Leading off this week is not a a case but a vote. The New York Assembly's Code Committee voted 11-7 against the reinstatement of the death penalty after writing a fairly detailed report of the testimony relating to the failures of the death penalty in that state. Although two men reportedly remain housed on death row in that state, capital punishment is considered dead in the Empire State with its obituary already published. New York becomes the thirteenth state to relinquish capital punishment as a sentencing option. Like neighboring Massachusetts, which has annually seen attempts to bring back capital punishment following the Supreme Judicial Court's striking down of that state's death penalty, the New York legislature appears likely to attempt to bring back state killing again next session.

Few decisions are actually noted this week. In Alabama, the state supreme court held inEx parte Jenkins that the Court of Criminal Appeals improperly held that claims in an amended petition could not be considered as they "did not relate back" since civil rules do not apply to Rule 32 petitions. The North Carolina Supreme Court in State v. Chapman vacates in light of Roper v. Simmons. In Lovitt v. True not even Ken Starrcould save Robin Lovitt from this Kafkaesque Fourth Circuit opinion that holds failure to investigate (and hence present) evidence of a "nightmarish childhood" that included an "extensive history of childhood sexual abuse and rape" was not required under Supreme Court precedent.

The Lancet in its April 16th edition will publish an article authored by three U.S. anesthesiologists and one lawyer that analyzed toxicology results from 49 executions concluding that the executed were likely conscious after being administered the lethal drug cocktail that kills them. Specifically, the authors studied toxicology reports from 49 executed inmates - seven in Arizona, eight in Georgia, 11 in North Carolina and 23 in South Carolina. They found that 43 out of the 49 inmates had post-mortem blood thiopental levels below that required for surgery. And 21 inmates had levels consistent with awareness. "Thus," the authors concluded, "lethal injection anesthesia methodology is flawed and some inmates might have experienced awareness and suffering during execution."

Brooklyn Law School's Journal of Law and Policy has several articles of note in its most recent edition. Among the most notable contents of Journal is Alex Lesman's Note: STATE RESPONSES TO THE SPECTER OF RACIAL DISCRIMINATION IN CAPITAL PROCEEDINGS: THE KENTUCKY RACIAL JUSTICE ACT AND THE NEW JERSEY SUPREME COURT'S PROPORTIONALITY REVIEW PROJECT, which attempts to breath life back into claims relating to race and the death penalty. Of other note is that edition's focus on scientific evidence: NUCLEAR AND MITOCHONDRIAL DNA IN THE COURTROOM (Julian Adams, Ph.D.); MITOCHONDRIAL DNA: EMERGING LEGAL ISSUES (Edward K. Cheng); COMPOSITIONAL ANALYSIS OF BULLET LEAD AS FORENSIC EVIDENCE (Michael O. Finkelstein & Bruce Levin, Ph.D.); andFINGERPRINT EVIDENCE (Sandy L. Zabell, Ph.D.)

The Texas Senate approved a law (S.B. 60) that would require capital juries to be advised that if they did not return a death sentence the defendant would be required to serve life with no parole; life with parole would no longer be an option. Last Friday an interesting array of former federal judges, prosecutors and innocence projects filed this cert. amicus brief in Kelley v. Crosby, a Florida capital case on the failure to disclose impeachment evidence; Kirkland & Ellis (Ken Starr again), as well as Goldstein & Howe, are counsel of record. On April 26, the Supreme Court will hear oral arguments in Bell v. Thompson with the issue before the Court being whether or not the Sixth Circuit abused its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Federal Rule of Appellate Procedure 41(d)(2)(D) made issuance of the mandate mandatory; more at the SCOTUSBlog. Kurdish leader and new Iraqi President Jalal Talabani indicates he will believes the death penalty is inappropriate even for Saddam Hussein. A Georgia Superior Court overturned the murder conviction of death row inmate Willie Palmer after finding that prosecutors hid a $500 payoff to the state's key trial witness, an act the judge said was "in defiance of (the state's) legal and ethical duties."

As always, thanks for reading. - k

Execution Information

Since the last edition there have been no executions in the States. The following executions are pending with serious dates:

April

15 Richard Longworth (South Carolina)

20 Douglas Roberts (Texas)

20 Milton Mathis (Texas)

21 Bill Benefiel (Indiana)

27 Donald Jones (Missouri)

28 Mario Centobie (Alabama / volunteer)

May

3 Lonnie Pursley (Texas)

6 Earl Richmond Jr. (North Carolina)

11 Michael Ross (Connecticut----volunteer)

12 George Miller (Oklahoma)

18 Bryan Wolfe (Texas)

19 Richard Cartwright (Texas)

19 Garry Allen (Oklahoma)

25 Gary Sterling (Texas)

Decisions Reversing, Remanding or Otherwise Holding Death in Check

State v. Chapman, 2005 WL 774324 (N.C. 4/7/2005) Death sentence vacated in light of Roper v. Simmons.

Ex parte Jenkins, 2005 WL 796809 (Ala. 4/8/2005) Court of Criminal Appeals improperly held "that Jenkins's claim of juror misconduct, presented for the first time in his amended petition, could not be considered because it did not relate back to his original petition." Rule 32.7(d) permits amendment at any time prior to the entry of judgment and therefore the relation back doctrine is inapplicable.

Decisions Favoring Death

Lovitt v. True, 2005 WL 767416 (4th Cir. 4/6/2005) Relief denied on failure to investigate (they "'hardly investigated [his] background at all' and thus neglected to present relevant mitigating evidence at sentencing about his "nightmarish childhood'."), an interesting Brady issue as to the discoverability of opinions by a medical examiner, as well as the intentional destruction of evidence during post-conviction review, despite Lovitt's claims of actual innocence.

Berkley v. State, No. AP-74,336 (Tex Crim App 4/7/2005) (unpublished) Relief denied on claims including prosecutorial misconduct in jury selection; jurors ability to weigh police testimony; life/death qualifications of jurors; evidentiary issues; jury charge permitted a nonunanmious verdict; standard of proof instructions for special questions; as well as, failure to charge on self-defense and the defense's proffered definition of mitigation.

Notable NonCapital Decisions

Musladin v. LaMarque, 2005 WL 797565 (9th Cir. 4/8/2005) Wearing by friends and family member of the deceased of the decedents picture during the trial on buttons held to be error where the defense at trial was self-defense.

People v. Hunter , 2005 WL 768682 (Cal.App. 1 Dist. 4/6/2005) Whether prosecution violated a federal court order by using items gained during prior federal habeas proceeding was a matter to be addressed by the federal courts, not the state courts. "Whether the Attorney General violated the federal district court's order by not filing pleadings under seal, and whether the district attorney violated the protective order by viewing them in the public record, were questions for the federal district court, where Hunter failed to raise them. While we certainly do not condone any violations of the federal protective order, we need not reach those issues here in light of our conclusion that Hunter was not prejudiced by the use of the documents, if so obtained. Also, Hunter's claim that the attorney representing him in his petition for writ of habeas corpus in federal court was ineffective is one which must be made in federal court."

