Mr. Byck's discrimination; at worst, they were a willing co-conspirator.”

 

In Act of ‘Christian Forgiveness,’ Tennessee Victim’s Daughter Asks Governor for Mercy for Her Mother’s Killer

Posted: April 8, 2019

A Tennessee murder victim’s daughter is asking Governor Bill Lee to honor their shared faith by sparing the life of her mother’s killer. In what they describe as an “exceptional” clemency plea, lawyers for Tennessee death-row prisoner Don Johnson (pictured) write that Cynthia Vaughn, the daughter of Connie Johnson, has requested a meeting with Gov. Lee to tell him her story of “Christian forgiveness” and ask that he commute Johnson’s sentence to life without parole. The clemency petition describes such a request as extremely rare, saying “[w]e know of only one other case in the history of the State of Tennessee in which the child of the ultimate victim has begged the Governor for mercy for the murderer – and in that case clemency was granted to Gaile Owens.” Johnson’s clemency petition also stresses his remorse and redemption, explaining that he has become an Ordained Elder in the Seventh Day Adventist Church and now ministers to his fellow prisoners. Vaughn and Johnson’s lawyers hope his story of Christian redemption will be of particular interest to Gov. Lee, whose campaign for governor in 2018 repeatedly emphasized his Christian faith.

In a letter to Governor Lee that is excerpted in the petition, Vaughn describes her change of heart about Johnson. For most of her life, she supported his execution, publicly saying, “I want the freak to burn.” However, in 2012, she sought a meeting with Johnson in prison to tell him about the pain he had caused her. “After I was finished telling him about all the years of pain and agony he had caused, I sat down and heard a voice. The voice told me, ‘That’s it, let it go.’ The next thing that came out of my mouth changed my life forever. I looked at him, told him I couldn't keep hating him because it was doing nothing but killing me instead of him, and then I said, ‘I forgive you.’” Forgiving Johnson, she said, has freed her from her anger and allowed her to live her life more fully. “Letting go of anger has let me love more,” she wrote.

Johnson’s religious conversion is the subject of much of the clemency petition and includes numerous testimonials about the positive effect he has had on other prisoners. It also details his personal journey from the routine beatings and psychological abuse he endured from his father and in the juvenile justice system to what the petition characterizes as his religious redemption. "What is most remarkable about Don Johnson’s life story is not that he ended up on death row following a loveless and hate filled childhood, it is that he overcame that childhood to become the man of God he is today," his petition states. Prison ministers and volunteers wrote in support of clemency, describing Johnson’s remorse and his impact on the lives of others. “Don has asked for forgiveness of his sins and crimes he committed years ago and by the grace of God has become a new person in Christ,” wrote Linda Faulk, a prison volunteer who has known him since 2004. “Donnie is no ordinary person and he has unusual perceptivity. I am aware that the prison uses his talents as a counselor and his unit has one of the best behavioral records in the State of Tennessee. Many people rejoice that he has served so well in spite of his environmental circumstances,” said Dr. John L. DuBosque, a visitor and telephone advisor of Johnson’s since 1998. Johnson’s petition concludes with a plea for a grant of mercy by the governor: “Cynthia Vaughn, the person with the greatest claim on his life, deserves to have her forgiveness honored. She should not have her own healing journey ended with an unnecessary and unwanted execution. Don Johnson should not have his journey from the darkness into the light ended in the death chamber.”

 

Commentators Question Why Supreme Court Stopped One Execution, But Not Another With Identical Religious Exercise Issues

Posted: April 5, 2019

Legal scholars and commentators across the political spectrum have criticized the U.S. Supreme Court for its seemingly contradictory actions, less than two months apart, in two nearly identical religious freedom claims from death-row prisoners. On February 7, 2019, the Court vacated a stay of execution and permitted Alabama to execute death-row prisoner Domineque Ray (pictured, left), who had claimed that the Alabama Department of Corrections was violating his First Amendment rights by refusing to allow his Muslim religious advisor in the execution chamber in circumstances in which the state permitted a Christian chaplain to be present for Christian prisoners. The following month, the Court issued a stay to Patrick Murphy (pictured, right), a Buddhist Texas death-row prisoner who had  challenged the state’s refusal to allow his Buddhist spiritual advisor in the execution chamber. Both states only permitted chaplains who are employed by their corrections departments to be in the execution chamber. Alabama only employed Christian chaplains and Texas employed only Christian and Muslim chaplains. The Court voted 5-4 to allow Ray’s execution to proceed, but halted Murphy’s March 28 execution with only two dissents.

