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Professor John Bessler Traces Italian Philosopher's Abolitionist Legacy in New Book and Article

In 1764, Italian philosopher Cesare Beccaria wrote the treatise, Dei delitti e delle pene, which author John Bessler (pictured) says spawned global movements for fair and proportional punishment and against practices such as torture and the death penalty. Beccaria’s book was a best-seller that swept across Europe and, translated into English in 1767 as An Essay on Crimes and Punishments, into the American colonies, shaping the beliefs of America’s founding fathers, and influencing leaders, revolutionaries, and law reformers. In two recent publications, Bessler—a law professor and author of numerous books on the death penalty—traces the lasting influence of the 18th-century Italian nobleman and describes how Beccaria’s advocacy of equal treatment under the law and his powerful opposition to torture and the death penalty remains relevant today and has inspired an international movement that, he says, now “involv[es] scores of highly respected anti-death penalty activists and organizations.” Bessler’s latest book, The Celebrated Marquis, takes its title from a compliment given to Beccaria by the delegates of the Continental Congress. In it, Bessler describes how Beccaria’s ideals have taken root in the U.S. and shaped progressive criminal justice reforms across a span of 250 years. His article, The Abolitionist Movement Comes of Age, published in the winter 2018 issue of the Montana Law Review, chronicles Beccaria’s historical impact on efforts to abolish the death penalty across the globe. “There was a time when death sentences and executions were almost universally embraced throughout the world and when the punishment of death was the mandatory punishment for a wide array of felonies,” Bessler writes. “That has largely changed, with those changes in law and practice taking place in many nations.” The death-penalty debate, he writes, has transformed over the centuries “from one that originally focused on absolute power, the divine right of kings, and the asserted right of monarchs to take human life with impunity, to one focused on whether it violates basic or fundamental human rights for the state to kill individual offenders.” Comparing it to the anti-slavery movement in the 19th century, Bessler says “today’s global anti-death penalty movement ... has finally come into its own on the international stage.” Looking forward, he says, one can see a day in the not too distant future in which there is a peremptory international norm against executions and the death penalty itself joins torture as a prohibited international practice.


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Amnesty International Report: Death Penalty Use Down Worldwide in 2017

Use of the death penalty declined worldwide in 2017, according to the Amnesty International’s annual global report on capital punishment. The human rights organization recorded 2,591 death sentences imposed in 53 countries in 2017, down 17% from the 3,117 death sentences it recorded from 55 countries in 2016. Executions also fell, with 23 nations carrying out a recorded 993 executions, off 4% from the the 1,032 executions recorded in 2016 and 39% below the 1,634 executions reported in 2015. Two more countries—Guinea and Mongolia—abolished capital punishment, increasing the number of abolitionist nations to 106, and Guatemala outlawed executions for “ordinary crimes” such as murder, bringing to 142 the number of nations Amnesty reports as having “abolished the death penalty in law or practice.” As in previous years, Amnesty’s execution total does not include the estimated thousands of executions carried out in China or executions in North Korea and Vietnam, all of which treat information on the death penalty as a state secret. Four countries—Iran, Saudi Arabia, Iraq, and Pakistan—which collectively accounted for 87% of the confirmed executions in the rest of the world in 2016, accounted for 84% of the world’s confirmed executions in 2017. The United States dropped to 8th in documented executions (23) in 2017 and ranked 11th in death sentences imposed. For the 9th consecutive year, it was the only country in the Americas to carry out executions. Among human rights violations, Amnesty reported that 15 countries imposed death sentences or executed people for drug-trade related offenses, with China, Iran, Saudi Arabia, and Singapore executing prisoners for involvement in the drug trade. The secrecy practices in Malaysia and Vietnam prevented Amnesty from determining whether similar human rights violations had occurred in those countries. “Despite strides towards abolishing this abhorrent punishment, there are still a few leaders who would resort to the death penalty as a ‘quick-fix’ rather than tackling problems at their roots with humane, effective and evidence-based policies,” said Amnesty’s Secretary General Salil Shetty. “The draconian anti-drug measures widely used in the Middle East and Asia-Pacific have totally failed to address the issue.” Amnesty also cited Iran for violating the human rights proscription against applying the death penalty to prisoners charged with offenses committed when they were younger than age 18. Iran executed five juvenile offenders in 2017, and has at least 80 others remaining on death row. Amnesty said Japan, the Maldives, Pakistan, Singapore, and the United States violated the international prohibition on executing prisoners with mental or intellectual disabilities or keeping such prisoners under sentence of death. Amnesty reported that at least 21,919 people were known to be on death rows around the world at the end of 2017.  