Thompson v. State, 2005 WL 775438 (Ind.App. 4/7/2005) "The Indiana Court of Appeals threw out a cocaine conviction against an Indianapolis man Thursday, declaring his strip-searchin front of a camera crew for the Oxygen Network 'unprofessional and unreasonable'.") (hat tip Indiana PD blog)

Focus

A little levity this week takes the Focus. Although the Lancet's article should be covered, or Lesman's Note on race and the death penalty, this Week's Focus is a blog post from " I'm a PD." The post by I'm a PD stands in sharp juxtaposition to the Fourth Circuit opinion in Lovitt v. True as to what reasonable counsel don't do during trials versus the hypothetical proffered by of Judge Wilkinson in the Lovitt opinion.

More Dumb Crime...

Murder case. Alibi: Client was at a different party at the time of the murder. They have it on video. With a time stamp.

Problem: The fakest fake video you ever ever saw.

"THE ALIBI"

Lights, sound: rap music, camera, action!

Chuchi, our client, sits in an armchair drinking a beer. Time stamp in bottom right hand corner shows exactly 20 minutes before the murder. Chuchi's friend, Lupe, dances directly by the camera and says very clearly, "Hey Chuchi, you've been sitting there ALL NIGHT, why don't you get up and dance?"

Chuchi enunciates very clearly his logical response, "Eh, no!! I plan to sit here ALL NIGHT, Lupe!"

"Okay, Chuchi, you keep sitting there ALL NIGHT, then."

Next, Jaime, another friend comes into the frame. "Eh, Chuchi, why don't you come over and have a beer with us!"

Again, Chuchi makes his position very clear, "No, homes, I am an probation, and I am not supposed to drink. Anyway, I'm going to sit here ALL NIGHT."

"Alright man, whatever!," Jaime responds jovially.

The time of the murder silently ticks past in the bottom right hand corner of the screen.

Then, suddenly, another young man runs into the room and exclaims, "Chuchi! Chuchi! You will never believe this! While you were sitting here all night, there was a murder over there at another party where you were not at!"

"I do not believe that, man!," cries Chuchi, still sitting in his chair.

"I'm serious!," the young messenger continues, "Someone we do not know was shot at a place where we were not at. Meaning, at the other party!"

"Although it could not have been me, that's crazy," pontificates our young client.

THE END.

Imagine being handed that tape by Lupe, who states that she will come in and authenticate the tape for you at trial.

Whether you use it or lose it, that's what I call dumb crime.

Around the Web

DPIC notes:

NEW VOICES: Veteran New York Legislator Now Opposes Death Penalty

Veteran New York legislator John R. Dunne voted for the death penalty 12 times during his tenure in the New York Senate. He then went on to serve as an assistant attorney general at the U.S. Department of Justice. But his concerns about the fairness and accuracy of capital punishment have now resulted in his opposition to the death penalty. In an op-ed appearing in the New York Daily News, Dunne wrote:

As a member of the New York Senate from 1966 to 1989, I voted 12 times to establish the death penalty in New York. Each time I cast a vote for death, I believed I was doing the right thing. When New York restored the death penalty, Senate Majority Leader Joe Bruno appointed me to be one of the three original directors of the state's Capital Defender Office, established to provide counsel for indigent defendants facing death.

But the last decade taught me that you cannot tinker with the death penalty. During those years, I watched a steady stream of respected leaders change their minds on capital punishment, including judges who had long enforced the death penalty. I read the stories of one innocent person after another walking off Death Row after being sentenced to death for crimes they did not commit. These experiences brought me into contact with some of the thorniest issues surrounding the death penalty.

It is unfair to ask jurors to choose with certainty between life and death, given the stress, pressure, media clamor and confusion surrounding their weighty decision. We cannot expect our police to pursue all reasonable lines of inquiry once a suspect is ID'd. And prosecutors are unable to oversee the police in every case. Judges are neither always free of bias nor intellectually capable in every case. These are the issues that must be addressed.

The Assembly Codes Committee is poised to reject the death penalty when it votes this week. Those who have not yet changed their views with the times have demanded that the Assembly bring this bill to the floor for a vote by all of its members. As a legislator for more than 20 years, I can assure you a bill that dies in committee has been through a full and appropriate legislative process.

The Codes Committee is right to kill the death penalty, and the Assembly is right to consider the matter closed. Their act will leave life imprisonment without parole as the top punishment for first-degree murder in New York.

I regret my votes in favor of the death penalty. When the Codes Committee institutionalizes its opposition to the death penalty in a few days, I will be grateful.

(New York Daily News, April 10, 2005). See New Voices, Innocence and New York and the Death Penalty.

NEW VOICES: New Iraqi President Says Death Penalty is a Problem

The new president of Iraq, Kurdish leader Jalal Talabani (pictured), recently voiced his concerns about the death penalty, even for those accused of war crimes like Saddam Hussein. "I am among the lawyers who signed an international petition against the death penalty in the world and it would be [a] problem for me if Iraqi courts issued death sentences," Talabini said when asked about the fate of Hussein, who is in U.S. custody in Iraq awaiting trial for war crimes and crimes against humanity. Kurds were among the communities who suffered the most under the dictatorship of Saddam. Under current law, the former Iraqi leader could face the death penalty. (Agence France Presse, April 11, 2005). See New Voices and International Death Penalty.

New York Takes Historic Step Towards Ending the Death Penalty

The Codes Committee of the New York Assembly has voted 11-7 against considering legislation to re-instate the death penalty in New York, a decision that likely ends such efforts during this legislative term. Assembly Speaker Sheldon Silver has recently voiced concerns about the death penalty and has shifted his stance away from supporting capital punishment. New York's current death penalty law was passed in 1995 but declared invalid by a ruling from the state's highest court last year. While the recent death penalty was in place in New York, no executions were carried out. (Associated Press, April 12, 2005). The Committee vote came after five days of hearings in New York City and Albany at which almost all the speakers raised serious problems about New York's statute and the death penalty generally. See DPIC's Web page on New York's death penalty. See also, Recent Legislative Activity.

New Resources For Educators Teaching About the Death Penalty

The Death Penalty Information Center has expanded the resources related to its award-winning Educational Curriculum on the Death Penalty. We now offer a listserv for educators who teach about capital punishment, free teacher training workshops, and free brochures for distribution to schools and teachers. Launched in 2000, DPIC's Educational Curriculum is a balanced Internet-based classroom tool that offers flexible lesson plans, teacher overviews, separate teacher and student curriculum Web sites, and learning objectives that meet national educational standards. Teachers throughout the nation are using this resource, and educators in more than 14 states have hosted DPIC's free training on how to teach the subject of the death penalty. The new e-mail listserv provides educators with timely updates on significant death penalty news and events for classroom discussion and offers access to death penalty experts. To learn about the listserv, find out more about the curriculum, or to see how you can use this teaching tool within your community, please click here.