The Court was widely criticized after Ray’s execution, leading some to theorize that the justices who changed their votes did so in response to concerns about the Court’s reputation. David French, writing for the conservative National Review, wrote of the Ray decision, "The state's obligation is to protect and facilitate the free exercise of a person's faith, not to seek reasons to deny him consolation at the moment of his death.” Liberal Yale Law professor Stephen Carter wrote, “In my 30 years of writing about religious freedom, I can't recall a case as outrageous.” Of the different decision made in Murphy’s case, law professor Ilya Somin wrote that the justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations. … Presented with a chance to ‘correct’ their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.” Attorney Deepak Gupta, who has argued before the Court, said, “This is how the Supreme Court tries to erase a very recent and obvious moral error without admitting error. Is the Alabama case materially different? They don’t say.” Spencer Hahn, who represented Ray, said he hopes his client helped draw attention to religious discrimination in the death penalty. “I’d like to think Mr. Ray’s death was not in vain,” he said.

 

Utah Supreme Court Grants Death-Row Prisoner Hearing on “Damning Revelations” of Police Misconduct

Posted: April 4, 2019

Citing “damning revelations” that police and prosecutors have used bribes and threats to secure testimony in a three-decades-old capital case, the Utah Supreme Court has ordered a Utah County court to conduct a hearing to determine whether death-row prisoner Douglas Stewart Carter should receive a new trial. Carter has spent 33 years on Utah’s death row. Although police found fingerprints and blood at the crime scene, no physical evidence tied Carter to the crime.  

Carter, who is African American, was convicted of the murder of a white woman, Eva Olesen, based upon the testimony of two witnesses, Epifanio and Lucia Tovar, who told the jury that he had bragged to them about killing Oleson during a home invasion, that he also said he had intended to rape her, and that he had laughed about her death. Prosecutors also presented a statement Carter had made to police confessing to the murder, but Carter has long claimed that statement had been coerced. Shortly after the trial, the court said, the Tovars “vanished.” After Carter overturned his death sentence on appeal, prosecutors told the court in 1992 that they could not locate the Tovars to testify at Carter’s resentencing. At the resentencing, the trial court permitted the prosecution to read the jury the Tovars’ testimony from Carter’s first trial, and he was again sentenced to death. Through what the appeals court described as “a coincidence,” Carter’s defense team was able to find the Tovars in 2011. When his lawyers spoke with them, the Tovars—who were in the country illegally— confessed that Provo police had threatened them with deportation, the removal of their son, and prison if they did not implicate Carter, pressured them to make false statements, and then gave them gifts and paid for their rent and groceries once they agreed to cooperate. In a sworn statement, the Tovars also said that police had explicitly instructed them to lie under oath about the payments.

Despite this evidence, the trial court had denied Carter’s petition for a new trial without a hearing. The appeals court reversed. In its decision, the court wrote that, in the absence of physical evidence implicating Carter, the Tovars’ testimony was “crucial” to the prosecution’s case. Writing for the court, Justice Deno Himonas said: “Carter has a colorable claim that the Tovars’ testimony evolved over time to become more damaging to Carter in an attempt to please the people who had provided them with rent money and threatened them with deportation and separation if they did not cooperate.” The court said that the Tovars’ sworn statements created “a genuine dispute of material fact as to whether the outcome of the trial would have been different but for the absence of the evidence,” and ordered the trial court to grant Carter a hearing at which he may attempt to prove his claim.

 

Discriminatory Use of Death Penalty Against Gays Raises Concerns Globally and in the U.S.

Posted: April 3, 2019

As human rights activists raise alarms about a new law in Brunei that would punish homosexuality by death by stoning, the U.S. Supreme Court considers whether to hear a case in which jurors who exhibited anti-gay bigotry sentenced a gay defendant to death. Charles Rhines (pictured), a South Dakota death-row prisoner, is asking the U.S. Supreme Court to review his case, after a lower federal court denied him the opportunity to present juror statements showing that homophobic prejudice played a role in his death sentence. Leading civil rights organizations, including the NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and Human Rights Campaign, have asked the Court to hear the case. Meanwhile, on April 3, 2019, Brunei will institute new laws that will make homosexual sex punishable by death. Brunei’s action has drawn a sharp rebuke from United Nations officials, international human rights groups, and activists—including actor George Clooney and musician Elton John, who are calling for a boycott of properties owned by the Sultan of Brunei.

Charles Rhines filed a petition in the U.S. Supreme Court in February 2019 seeking review of his case after a split panel of the U.S. Court of Appeals for the Eighth Circuit voted 2-1 not to hear his appeal. The civil rights organizations filed supporting briefs on March 25 and the Court is scheduled to consider Rhines’ petition on April 12. At Rhines’ trial, prosecution witnesses testified that he was gay and, according to jurors, “[t]here was lots of discussion of homosexuality” during sentencing deliberations. “There was a lot of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that one juror said, “If he’s gay, we’d be sending him where he wants to go” by sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn statement, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.” South Dakota prosecutors have asked the Supreme Court to refuse to consider the civil rights groups’ briefs, calling the federal defenders office representing Rhines “an extremist organization” and saying the petition should “not become a cause célèbre for making Rhines of all people a false prophet of homosexual rights.”