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Human Rights Advocates: Prisoner's Rare Medical Condition Risks Gruesome Botched Execution in Missouri

Human rights advocates are warning that the impending execution of Russell Bucklew (pictured) in Missouri on March 20 presents a “substantially increase[d] risk of a gruesome and botched execution.” Court pleadings and a March 14 letter from the American Civil Liberties Union to the Inter-American Commission on Human Rights (IACHR) say that Bucklew suffers from congenital cavernous hemangioma, a rare and severe blood-vessel condition that his lawyers and doctors say compromises his veins and makes lethal injection inappropriate and potentially torturous. Bucklew’s medical condition causes large tumors of malformed blood vessels to grow on his head, face, and neck, including a vascular tumor that obstructs his airway. Dr. Joel Zivot, a board-certified anesthesiologist who reviewed Bucklew’s medical records for defense lawyers in the case, said his compromised veins will likely prevent the pentobarbital Missouri uses in executions from circulating through his bloodstream as intended, risking a “prolonged and extremely painful” execution. Zivot says there is a substantial risk that Bucklew’s throat tumor may burst during the execution and that he will suffocate, choking on his own blood. Missouri first sought to execute Bucklew on May 21, 2014. At that time, his lawyers filed a challenge to the state’s lethal-injection process based on Bucklew's medical condition, and the ACLU filed a petition in the IACHR seeking precautionary measures—the international equivalent of an injunction—against the execution. The IACHR petition argued that the execution would violate international human rights proscriptions against cruel and inhumane treatment and torture. On May 19, 2014, the Missouri federal district court denied Bucklew’s execution challenge and his motion to stay his execution. A divided panel of the U.S. Court of Appeals for the Eighth Circuit granted him a stay of execution so it could consider his lethal-injection claim, but the full court, sitting en banc, vacated the stay. Bucklew then sought review in the U.S. Supreme Court, which stayed his execution pending the outcome of the lethal-injection appeal in the Eighth Circuit. While the case was working its way through the federal courts, the IACHR issued precautionary measures against the United States on May 20, 2014, requesting that the U.S. comply with its human rights obligations under the charter of the Organization of American States and the American Convention on Human Rights. The IACHR directive asked the U.S. to “abstain from executing Russell Bucklew” until the human rights body could hear his case. On March 6, 2018, the Eighth Circuit Court of Appeals rejected Bucklew’s appeal and affirmed the district court’s ruling, concluding that “Bucklew has failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.” The ACLU then requested that the IACHR “immediately intervene” to halt Bucklew’s execution, and the human rights commission informed the U.S. government that its precautionary measures were still in effect. “This execution should not move forward,” ACLU’s Human Rights Program Director Jamil Dakwar told Newsweek. “Because the state is pursuing lethal injection, that will most certainly cause severe pain and suffering which under international law is considered torture.” Bucklew’s scheduled execution comes on the heels of two failed executions of gravely ill prisoners in which states ignored warnings that the prisoners’ medical conditions had compromised their veins and would make it impossible for executioners to set intravenous execution lines. Nonetheless, Ohio tried and failed to execute Alva Campbell and Alabama called off the execution of Doyle Hamm after failing for more than 2 1/2 hours to obtain venous access in his lower extremities. Campbell subsequently died of his terminal illness and Hamm has sued to bar Alabama from attempting to execute him again. On March 15, Bucklew’s lawyers filed pleadings in the U.S. Supreme Court asking the Court to stay his execution and review his case.