Time Running Out for Access to DNA Testing in Florida

For Florida prisoners, including death row inmates, who were convicted before DNA evidence was routinely tested, the state-imposed October 1 deadline to submit new claims is fast approaching. After that date, evidence may be destroyed and the chance for an exoneration extinguished. Yet the system is seriously backlogged and under-resourced. Noting that Governor Jeb Bush recently stated that any court in Florida or elsewhere would "immediately" review a prisoner's claim of DNA evidence exonerating him, the St. Petersburg Times called for the passage of legislation to ensure relief for the wrongly convicted by extending the deadline:

If only it were so.

The governor must be unaware of the laws and recent history of his own state. Prisoners convicted before DNA was routinely tested have only until Oct. 1 to submit their claims. Those who pleaded guilty or no contest, as even innocent people sometimes do, are ineligible. There is no money to pay lawyers to file DNA petitions. Nearly 700 applications are backed up and will likely run afoul of the deadline. The governor's office is lobbying the Legislature for a constitutional amendment that, among other things, would prevent the Supreme Court from reopening the window of opportunity.

"There is only one vehicle, and it's dying," warns Jennifer Greenberg, the sole lawyer for the Florida Innocence Initiative at Tallahassee, which appealed to Bush to support legislation (HB 247) extending the deadline and broadening eligibility.

...

More than simple justice depends on passage of the DNA legislation that Rep. Phillip J. Brutus, D-North Miami, is sponsoring. Legislation that President Bush signed last year provides federal aid to states with effective post-conviction DNA statutes. But Florida has yet to do what the president urged, which is to "make doubly sure no person is held to account for a crime he or she did not commit."

(St. Petersburg Times, March 25, 2005). See DPIC's Innocence. For more information see the Innocence Project.

Texas Senate Refuses to Give Jurors the Sentencing Option of Life Without Parole

Legislation that would allow those convicted of capital murder to be sentenced to life in prison without parole recently failed to win a key procedural vote in the Texas Senate, largely because of opposition from prosecutors and pro-death penalty organizations who said it would result in fewer death sentences. Although supported by a strong majority of the senators and the people of Texas, the bill needed a 2/3 majority in order to be debated. The Senate's failure to pass the bill means that Texas and New Mexico remain the only two death penalty states in the nation to not offer life without parole as an alternative sentencing option. Sen. Eddie Lucio, lead sponsor of the life without parole measure, noted that 78% of Texans support his proposal and commented, "The sentence of life without parole is not a novel, untested idea. It's the norm in our criminal justice system."

Supporters say Lucio's bill would be a tougher sentence for convicted murderers who are excluded from the death penalty, and it would offer another option to rural district attorneys who can't afford to hold a death penalty trial. Those opposed to the proposal, such as the Texas-based "Justice for All" group and Harris County District Attorney Chuck Rosenthal, say jurors would have been less likely to hand down a death sentence if they had the option of life in prison without parole. Lucio said he has not given up on the measure, but it is unlikely to pass this year. (Dallas Morning News and San Antonio Express-News, April 6, 2005). See Life Without Parole.

Georgia Death Penalty Conviction Overturned Because of Prosecutorial Misconduct

A Georgia Superior Court overturned the murder conviction of death row inmate Willie Palmer after finding that prosecutors hid a $500 payoff to the state's key trial witness, an act the judge said was "in defiance of (the state's) legal and ethical duties." The judge also threw out Palmer's death sentence on the grounds that his trial lawyer failed to investigate and present evidence of Palmer's mental retardation.

In his opinion, the judge noted that prosecutors "intentionally hid" a deal made with the a state witness, and that prosecutors "aggressively resisted" the deal's disclosure until a hearing that took place 6 years after Palmer's 1997 trial. "It appears logically inescapable that the state knew, only too well, how extremely material this evidence was in this case. It is difficult, if not impossible, to conceive of how this suppression could have been done in good faith.... Without the jury being informed that the state has provided an important witness a pecuniary motivation to testify, the trial transforms into a basically corrupt process in which the jury is deprived of a major key to seeking and deciding the truth - and determining a man's fate," the judge wrote in ordering a new trial for Palmer. The State Attorney General's Office is appealing the ruling.

(Atlanta Journal-Constitution, April 4, 2005). See Representation and Mental Retardation.

Amnesty International Releases Annual International Death Penalty Report

According to a new report issued by Amnesty International, the United States is among four countries that carried out the vast majority of the 3,797 executions around the world in 2004. Amnesty's report states that the nations carrying out the most executioners last year were China (3,400), Iran (159), Vietnam (64), United States (59), Saudi Arabia (33), Pakistan (15), Kuwait (9), Bangladesh (7), Egypt (6), Singapore (6), and Yemen (6). The report notes that the increase in executions in China is partly due to a new way of estimating such executions since the government does not publicly release this data. The use of the death penalty declined in the U.S. in 2004 compared to 2003.

Five nations abandoned the death penalty in 2004 (Bhutan, Greece, Samoa, Senegal, and Turkey), bringing the total number of countries that have abolished the death penalty in law or practice to 120. A third of those countries have abandoned the death penalty in the past 15 years, a trend that Amnesty International says shows a "continued move closer to the universal abolition of capital punishment." Only 76 countries retain and use the death penalty, but few of those nations carry out executions each year. "The death penalty is cruel and unnecessary, does not deter crime, and runs the risk of killing the wrongly convicted, " the report concludes.

(The (London) Independent, April 4, 2005, and "Facts and Figures on the Death Penalty," Amnesty International, April 2005). See Amnesty's Report and DPIC's International Death Penalty.

New York State Legislature Issues Comprehensive Death Penalty Report

In the most comprehensive examination of a statute in the history of the New York State Legislature, state lawmakers released a report highlighting the testimony of 170 witnesses at five statewide hearings on the state's death penalty law. The report, issued by Assembly Speaker Sheldon Silver along with the Chairs of the Committees on Codes, the Judiciary and Correction, is a thorough examination of the statute and its troubled history.

"We have spent more than $170 million administering the death penalty since 1995, but not a single person has been executed during that time," said Joseph Lentol, Chair of the Committee on Codes, who also noted that only seven persons had been sentenced to death and that the first four of these sentences to reach the Court of Appeals had been struck down on various grounds. He continued, "These facts obviously cried out for a thorough examination of whether the death penalty should be re-enacted in New York."

"When the Court of Appeals in essence struck down New York's death penalty law in LaValle, we in the Legislature faced an important choice: act quickly or act deliberately. We chose the latter option and conducted a series of extraordinary public hearings to solicit the widest possible range of views on the death penalty in New York before deciding what action, if any, to take with respect to the statute," said Silver. The report presents a detailed discussion of racial problems, religious views, mental illness, costs, innocence, and deterrence, among other subjects.

Helene Weinstein, Chair of the Judiciary Committee, noted that testimony heard during the hearings revealed that much of the legal landscape surrounding the death penalty had changed in the years since New York re-enacted its statute, including a series of overturned wrongful convictions and the development of investigation technologies such as DNA. "During our hearings, we heard testimony from a number of persons who had been wrongfully convicted of murder and, in some cases, placed on death row before being exonerated. The criminal justice system makes mistakes, but when the death penalty is applied, those mistakes can never be corrected," she said.