In 2017, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ lawyers are advocating that the Court extend that ruling to include juror bias against a defendant’s sexual orientation. In an amicus brief, the NAACP Legal Defense Fund wrote, “Just as the Constitution does not permit a person to be sentenced to die because of his race, it should not permit a person to be sentenced to die because of his sexual orientation.” A brief submitted by seven LGBTQ rights organizations said, “[b]ias based on sexual orientation in jury deliberations reinforces historical prejudice against lesbian, gay, and bisexual people and undermines the integrity of our judicial system.”

Anti-LGBTQ use of the death penalty came under renewed international scrutiny as Brunei prepares to put a new law in place that would make adultery and homosexual sex punishable by death by stoning. U.N. High Commissioner for Human Rights Michelle Bachelet called the law “cruel and inhuman,” “draconian,” and “a serious setback for human rights protections.” Actor and activist George Clooney urged a boycott of hotels owned by Brunei’s monarch, Sultan Hassanal Bolkiah. In an op-ed for Deadline, Clooney wrote, “every single time we stay at or take meetings at or dine at any of [the Sultan’s] nine hotels we are putting money directly into the pockets of men who choose to stone and whip to death their own citizens for being gay or accused of adultery.” Musician Elton John joined Clooney’s call for boycotts, saying, “Discrimination on the basis of sexuality is plain wrong and has no place in any society.” “I believe that love is love and being able to love as we choose is a basic human right,” John said.

 

Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease

Posted: April 2, 2019

In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.

In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.

Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”

In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

 

California Justices Criticize “Dysfunctional” Death Penalty as Poll Shows Public Overwhelmingly Prefers Life Sentence

Posted: April 1, 2019

Within two weeks of California Governor Gavin Newsom’s announcement that he was halting executions in the state, the decision to issue the moratorium has been bolstered from two unrelated and independent sources. A statewide poll underway at the time of Newson’s moratorium announcement and released by the Public Policy Institute of California (PPIC) on March 27, 2019 found that by a record 2:1 margin, Californians preferred life without possibility of parole over the death penalty as the punishment for first-degree murder. Then on March 28, in the first post-moratorium death-penalty decision issued by the California Supreme Court, two justices sharply criticized the state’s death-penalty system as “dysfunctional,” “expensive,” and unworkable.  

PPIC had just started its annual multi-topic poll on Californians and their government when Governor Newsom announced the moratorium on executions, and the Policy Institute added a question about the death penalty to the poll. PPIC found that, among all adults, 62% said life in prison with no possibility of parole (LWOP) should be the punishment for those who commit first-degree murder, while 31% preferred the death penalty. Among likely voters, 58% preferred LWOP versus 38% who favored the death penalty. Over the last 19 years, the percentage of Californians who prefer LWOP has risen from 47% to this year’s record high, while support for the death penalty has fallen from 49% to this year’s record low. Democrats (76%-21%) and Independents (56%-36%) overwhelmingly preferred LWOP, while Republicans preferred the death penalty by 64%-32%. In the 2016 election, California voters defeated a referendum to abolish capital punishment and narrowly passed Proposition 66, a referendum that claimed it would speed up executions. “This is a case where public opinion continues to shift, and shift support away from the death penalty,” said Mark Baldassare, president of the Public Policy Institute of California. “The campaigns in 2012 and 2016 were very effective in bringing up examples of horrible crimes that were committed, and it raised questions in people’s minds about whether they were prepared to make that decision. Voters are always more willing to vote ‘no’ than ‘yes,’” he said.

In People v. Potts, the first death-penalty opinion released since Gov. Newsom’s announcement, two justices on the California Supreme Court issued a scathing rebuke to California’s death-penalty system. Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar, agreed with the court that, under the law, Thomas Potts’ death sentence should be upheld, but criticized the state’s death penalty as “an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.” Liu wrote: “A death sentence in California has only a remote possibility of ever being carried out. As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed.” The Potts case, the justices said, demonstrates the futility of California’s death penalty. Potts was convicted and sentenced to death in 1998. “Now, 21 years later, we affirm the judgment on direct appeal, but there is more litigation to come in the form of habeas corpus petitions in state and federal courts. This timeline is typical of our capital cases.” The justices called Proposition 66 an unworkable proposal that “promised more than the system can deliver.”  

 

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