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Kansas May Consider Death Penalty Repeal in 2014

Legislators in Kansas have said they may debate the repeal of the death penalty in 2014. Senate Vice President Jeff King said a recent session on other criminal justice issues indicated a need for a broader discussion of sentences for murder. Senator David Haley, who supports repeal of the death penalty, said, “I believe now is the time for a discussion among those in the Legislature who consider religion a main part of their public service to decide whether it’s necessary for a barbaric and immoral law [to] remain on the books.” A senate bill to repeal capital punishment almost passed in 2010 with a 20-20 vote. Donna Schneweis, chair of the Kansas Coalition Against the Death Penalty, said, “What we are witnessing is there really is support across the political spectrum, including conservatives, libertarians. It’s not just moderates and liberals who are opposed." Kansas reinstated the death penalty in 1994, but has not had any executions since then.


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LETHAL INJECTION: The Ongoing Controversy Over How People Are Executed

One of the nation's leading academic experts on the death penalty has written a new article describing how the controversy surrounding lethal injections has greatly intensified since the Supreme Court's ruling on the subject in 2008 (Baze v. Rees). Deborah Denno, a law professor at Fordham University, analyzed over 300 court decisions in the last five years citing Baze. She found there have been more changes in lethal injection protocols in that time than in the last 30 years, some of which have made matters worse. "The resulting protocols," she wrote, "differ from state to state, and even from one execution to the next within the same state," scarcely resembling those evaluated by the Supreme Court. As a result, "[T]this continuous tinkering often affects already troubled aspects of states’ lethal injection procedures, such as the paltry qualifications of executioners, the absence of medical experts, and the failure to account for difficulties injecting inmates whose drug-using histories diminish the availability of usable veins." She also addressed states' attempts to handle drug shortages, including changing drugs and turning to compounding pharmacies, whose recent record of contamination and resultant deaths have led to calls for greater regulatory oversight. She concluded, "Until death penalty states are willing to focus more on solutions than secrecy, lethal injection as a method of execution will remain mired in an endless cycle of difficulty and disorder."


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Californians Moving Away From Death Penalty Support

In a recent op-ed, the co-author of a key study on the viability of California's death penalty analyzed the recent dramatic shift in public opinion on capital punishment in the state. According to Paula Mitchell, adjunct professor at Loyola of Los Angeles Law School, decades of polling showed about two-thirds of Californians supported the death penalty, but the 2012 referendum to repeal the law lost by just 4 percentage points (52%-48%). Moreover, in counties that used the death penalty the most, support for the death penalty was even lower. In Los Angeles County, which has more people on death row than any other American county, 54.5% of voters favored repeal. In Alameda County, ninth among all counties in death row inmates, 62.5% of the votes cast were for repeal. Mitchell said that this drop in support was due to several factors. California's death penalty, she said, "is expensive and structurally broken—probably beyond repair." She also pointed to unfairness in the system, particularly along racial lines: "In addition to concerns over the exorbitant costs associated with capital punishment and the potential for wrongful convictions—issues that were well publicized during the campaign to repeal last year—there are also ever-present concerns over the uneven application of death penalty." African Americans make up over 36% of California's death row, even though they constitute only 6% of the state population. Read full op-ed below.


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Texas Inmate Facing Execution Is First to Ask for Review Under New Law

UPDATE: Avila's execution date has been stayed. Attorneys for Rigoberto Avila have requested an evidentiary hearing under a new law passed in Texas that allows defendants to challenge their convictions if they were gained through outdated forensic techniques. His case will be the first death penalty case in the state to be considered by the courts under this new legislation. Avila, a Navy vetern, was convicted of murder in El Paso in 2001 for the tragic death of a 19-month-old infant. He is scheduled to be executed on January 15, 2014. He has consistently maintained his innocence and wants to introduce a biomechanical analysis of the cause of death and the testimony of a forensic pathologist, tending to show that the infant's death was an accident. “Finality and certainty is important," said Cathryn Crawford, one of Mr. Avila’s lawyers, "but we have to also have a criminal justice system that is flexible enough to take into account when we have scientific advancements and to allow people like Mr. Avila to have their day in court.”


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RECENT LEGISLATION: Texas Law To Protect the Innocent May Curtail Death Penalty

A new Texas law requiring DNA testing of all biological evidence prior to seeking the death penalty could reduce the number of capital cases. District Attorney Billy Byrd of Upshur County noted, "Essentially, every piece of evidence will have to be tested,” he said, which could delay trials more than a year. “Certainly, that will be the case. We will have to deal with certain delays and longer waits,” he added, noting it is not uncommon for DNA evidence to take more than a year to be processed. Nevertheless, Texas Attorney General Greg Abbott (a likely Republican candidate for governor) is a strong supporter of the law, as is Senator Rodney Ellis, Democrat of Houston, who introduced the bill. Abbott believes the law will eventually save the state time and resources, because the necessary testing will be done upfront.