Jeffrion Aubry, Chair of the Committee on Correction, said that the most compelling testimony came from victims' family members. He stated, "Persons who had suffered inconceivable loss opened their hearts and told us what they thought was the most appropriate way to bring the killers of their loved ones to justice. These courageous individuals presented varied views on capital punishment. We heard their stories and have presented their views in this landmark report."

(Press Release, New York State Assembly, "Assembly Releases Death Penalty Report," April 4, 2005). Read the Press Release. Read the Complete Report. See also DPIC's Web Page on People v. LaValle.

SCOTUSBlog notes:

A Second Chance for Gregory Thompson?

Posted by Liz Aloi at 09:22 AM

On April 26, the Supreme Court will hear oral arguments in Bell v. Thompson, No. 04-514. The issue before the Court is whether or not the Sixth Circuit abused its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Federal Rule of Appellate Procedure 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that the court's action was necessary to prevent a miscarriage of justice, in light of the fact that enforcement of the inmate's death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings.

It is uncontested that in 1985, Gregory Thompson, a diagnosed schizophrenic, brutally murdered 29-year-old newlywed Brenda Blanton Lane. He received a death sentence from a Tennessee jury for this crime. After losing appeals in the Tennessee state courts, Thompson filed a habeas petition with the United States District Court for the Eastern District of Tennessee, which summarily denied relief. That court explained that Thompson had not “provided this Court with any significant probative evidence that [he] was suffering from a significant mental disease that should have been presented to the jury during the punishment phase as mitigation evidence.” In June 2003, the Sixth Circuit affirmed this summary denial of Thompson’s habeas claim.

At issue on appeal before the Sixth Circuit was whether or not Thompson’s lawyers had been negligent in failing to present information about his mental illness to the jury during his sentencing hearing. By a vote of 2-1 the Court found that trial counsel had not been negligent. Like the district court, it emphasized that none of Thompson’s post-trial experts had indicated that Thompson suffered from a mental illness at the time of his crime. In December 2003, the Supreme Court denied cert. Having exhausted his appeals, Thompson’s execution was scheduled for August 19, 2004.

In the meantime, on June 14, 2004, Thompson filed another petition for writ of habeas corpus in the United States District Court for the Eastern District of Tennessee, asserting a claim of incompetency for execution under the Supreme Court’s 1986 decision in Ford v. Wainwright. On June 21, 2004, the district court granted a “brief stay” of Thompson’s execution, with the stay to expire automatically upon issuance of an order of the court denying habeas relief but to remain in place upon issuance of an order granting the writ. Then, on June 23, 2004, in a remarkable turn of events, the Sixth Circuit issued a second opinion in the case.

In the month leading up to the second opinion an intern for Senior Judge Richard Suhrheinrich was reviewing the case and found the deposition testimony – not included in the district court record – of a clinical psychologist that the court deemed “extremely probative” of Thompson’s mental state at the time of the crime. The intern, a board-certified psychiatrist, brought this to the attention of Judge Suhrheinrich, who had initially ruled against Thompson. Judge Suhrheinrich reviewed the case file and decided to change his vote. The court thus vacated its earlier opinion, explaining that the new testimony created a factual dispute regarding Thompson’s mental state that precluded summary dismissal of his petition.

The Sixth Circuit was able to rescind its initial opinion and send the case back to the district court for rehearing because the mandate had not yet issued. However, the Federal Rules of Appellate Procedure require timely issuance of mandates. It is unclear why the mandate, which would have formally closed the case, was not issued immediately after the first opinion.

The State of Tennessee, which has only executed one person since 1960, argues that the Court was not legally allowed to change its mind. In its 1998 decision in Calderon v. Thompson, the Supreme Court held that, given a State’s strong interest in the finality of its criminal convictions, a federal court of appeals abuses its discretion when it recalls its mandate to revisit the merits of an earlier decision denying habeas relief to a state prisoner, unless it acts to avoid a miscarriage of justice. The state contends that the issuing a second opinion is equivalent to withdrawing a mandate. In order to demonstrate a miscarriage of justice, Thompson's attorneys must show by clear and convincing evidence that “no reasonable juror would have found him eligible for the death penalty in light of the new evidence.”(quoting Sawyer v. Whitley, 505 U.S. 333, 348 (1992)). The State of Tennessee argues that the Respondents cannot meet this standard.

On the other hand, Thompson’s attorneys – including former Acting Solicitor General Walter Dellinger – argue that the court should be allowed to correct itself. They claim that Rules 41(b) and (d)(1) of the Federal Rules of Appellate Procedure grant a court of appeals the discretion to stay and withhold issuance of its mandate following a denial of a writ of certiorari from the Supreme Court. Furthermore, they maintain that regardless of whether or not the 6th Circuit had the discretion to revisit the mandate, this case meets the miscarriage of justice standard. If Thompson prevails he will likely receive a new sentencing hearing. If he loses there will still be an issue as to whether or not he is mentally competent enough to be executed; Thompson believes that he would remain alive for two years after lethal injection and have the opportunity to take a long-awaited trip to Hawaii.

Here are the Merit’s briefs ; the Sixth Circuit’s second opinion; and the petition for certiorari in the case.

Recent Filing

On Friday we filed this cert. amicus brief in No. 04-1196, Kelley v. Crosby, a Florida capital case. Kelley’s cert. petition challenges, inter alia, the Eleventh Circuit’s ruling that the prosecution’s suppression of evidence that could have been used to impeach the State’s key witness was not a Brady violation because the evidence was merely “cumulative” – that is, Kelley’s trial counsel was purportedly able to impeach the witness using the same arguments that the evidence supported.

Our amici are a group of former federal judges and/or prosecutors – John Gibbons, Timothy Lewis, William Sessions, and Thomas Sullivan – as well as the Florida Innocence Initiative and the Northwestern University School of Law’s Center on Wrongful Convictions. Kenneth Starr, Steven Engel, and Bridget O’Connor of Kirkland & Ellis are co-counsel on the brief with us.

Around the Blogs

Talk Left writes:

Texas Senate Approves Life Without Parole Option

The Texas Senate today approved a law (S.B. 60) that would require capital juries to be advised that if they did not return a death sentence, the defendant would be required to serve life with no parole. Life with parole would no longer be an option.

Under current law, Texas juries that find a guilty a verdict in a capital murder case can decide whether the defendant receives the death penalty or a life term with the possibility for parole. Under the bill, the two options would be execution by lethal injection or life in prison without parole.

This is good news because it is expected that fewer jurors would vote for death if they know LWOP was the only other option and the killer would never be released. Just last week the bill looked like it was on life-support, this is quite a victory.

Some editorials supporting LWOP are here and here.

