PUBLIC OPINION: New Poll Shows California Voters Support Life Without Parole Over Death Penalty

The recent Field Poll conducted in California indicated that more voters now prefer life without the possibility of parole instead of the death penalty for convicted murderers. For the first time since the poll began asking the question over a decade ago, more voters (48%) say they would prefer that someone convicted of first-degree murder be sentenced to life without parole than the death penalty (40%). Eleven years ago, only 37% of respondents favored the life sentence and 44% preferred the death penalty, a 15 point change in the spread. Field Poll director Mark DiCamillo said that voters are far more skeptical of the death penalty now than they were twenty years ago: "There has been a change in attitude," he said. "Twenty-two years ago, the death penalty side argument prevailed by a large majority - now voters are divided in their opinions on many statements, including the cost of death versus life in prison, does a life sentence actually guarantee they will stay in prison, whether innocent people are executed, and their views of how it is administered to the ethnic population."  A recent study in California found that maintaining the death penalty costs taxpayers $184 million a year more than if the state's condemned killers were kept in prison for life.

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Ohio's Chief Justice Calls for Death Penalty Review

The Chief Justice of the Ohio Supreme Court, Maureen O'Connor, has initiated a review of the state's death penalty to determine if changes should be made and asking, "Is the system we have the best we can do?"  To conduct the study, Justice O'Connor called for a 20-person committee of judges, prosecuting attorneys, criminal defense lawyers, lawmakers and academic experts convened by the state's Supreme Court and the Ohio State Bar Association.  She stated the review "will make sure the current system is administered fairly, efficiently, and in the most judicious manner possible."  The committee will also review a 2007 report by the American Bar Association that called for a moratorium on the death penalty while problems identified in the report were examined. Another Supreme Court Justice, Paul Pfeifer, who helped write the 1981 death penalty law as a state senator, has called for such a review in recent years, and has said the law should probably be abolished.

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With Evidence Still Not Tested for DNA, Texas Attorneys Move to Halt Execution

Texas is planning to execute Hank Skinner on November 9 despite the fact that vital evidence from the crime scene in his case has not been subjected to DNA testing.  Skinner has always maintained his innocence.  In 2011, the U.S. Supreme Court held that Skinner could file in federal court to compel the testing, but that litigation has not been completed.  Moreover, a new Texas law became effective on September 1 to ensure that procedural barriers do not prevent the testing of biological evidence that was not previously tested or could be subjected to newer testing.  State senator Rodney Ellis, who co-sponsored the new law that passed the Texas Legislature with overwhelming bipartisan support, said, “The new law was intended to make advanced DNA testing available in all cases where it can aid the truth-seeking process, and Skinner's case falls squarely within that category.” So far, Texas authorities have resisted performing the DNA tests for over 10 years.  Skinner's attorneys filed motions in state district court on September 2 to compel the testing and withdraw the execution date.

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LETHAL INJECTIONS: Ohio and Other States Face New Hurdles with Their Execution Process

Ohio is the only state currently using a single dose of the drug pentobarbital to execute inmates, while other states are using pentobarbital as part of a three-drug protocol. According to the Ohio Department of Rehabilitation and Correction (DRC), the state's supply of the drug will last only until February. Lundbeck, Inc., the manufacturer of pentobarbital, has said they are putting systems in place to block the use of their product in executions. Ohio recently announced changes to its execution protocol that would allow it to use a backup method of execution if the state cannot obtain pentobarbital.  However, the new method has never been used, and involves injecting two drugs directly into an inmate's muscles, bypassing the veins. Under that method, the sedative midazolam would be followed by the painkiller hydromorphone.  There is a possibility of vomiting and convulsions with this protocol.  As with previous changes to execution procedures, the new method could be challenged in court. Tim Young, a State Public Defender, described the new method as, "Untested, anywhere, ever." Because of its limited shelf-life and restrictions by the manufacturer, other states are likey to run out of pentobarbital by 2013.  States might turn to the sedative propofol, but it is also facing shortages, according to the American Society of Health-System Pharmacists.

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California "Taxpayers for Justice" Launches Initiative to Put Death Penalty on 2012 Ballot

After years of reports about the high costs of California's death penalty, including a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions, a group of Californians has announced a citizens' initiative to put death penalty repeal on the 2012 ballot. The group, Taxpayers for Justice, includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, "My frustration is more about the fact that the death penalty does not serve any useful purpose and it's very expensive." The high cost of California's death penalty has gained attention as the state faces major budget cuts.  A study released in June by U.S. Court of Appeals Judge Arthur L. Alarcon found that California's death penalty system is currently costing the state about $184 million per year. In April, California Governor Jerry Brown cancelled plans to build a new death row, saying "It would be unconscionable to earmark $356 million for a new and improved death row while making severe cuts to education and programs that serve the most vulnerable among us." The ballot initiative will be announced at a press conference in Sacramento on August 29, with Jeanne Woodford, the former warden of San Quentin State Prison who oversaw four executions, as one of the speakers.