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RACE: Former Military Officials and Other Groups Ask North Carolina for Fairness in Jury Selection

A number of prominent groups have filed supportive briefs with the North Carolina Supreme Court asking that the practice of racial bias in selecting jurors for death penalty cases be ended. Former senior military officials, families of murder victims, and potential jurors denied the opportunity to serve because of their race were among those arguing that a ruling under the state's Racial Justice Act be upheld. In 2012, Judge Gregory Weeks held that Marcus Robinson's (pictured) trial was tainted with racial discrimination and that there was evidence of similar bias around the state. Statistical studies showed that qualified African Americans were struck from juries at more than twice the rate of whites. Potential black jurors were removed for such reasons as membership in the NAACP or attending an historically black university. Robinson’s death sentence was reduced to life, but the Racial Justice Act was recently repealed after the ruling. The state supreme court will review Judge Weeks' findings of bias. No briefs were filed by groups opposing the ruling in Robinson's case.


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LETHAL INJECTION: Many States Are Searching for New Execution Drugs

Many states are seeking alternative ways to carry out executions by lethal injection. Missouri announced it intends to use the anesthetic propofol, though no other state has used this drug and the drug's manufacturer has strongly objected to such use. Officials in Texas and Ohio announced they will be changing their execution protocols in the near future because their current execution drug (pentobarbital) is expiring and is no longer available for this use. In June, officials in California announced it would abandon its three-drug execution method and develop a new process. Georgia apparently obtained drugs outside the state, but has passed a law making all information about executions a "state secret."  Deborah Denno, a professor at Fordham Law School and an expert on methods of execution, noted the problems states face, “The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end. This affects every single execution in the country. It just stalls everything, stalls the process.”


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LETHAL INJECTION: Shortage of Drugs Leaves Texas Unsure About Future Executions

On August 1, the Texas Department of Criminal Justice announced its remaining supply of pentobarbital, used for lethal injections, expires in September, and it is unsure where to obtain more. The drug's manufacturer, Lundbeck, Inc., has barred distribution to states intending to use the drug in executions. DPIC’s Executive Director, Richard Dieter, remarked, “What’s happening is a scramble by Texas and other states to find something to quickly get into the syringe, rather than a reasoned public discussion about, if we’re going to do this, what is the best practice. The problem here is that life-saving drugs used by medical professionals are being used in executions, and the drug companies don’t want to be a part of that.” In recent months, other states have sought alternatives to pentobarbital. Missouri said it intended to use propofol, though its manufacturer also opposed such use. Georgia, Arkansas, Nebraska, California and other states are also reviewing execution procedures in response to problems with earlier protocols.  On August 1, a federal District Court in Florida ordered the state to reveal information about the drugs to be used in the upcoming execution of John Ferguson on August 5. Florida replied that it received doses of pentobarbital manufactured by Hospira, Inc. for Lundbeck, Inc. from Cardinal Health in Ohio. The drugs were received in 2011 and have expiration dates of Sept. 30 and Nov. 30, 2013.


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Georgia Judge Finds State's Lethal Injection Secrecy Law Interferes With Constitutional Rights

On July 18, a Georgia Superior Court judge ruled that the state’s new law shielding the source of lethal injection drugs interfered with Warren Hill’s right to challenge his method of execution and is therefore probably unconstitutional. According to the law, information pertaining to drugs used in executions is classified as “confidential state secrets” and cannot be disclosed. Judge Gail S. Tusan said the law " "To be executed without being aware of basic information regarding the protocols the State will use to carry out such an execution is surely an irreparable harm." Moreover, she said neither Warren Hill “nor the general public, has sufficient information with which to measure the safety of the drug that would be used to execute [Hill], as there is insufficient information regarding how it was compounded.” Judge Tusan concluded that the law improperly interfered with the court's duty to make a judgment about the planned execution: "[the law] explicitly exempts from judicial review the very information that would be necessary for a court to determine the constitutionality of an inmate’s execution." The court stayed the execution of Hill, who also has a petition before the U.S. Supreme Court regarding his mental retardation.


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Ohio Committee Makes Preliminary Recommendations for Death Penalty Reform

A committee empaneled by the Chief Justice of the Ohio Supreme Court made three preliminary recommendations at its June meeting for reforming the state's death penalty. The panel, which consists of prosecutors, defense attorneys, judges, and academic experts, voted to recommend a reduction in the scope of crimes eligible for the death penalty, the creation of a statewide panel to decide on seeking a death sentence, and the enactment of a Racial Justice Act. The restriction of capital crimes would limit the death penalty to only those cases that involved the murder of multiple victims, a child under 13, or a police officer, or a murder committed to escape detention or eliminate a witness. The statewide review panel would consist of former prosecutors, who would examine potential capital cases to determine whether local prosecutors could bring capital charges. A Racial Justice Act would allow death row inmates to use statistical studies to support claims of racial bias in state courts. While the proposals received a majority vote from the committee, not all members supported them and some opponents were absent from the meeting. A final report is due by the end of the year.


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