New Medical Report: Inmates Likely Conscious After Execution Drugs Administered

A new report by the University of Miami Leonard M. Miller School of Medicine, published in The Lancet, the prestigious British medical journal, raises serious concerns that prisoners being executed likely are conscious after being administered the lethal drug cocktail that kills them. In the study, the group analyzed toxicology results from 49 executions:

The practice of lethal injection for execution perverts the tools of medicine and the trust the public has in drugs and clinical protocols. Although executioners use an anesthetic, the current dosages and means of administration do not assure that inmates are senseless to pain, particularly because inmates are not monitored for level of consciousness or depth of anesthesia,” said Leonidas G. Koniaris, M.D., associate professor of clinical surgery, cell biology and anatomy, and lead author of the letter.

“We found that 43 of 49 executed inmates had post-mortem blood anesthesia levels below that required for surgery, while 21 of those inmates had levels that were consistent with awareness,” said Teresa Zimmers, Ph.D., research assistant professor of surgery who analyzed the data for the research.

“This study provides strong evidence that anesthesia methodology in lethal injection is flawed and that some inmates likely experienced awareness and profound suffering during execution,” said Jonathan Sheldon. “While some think that the condemned deserve to suffer, our society long ago rejected the unnecessary infliction of pain in execution because it is contrary to our 8th Amendment prohibition against cruel and unusual punishment.”

The National Coalition to Abolish the Death Penalty ( NCADP)explains:

In most states, lethal injection executions consist of administration of three drugs. First, sodium thiopental is administered to render the prisoner unconscious. Then, pancuronium bromide is administered to cause paralysis. Finally, potassium chloride is given to stop the heart, thus causing death.

“Without anesthesia,” the authors write, “the condemned person would experience asphyxiation, a severe burning sensation, massive muscle cramping and finally cardiac arrest. Thus anesthesia is necessary both to mitigate the suffering of the condemned and to preserve public opinion that lethal injection is a near-painless death.”

Doctors cannot ethically participate in an execution so there is no way for them to assure sufficient anaesthesia is being administered. The report's researchers thus conclude:

...until better protocols are developed and tested and those delivering the executions are better trained to assure it is performed in a humane and competent fashion, execution by lethal injection should be stopped to prevent unnecessary cruelty and suffering.

Death Penalty Voted Down by New York Assembly

Update: Three Cheers for New York Assemblypersons!

The New York State Assembly Codes Committee today defeated a bill to reinstate New York’s death penalty. The vote comes after five full days of public testimony that the death penalty is riddled with flaws and wastes millions of dollars. The Assembly’s report of the hearing was released last week, adding to a growing wave of voices questioning the death penalty across the country.

“New York is not alone. There is a growing consensus in this country

that as a matter of policy, the death penalty is an expensive failure,” said Shari Silberstein, Co-Director of the Quixote Center, a national faith-based organization working for a moratorium on executions while questions of fairness are studied and addressed.

**********

Original Post: 4/11/05

There will be a historic vote in the New York Assembly tomorrow on whether the state's death penalty should be reinstated.

New York's death penalty was declared unconstitutional last year. Tuesday, the 18-member Assembly Codes Committee will vote on a " quick fix." A current head count by various justice organizations shows that the "fix" likely will be deleted, effectively killing New York's death penalty for the remainder of this legislative session.

Network for Justice provides the reasons why the bill should be defeated:

• The law has been applied unfairly,
• Innocent people have been sentenced to death,
• It codifies violence and vengeance as instruments of public policy.
• Since 1995, at least $200 million has been wasted on capital punishment that could have been invested in crime prevention, law enforcement, and victims' assistance.

The death penalty does not deter others from committing violent crimes nor does it bring closure to victims. It is ineffective and unjust, both discriminatory and wasteful of resources that should be used for crime prevention and victims' services. This issue is critical in determining fair and equal justice for all New York.

The full report is available here. Your help is still needed. Here's what you can do:

• If you are in the Albany area: The Codes Committee session is open to the public in room 342 of the Capitol Building in Albany beginning at 11 am. Please attend to show your support for the Committee's rejection of the death penalty!
• Convey your thanks to forward-thinking politicians: Contact Assembly Speaker Sheldon Silver at 518-455-3791FREE or speaker@assembly.state.ny.us and thank him for holding hearings on the death penalty!
• After the vote, send a letter to the editor of a New York paper thanking the Codes committee for its vote.

Upsetting Ms. Malkin: Why Death Row Inmates Should Have Blogs

Conservative blogger Michelle Malkin criticizes my enthusiasm for Meet Vernon, the first blog by a death row inmate.

Probably, she would not appreciate that I sometimes speak to students as young as those in middle school about the humanity of death row inmates, showing them blown-up images of several of those included in the 2000 Benneton campaign, " We on Death Row" and reading parts of their interviews. Nor would Ms. Malkin appreciate the "thank you" letters I've received from the teachers and students who've listened to my talk and were moved by the experience of viewing the actual faces of those of death row and hearing their words.

Ms. Malkin quips that she doesn't want to hear the condemned talk about their IPods or their razors or cameras. Of course, that's not what they talk about. They talk about their hopes, their fears, their lost dreams, their remorse, their nightmares. They talk about what it's like to know with certainty that the state is going to kill you, how they've messed up their lives, the things they miss, the people they've loved, their religion, their mothers, their children...and more.

Sears Roebuck didn't appreciate the Benneton campaign at the time and pulled the clothing line from their stores. My response to Sears was to call for a boycott of their stores. Crime victims didn't like that Benneton bought billboard space to display the campaign and ultimately, Benneton took them down. The Attorney General of Missouri sued. When the campaign began, all 96 pages of it was on the Internet. Now, you can't find the campaign online anywhere. It is as if it's been censored out of existence. I still have several copies, and this site still carries the press release to the campaign. Here's a portion:

Leaving aside any social, political, judicial or moral consideration, this project aims at showing to the public the reality of capital punishment, so that no one around the world, will consider the death penalty neither as a distant problem nor as news that occasionally appears on TV. Toscani's images aim at giving back a human face to the prisoners on death row, to remind those "respectable ppeople (who) are always so sure they're right..."(1) that the debate conerns men and women in flesh and blood, not virtual characters eliminated or spared with a simple click as with a videogame.

The campaign will appear on billboards and on the pages of the major news publications in Europe, America and Asia in January 2000. ... With this new initiative, Benetton has once again chosen to look reality in the face by tackling a social issue, as it did in previous campaigns that focused on war, Aids, discrimination and racism. Bitterly attacked by some and internationally acclaimed by others, Benetton's campaigns have managed to tear down the wall of indifference contributing at raising the awareness of universal problems among world's citizens. At the same time, they have paved the way for innovative modes of corporate communication

Here is one of the few places you can still read about the campaign.

Another consideration is the way capital punishment is routinely applied ­ anonymously, quietly, by men in white coats, in some prison basement, away from public view. Few people ever witness the event, and photos and cameras are banned. The net impact is that the public gets off easy ­ they can support capital punishment, without ever having to confront its effect: the state taking an individual's life.