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NEW VOICES: Ohio Republican Leads Efforts Against Death Penalty

Ohio Rep. Terry Blair (pictured) is one of two Republican co-sponsors of House Bill 160, a bill that would replace the death penalty in the state with life without the possibility of parole.  Blair, whose opinion on the death penalty puts him in the minority in the 59-member House Republican caucus, attributes his views to his religious beliefs.  “I don’t think we have any business in taking another person’s life, even for what we call a legal purpose or what we might refer to as a justified purpose... The creeds of the church say that life is to be protected all along, from natural birth to natural death."  Blair is co-sponsoring the bill with Democrats Ted Celeste and Nickie Antonio.  Exeuctions are on hold in Ohio after U.S. District Judge Gregory L. Frost halted an execution because of concerns about the state's lethal injection process.  Ohio prison officials have submitted a modified lethal injection protocol in anticipation of resuming executions next month. In 2010, Ohio was second only to Texas in the number of executions carried out.

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North Carolina Court to Hear First Challenge under State's Racial Justice Act

Marcus Robinson will be the first North Carolina death row inmate to have a sentencing challenge heard in court based on the state's 2009 Racial Justice Act.  According to the act, a death row inmate who can establish through statistical studies that his sentence was racially discriminatory can seek to have it commuted to life in prison.  Robinson's lawyers plan to argue that he received a death sentence partly because he is black and his victim was white  They plan to cite several North Carolina studies, including one that found that a defendant who killed a white victim was 2.6 times more likely to be sentenced to death than if there were no white victims in the crime.  His lawyers will also cite statistics showing that prosecutors in the state reject minorities for capital juries at twice the rate they reject whites.  In Robinson's case, the prosecutors rejected half the potential jurors who were black but only 15 percent of potential jurors who were other races.  His sentencing jury was comprised of nine whites, one American Indian and two blacks, plus two white alternates. The Racial Justice Act was challenged in the state's prior legislative session, but it was upheld.

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Texas Makes Progress on Improving Criminal Justice System

Recent legislation passed in Texas indicates bipartisan support for criminal justice reform in the state. Legislators recently passed an eyewitness-identification bill intended to cut down on the number of victims and witnesses who make mistakes in in-person and photographic line-ups. This new law will require police agencies to adopt procedures and use techniques that help lessen the number of false confessions. Another bill passed recently will make it easier for convicted persons to have DNA materials tested if the testing was not done before the trial or if updated testing techniques might reveal information that is more accurate than previous results. Finally, the legislature also passed a bill that would allow compensation for the wrongfully accused even if orders of release do not specifically include the terms "actual innocence." The bill allows affidavits by a district attorney in the crime's jurisdiction or a special prosecutor who officially investigated the case to provide verification of innocence.

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Legislation Introduced to Help Enforce Treaty Protecting Those Arrested Outside Their Own Country

On June 14, Senator Patrick Leahy (D.-Vt.) (pictured) introduced the Consular Notification Compliance Act. This bill would establish enforcement mechanisms for U.S. compliance with the Vienna Convention on Consular Relations, a key treaty that provides the right to consult with your consulate for citizens detained outside their home country. The U.S. has signed and ratified this treaty, but has not always abided by its terms.  Among other provisions, the act will give jurisdiction to federal courts to review cases of foreign nationals currently on death row in the U.S. who did not receive consular access as required under the treaty. In 2004, the International Court of Justice ruled that the U.S. must review the death sentences and convictions of 50 Mexican nationals who had not been properly notified of their right to consular access. The U.S. Supreme Court, however, held that Congress must pass legislation on how the treaty will be enforced before hearings could be required.  The proposed legislation would allow the U.S. to be in line with the ICJ ruling. Senator Leahy said, "Compliance with our consular notification obligations is not a question of partisan interest. Given the long history of bipartisan support for the VCCR, there should be unanimous support for this legislation to uphold our treaty obligations. A failure to act places Americans at risk."

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NEW RESOURCES: The State of Criminal Justice 2011

The American Bar Association recently published The State of Criminal Justice 2011, an annual report that examines major issues, trends and significant changes in America's criminal justice system. The publication serves as a valuable resource for academics, students, and policy-makes. The chapter devoted to capital punishment was written by Ronald Tabak, special counsel and pro bono coordinator at the law firm of Skadden Arps in New York. Tabak explores legislative changes in the states, the declining use of the death penalty, important Supreme Court decisions, and other issues such as the adequacy of representation in capital cases. In concluding, he writes, " Ultimately, our society must decide whether to continue with a system that has been found in study after study to be far more expensive than the actual alternative - in which life without parole is the most serious punishment. This question has become substantially more important given the severe economic downturn in 2008-2011. In view of the lack of persuasive evidence of societal benefits from capital punishment, this is one ineffectual, wasteful government program whose elimination deserves serious consideration."

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