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Global Study Highlights Systemic Risks of Wrongful Capital Convictions

“In 2016, at least 60 prisoners were exonerated after having been condemned to death, in countries across the geographical and political spectrum,” according to a new report on wrongful capital convictions by the Cornell Center on the Death Penalty Worldwide. The report, Justice Denied: A Global Study of Wrongful Death Row Convictions, analyzes risk factors for executing the innocent that are endemic in death penalty cases irrespective of where they are tried, and makes recommendations for systemic reform. The sixty exonerations in just one year “represent[ ] only a tiny fraction of those who are currently on death row for a crime they did not commit,” the report says. “Few innocent prisoners are able to obtain access to the courts, either because they lack lawyers or because there are no procedural mechanisms available by which they can present new evidence of innocence.” The study illustrates systemic risk factors for wrongful convictions that are present wherever capital punishment is practiced, highlighting cases from Cameroon, Indonesia, Jordan, Malawi, Nigeria, and Pakistan. According to the report, these factors include ineffective assistance of legal counsel, torture and coercion, misconduct by officials, racial and ethnic discrimination, false or misleading forensic evidence, and mistaken eyewitness identification. It recommends, among other reforms, that states provide adequate funding and training for capital defense lawyers, provide meaningful access to appellate review, allow for post-conviction DNA testing, record all police interrogations, and provide compensation to those who are exonerated. The Center chose the six countries whose systems it highlighted “not because their legal systems are uniquely flawed, or because they contribute a greater number of wrongful convictions compared to their peers,” the report says, but “because they represent a diversity of geographic regions and legal systems.” While the risk factors for wrongful capital convictions play out differently from country to country, the experience of each country illustrates the gap between the legal protections afforded on paper to those facing the death penalty and the manner in which those safeguards are implemented in practice. The report concludes: “Every country that retains the death penalty—from the poorest to the most wealthy—runs the risk that innocent persons will be executed. No criminal justice system is perfect, and the risk of error can never be entirely eliminated. The only way to completely exclude the possibility of executing the innocent is to abolish the death penalty altogether.”


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U.S. Supreme Court Stays Alabama Execution to Consider Vernon Madison's Competency to Be Executed

The United States Supreme Court has stayed the execution of Vernon Madison to consider for a second time questions related to his competency to be executed. In a 6-3 vote, with Justices Thomas, Alito, and Gorsuch dissenting, the Court halted Alabama's scheduled January 25 execution of Madison "pending the disposition of the petition for a writ of certiorari" he had filed seeking review of his competency to be executed. That petition was based upon new evidence of his deteriorating mental condition and that the doctor whose opinion state courts had relied upon in finding him competent had been addicted to drugs, was forging prescriptions, and was subsequently arrested. Madison—who has no memory of the crime he committed as a result of a succession of strokes that have caused dementia—has been challenging his competency to be executed for more than two years. In May 2016, the U.S. Court of Appeals for the Eleventh Circuit granted Madison a stay of execution to consider his competency claim, and the Supreme Court deadlocked at 4-4 on whether to vacate that stay. The Eleventh Circuit subsequently ruled in March 2017 that Madison was incompetent to be executed, saying that the Alabama state courts had acted unreasonably in finding him competent. The U.S. Supreme Court overturned that decision in November 2017, reinstating the state-court ruling and clearing the way for Alabama to issue the latest death warrant. After the Supreme Court's ruling, Madison's attorneys returned to the state courts with the new evidence. The state court, once again, denied him relief, leading to Madison's request to the Supreme Court for a stay. The stay will provide the Court time to review two separate petitions filed by Madison's lawyers. The first affords the Court the opportunity to address whether the Eighth Amendment permits "the State to execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense." The second petition challenges the constitutionality of Madison's death sentence itself. Madison was sentenced to death by an Alabama trial judge despite the jury's recommendation that he receive a life sentence. Since the time of his sentence, Alabama has repealed the portion of its law permitting "judicial override" of a jury's life recommendation, and no state now authorizes that practice. Madison's execution date has attracted international attention because of his severely impaired mental condition. On January 24, David O'Sullivan, the European Union's Ambassador to the United States, wrote to Alabama Governor Kay Ivey with "an urgent humanitarian appeal" for her to reconsider the state's decision to execute Madison, citing "his major neurocognitive disorder." The letter "note[d] with concern that there is undisputed evidence that Mr. Madison has suffered multiple strokes, including a thalamic stroke resulting in encephalomalacia, that have damaged multiple parts of his brain, including those responsible for memory." It also reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." Madison's lead counsel, Bryan Stevenson, said that he was "thrilled" by the Court's decision to grant a stay and that "[k]illing a fragile man suffering from dementia is unnecessary and cruel."


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