Benetton's genius is that they turn the entire situation around. By focusing on the inmate's faces, his prison clothes, the bars in his cell, as well as most other indications of his social status are cropped out of the picture. The viewer no longer "knows" that he is looking at a guilty criminal, he is left to confront the man, as well as the question: why is he going to die?

Complaints that the ad campaign is unsympathetic to the murder victims are exaggerated. Asking society to change a death sentence to life imprisonment, is a perfectly valid request and need not have a bearing on the victim's loved ones. It is also disingenuous to imply, as many did, that Benetton was under obligation to mention the inmate's crimes, as well as their victims in the ads. This is advocacy advertising -- after all, when a car company runs an ad campaign, they don't show the car accidents.

The faces and stories of those on death row show what the present is like for those without a future. When a death row inmate has a blog, it brings the reality of the death penalty right to the American public. If every death row inmate had a blog, people would no longer be able to view the death penalty as somebody else's problem, as merely something that makes the news once in a while. These blogs would be googled and spidered the same as mine and Ms. Malkin's, and the public would see that death row inmates are human too.

TalkLeft has endorsed pen pal efforts for those awaiting execution. Providing death row inmates with blogs takes it one step further, as Benneton did so courageously five years ago. If every death row inmate had a blog, perhaps the wall of indifference would come tumbling down. Perhaps we would engage in more meaningful dialogue about whether the death penalty is ever justified. Perhaps public opinion would turn against the death penalty more quickly, and we would hasten the day when America is no longer the only civilized nation in the world to continue to kill its citizens in the name of justice, while hypocritically asserting it promotes a culture of life.

CrimProf Blog writes:

April 14, 2005

New Report Says Inmates Conscious After Being Administered Execution Cocktail

From Talkleft.com: "A new report by the University of Miami Leonard M. Miller School of Medicine, published in The Lancet, the prestigious British medical journal, raises serious concerns that prisoners being executed likely are conscious after being administered the lethal drug cocktail that kills them." More . . . [Mark Godsey]

Abolish the Death Penalty

Today's news

This is usually a "no-spin zone," meaning we don't post press releases on this blog. Today, for the first time, due to the gravity and complicated nature of this issue, I am making an exception.

This is from NCADP:

NCADP RAISES CONCERN ABOUT LETHAL INJECTION

PROCESS IN LIGHT OF MEDICAL JOURNAL REPORT

April 13, 2005 – The National Coalition to Abolish the Death Penalty today expressed concern over a medical journal report that suggests that in a significant number of cases, condemned prisoners are likely conscious as lethal drugs stop their heart and lungs from functioning.

Today a prestigious British medical journal, The Lancet, published an article authored by three U.S. anesthesiologists and one lawyer. The article suggested that some people may be awake and able to feel pain during the execution process, despite the administration of sodium thiopental, which is designed to render a person unconscious while two other drugs are given.

The authors studied toxicology reports from 49 executed inmates – seven in Arizona, eight in Georgia, 11 in North Carolina and 23 in South Carolina. They found that 43 out of the 49 inmates had post-mortem blood thiopental levels below that required for surgery. And 21 inmates had levels consistent with awareness. “Thus,” the authors concluded, “lethal injection anesthesia methodology is flawed and some inmates might have experienced awareness and suffering during execution.”

Diann Rust-Tierney, NCADP executive director, said the report “adds to a growing list of concerns about how the death penalty really works.”

“This report suggests that in a disturbing number of cases, states may be violating the constitutional ban on cruel and unusual punishment by slowly suffocating prisoners while they are awake,” Rust-Tierney said. “Clearly we need to take a closer look at this issue. No lethal injection executions should take place if there is a possibility that we are engaging in death by the torture of suffocation.”

In most states, lethal injection executions consist of administration of three drugs. First, sodium thiopental is administered to render the prisoner unconscious. Then, pancuronium bromide is administered to cause paralysis. Finally, potassium chloride is given to stop the heart, thus causing death. “Without anesthesia,” the authors write, “the condemned person would experience asphyxiation, a severe burning sensation, massive muscle cramping and finally cardiac arrest. Thus anesthesia is necessary both to mitigate the suffering of the condemned and to preserve public opinion that lethal injection is a near-painless death.”

The article was authored by Leonidas G. Koniaris, Teresa A. Zimmers and David A. Lubarsky of the University of Miami School of Medicine and Virginia attorney Jonathan P. Sheldon.

NOTE TO EDITORS, REPORTERS AND PRODUCERS: To obtain a copy of the report please email David Elliot at delliot@ncadp.org or call 202-543-9577 FREE.

To read a University of Miami Leonard M. Miller School of Medicine press release on the report, please go here.

AI gathering in Austin

While we're on the subject of blogs, I stumbled across this write-up of last weekend's Amnesty International gathering in Austin. The item comes from what I gather to be a relatively new blog, Faith-Based Politics.

The weekend sounds like it was nice, especially the Friday rally that was sponsored by Amnesty International and our Texas affiliate, the Texas Coalition to Abolish the Death Penalty.

Interesting new blog

Courtesy of Grits for Breakfast, we learned this morning of an interesting new blog. Injustice Anywhere was just launched by a public defender down in my home state of Texas. As she describes her blog:

Inspired by the late, great Johnnie Cochran's saying that, "An injustice anywhere is a threat to justice everywhere," a Texas public defender rants and raves about criminal justice issues in her great state and country (and whatever else she wants).

This is a worthy endeavor.

# posted by David Elliot @ 11:18 AM 0 comments

Watch this space tomorrow...

...for some interesting news and a new development regarding lethal injection as a means of execution.

Jotaka in Geneva

My colleague, Jotaka Eaddy, is currently in Geneva doing lobbying/organizing work during the U.N. Commission on Human Rights. Many in the U.S. are not aware of the work of the U.N. Commission's work. They meet for five weeks every spring to discuss and debate human rights issues around the world, including the death penalty. Last year, in part because of Jotaka's work, they passed a resolution strengthening their opposition to the juvenile death penalty.

Here's an excerpt from a recent email Jotaka sent about her experience:

Working in the UN is absolutely amazing. It is like lobbying Congress but on a much larger scale because you are lobbying entire countries. I try not to let it intimidate me....I have been very successful in lobbying for language that prohibits the death penalty for people with mental illness in the new Convention (Treaty) that is being drafted in the UN. I’ve met with many governmental delegations that are now going to lobby on behalf of us!! There is much follow up work to be done at the UN in New York. But I am certain that if we are successful this will have a major impact on any Supreme Court Case dealing with this issue in the next three to five years.

[....]

I have to pinch myself sometimes when I stop and think about what I am doing. Never in a million years did I think that I would be working to advance and working with countries to offer language to UN treaties. I am truly blessed to be so young and working on a serious level to advance international human rights policy. The UN is also a great place to meet many wonderful activists from all over the world. I am so amazed at the work that many people are doing to defend human rights. There are nearly 2,000 governmental delegates, UN Staff and experts, and NGO lobbyists here so you can imagine the networking going on. It is also very moving to meet other people that have spent their whole lives fighting on issues that are either the same or very common to the struggles that we have in the U.S., yet there they are in other parts of the world. Sadly you soon realize over here that racism, discrimination, sexism, homophobia and other human rights violations have no borders. I do hope that we as advocates quickly realize that our efforts should have no borders as well.

Blog input, Part 3

Recently we invited NCADP members and supporters to send in their stories about the death penalty. Previously, we heard from one woman in Washington State and another woman in New York.

Today we hear from a man from New Zealand, who is befriending a person on death row in Georgia as well as that person’s mother. Here is his story, split into three parts for the sake of our readers:

The Story of William David Riley, as told by Brian Bowler of New Zealand.

Trolling through the Internet one evening I came across an ad asking for “someone prepared to write to a lonely man on Death Row.” My first reaction was to hurry past, which I did. I told myself that you would write to someone, build up some sort of relationship, and then suddenly it is all going to end, and you will know the reason why, and you won’t sleep for days. Then a little voice inside me kept saying, “If you feel like this, how do you think the man is feeling?” The little voice wouldn't leave me alone and eventually I retraced my steps and sent off an e-mail. The ad was placed by a lady I assumed to be a social worker or some such. I was very surprised to receive a reply from the mother of the prisoner.

She turned out to be a splendid lady, absolutely committed to her son and unshakably convinced of his innocence. We exchanged a few e-mails and then I sent off my first letter to her son, ordinary post, no e-mail allowed in the prison. I stayed in touch with his mother and felt drawn to this lady who had dedicated her life to trying to save her son. I said to her, “I want to stand by you while you go through your struggle, how ever long it takes, whatever the pain, whatever the outcome.” At this stage I had no opinion of my own of the guilt or innocence of her son, and strangely it didn't seem to matter.

Eventually she told me the story of her son’s case. He was a 32-year-old married man with three children. He was estranged from his wife who had unquestioningly signed over full custody of the children to him. Clearly she was confident in his ability to raise them.

Part 2: the story of William David Riley

As told by Brian Bowler of New Zealand:

At approximately 10:45 a.m. on Aug. 18, 2000, a fire broke out in a trailer at Pine Valley Mobile Home park. The trailer was rented by Bill who lived there with his girlfriend and the three children, Ashley aged 6, William aged 5 and Samantha aged three. A friend of Bill's was also living there and sleeping on a couch. All three adults escaped, all three children died.

Neighbors reported that during the fire Bill seemed unemotional, cold and dry. In reality he was in shock, traumatized and incapable of reacting. Not thinking logically and in a frenzy he began banging on the trailer walls and yelling to his children. His car was parked close to the trailer and fearing that it might explode and add to the danger he moved it away. He threw a piece of timber though one of the windows. All this was irrational, but Bill was not in a rational frame of mind.

You may very well think that given the same circumstances you would have reacted differently, but in the grip of shock the mind can freeze.

Neighbors reported that there were arguments prior to the fire between Bill and his girlfriend, and this is not an issue. Bill was having serious financial hardship and with the girlfriend not helping to economize it led to disagreements. The alleged threats to kill the children have to take into account the circumstances in which they were made, the tone of voice etc. Saying that he would see them dead before he would let the Department of Family and Children Service take them, can be construed not so much as a threat to kill them but an indication of how much he cared for them.

The expressed intention to burn the trailer rather than face eviction, even if taken seriously, does not imply an intention to burn the children. In truth the statement was a throw away remark intended to mean nothing more than that he would resist attempts to evict him.

Part 3: The story of William David Riler

As told by Brian Bowler of New Zealand:

Still in shock he is questioned by the police who tell him that they have hard evidence of arson and that if he will confess they will help him. Eventually he breaks down and makes a false statement. It is the false statement that ensures his conviction. During this time he is accorded neither the customary phone call nor is he provided with legal assistance. He is put on trial and it takes the jury 42 minutes to convict him. He is sentenced to death by lethal injection and is currently on Death Row in a Georgia State prison. He has had one appeal denied and is allowed a further ten. It can be noted that the Fire Marshal found no evidence of arson and I understand that a report to this effect is in existence. There are a number of public interest issues at stake here:

(1) Why was he not allowed a phone call?

(2) Why was he not provided with legal assistance?

(3) Was the Fire Marshal's report produced in evidence during the court proceedings?

(4) Is there no protection under the Fifth Amendment or any other act from confessions obtained in this manner?

(5) Has Bill had a fair trial?

(6) Has justice been served?

In the meantime Bill's mother and I have initiated a letter-writing campaign to see if we can elicit any assistance. We have written to the defence attorneys, the State Governor, The State Attorney General, President Bush, The American Bar Association and ten university Law Faculties to se whether they will review the case as an exercise for students. We will try anything how ever tenuous the promise of help may be. If anyone can suggest any further avenues that we might explore I would be indebted to hear from them.

Brian Bowler

brianbowler@e3.co.nz

Another new blog in town!

Folks: Last week we wrote about what at the time was a first: A blog dedicated specifically to a person on death row. That blog was launched by a woman named Ginny Simmons, who I think is with the Campaign to End the Death Penalty. It is dedicated to Vernon Evans, who is on Maryland's death row. You can see her blog and "meet Vernon Evans" by going here.

Now we have another blog dedicated to another death row inmate. This is dedicated to Robert Fratta, a wrongfully convicted person on Texas' death row. I do not know who launched this blog, although I see she is from New York State.

To see this new blog, go here.

Input for the blog, part one

We recently invited NCADP members to send us any blog-worthy material they have with the promise that we would post it. Here's a great message we received from Nina in Washington state:

Hi, I have been writing to several men on death row, in Arizona and in Montana. I started doing "Prison Ministry" shortly after seeing "Dead Man Walking," then I had the pleasure of going to a seminar given in Seattle by Sister Helen PreJean. Back in 1992, I started writing to two brothers, on Death Row in AZ. They are still there and are doing as well as can be expected. Roger and Robert Murray were convicted of murder back in 1991 in Kingman, AZ on their way home from a trip to Las Vagas, NV. I don't judge anyone for their offenses, simply because I wasn't there. Robert Murray has written a book, a couple years old now, called, "Life on Death Row." It can be found in bookstores or on Amazon.com ~ it is a very good read!

He is now busy writing his biography, which should be great!

Thank you for reading this and God bless!

In peace,

Nina Hall

Input for the blog, part two

And we received this message, from Megan Clifford in Rochester, New York. Please write Megan if you can help her out!

Hello!

I am a former Jesuit Volunteer who was matched up with Robert Simon Jr. (Mississippi death row) in 1996 for a ministry-type of correspondance. I have written to him ever since. Robert asked me awhile back to contact his attorney so that I could have information on his case. He was anxious about exhausting his appeals and was requesting I make funeral arrangements. I am sure this is premature but would like some information. He signed a release and also sent letter to his attorney requesting that he give me permission to talk about his case. Being that I live in New York and the prision reads all the letters Robert sends me I have a hard time getting access to news about his case. Can you post this on the blog to see if anyone can help me. I have some friends who are attorneys who are interested in helping me review his case if I can get access to some information. I can be reached at meganaclifford@hotmail.com

Thank you-

Megan Clifford

Rochester NY

Sentencing Law and Policy Notes:

Another morning of interesting sentencing news

Just like yesterday, this morning's newspapers brings an array of interesting and important sentencing reports:

• This article from Washington provides a detailed and intriguing report on a "sentencing phase" jury trial convened to find facts to support an aggravated sentence following a defendant's guilty plea to second-degree murder in a child abuse case.
• This article from Utah reports on a Booker remand from the 10th Circuit, and gives particular attention to the defendant's cooperation (which, by the way, was a central feature of all the 8th Circuit's Booker work yesterday detailed here).
• This article from the New York Times about Eric Rudolph's plea deal, which took the death penalty off the table, provides food-for-thought about whether the real benefit derived from the death penalty comes from its impact on plea bargaining. TalkLeft has this interesting post about the Rudolph deal, which includes a lists of infamous defendants that will likely be sharing a federal prison with Rudolph.

Lots of interesting sentencing items in the papers

An array of newspaper articles this morning covers an array of interesting and important sentencing topics:

• This article from the New York Times reports on yesterday's vote by the New York State Assembly Codes Committee to defeat a bill to reinstate New York's death penalty. The article spotlights the potential national significance of this development, and it also discusses some of the political issues I have recently spotlighted here and here.
• Reporting on recent circuit Booker action, this article spotlights a high-profile Booker remand from the 8th Circuit, and this article discusses the 2d Circuit's decision in Guzman finding that Booker is not to be applied retroactively to cases on collateral review (previously discussed here).
• Reporting on cooperation's role in federal sentencing, this article from New Jersey discusses a reduced sentence for one "productive informant," and this article from New Hampshire examines more broadly the sentencing impact of cooperation.

Contrasting sentencing politics

Commenting on my talk yesterday at Minnesota Law School about forging a new sentencing politics ( details here), Professor Richard Frase rightly commented that the politics of sentencing at the state level is much more balanced than at the federal level. Professor Rachel Barkow makes the same astute point in her forthcoming Columbia article on "Federalism and the Politics of Sentencing."

A number of events today document the contrast between sentencing politics at the state and federal levels. The development and hearing on H.R. 1528, the federal drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and here and here), reveals that the "tough-on-crime" politics of recent years still has purchase in the federal system. But from the states we get the news from TalkLeft here that the New York State Assembly Codes Committee today defeated a bill to reinstate New York's death penalty, and news from Grits for Breakfast here that a conservative think tank in Texas is actively discussing "how to increase the effectiveness of alternatives to incarceration that will play a greater role in the state's criminal justice system."

Notable death penalty stories

Though the Booker legislative developments have my attention, a few notable death penalty items merit mention. From the legislative arena, TalkLeft has all the details here on the planned vote in the New York Assembly Tuesday on whether the state's death penalty should be reinstated. And from the judicial arena, law.com has this fascinating article which explains that an "increasingly conservative 9th Circuit is growing less receptive to capital claims."

Death penalty items around the blogsphere

A few items concerning the death penalty have caught my eye around the blogsphere:

• The Connecticut Law Blog is covering, as their name would suggest, Connecticut death penalty developments with posts here and here and here reporting on the hearing concerning death row volunteer Michael Ross's competency and a post here on a proposed amendment to the state's death penalty law.
• Dan Markel at PrawfsBlawg discusses here his forthcoming article on the death penalty and also promises future commentary on the recent death penalty article by Professors Sunstein and Vermeule suggesting capital punishment might be morally required, which I noted here and critiqued here.

Lonely Abolitionist notes:

Wednesday, April 13, 2005

New York State

Good news, gang. A committee of the New York State Assembly has voted not to send the proposed bill reinstating the New York State death penalty to the full House for consideration. For now, this has "killed" the bill. It is very unlikely that the full New York Assembly will consider the issue again this session.

New York State Assembly Kills Death Penalty Bill

Volokh Conspiracy rants in a fairly weak screed about why Roper v. Simmons is a bad, bad, bad decision:

Foreign Law and the Culture Wars: In an essay at American Prospect Online, Deb Pearlstein argues that it is perfectly normal for the U.S. Supreme Court to discuss and cite to foreign law in the course of interpreting the U.S. Constitution — and that conservative opposition to the practice is groundless:

Like the bogeyman critique of "judicial activism," "foreign law" seems to have become the latest stand-in straw man for those who aim to cast fundamentally political opposition as a principled objection. It is hard not to conclude that vocal opponents of "foreign law" are driven less by any real threat to U.S. legal sovereignty than by the fear that even a conservative judge might embrace a legal rule with which they disagree. But that danger is also long known to the United States; it is the necessary price of the rule of law.

I think Pearlstein misses the point. The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.

Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars.

If you're unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible. In particular, let's imagine that Roper v. Simmons had come out the other way, and that Justice Kennedy's opinion for the Court upholding the death penalty for 16 and 17 year olds had contained the following passage:

Our determination that the death penalty is proper punishment for offenders under 18 finds confirmation in the fact that such punishment is recognized in the Judeo-Christian Bible. The Bible repeatedly requires capital punishment for many offenses, and nowhere limits this punishment to those 18 years of age. See, e.g., Levitucus 24:17 ("He that killeth any man shall surely be put to death."); Exodus 21:16 ("And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."). Indeed, the death penalty is mandatory for a number of affronts against parents, which presumably would encompass many offenses by minors. See, e.g., Exodus 21:17 ("And he that curseth his father, or his mother, shall surely be put to death."); Exodus 21:15 ("And he that smiteth his father, or his mother, shall be surely put to death.").

This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet our ancient traditions and cultural heritage are instructive for the Court's interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments." It is proper that we acknowledge the overwhelming weight of authority in the Bible in favor of the juvenile death penalty. Cf. Zorach v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being."). The opinion of our Judeo-Christian traditions, while not controlling our outcome, does provide respected and significant confirmation for our own conclusion. It does not lessen our fidelity to the Constitution to acknowledge that the express affirmation of certain fundamental rights recognized from the time of Abraham simply underscores the centrality of those same rights within our own heritage of freedom.

My sense is that most people who have no problem with the Court citing foreign law would blow a gasket if this passage appeared in the United States Reports. You can imagine the reaction: What on Earth gave the Supreme Court the idea that they can rely on the Bible? This is the Constitution, not church! If some people want to believe in the Bible, that's up to them, but this is America and they can't foist that Bible stuff on me! Why the strong reaction? Not because "liberals" really only object to "conservative" results (although you can imagine the NRO column making this argument, can't you?). The reason, I think, is that Biblical text tends to be associated with one side of the sociopolitical divide and is not a traditional source of constitutional guidance. As a result, seeking "confirmation" of a constitutional holding in the Bible would send a message that the Justices are not just interpreting the Constitution — they would be doing more, expressing personal views as to which side of the sociopolitical divide they see as their own.

To be sure, the analogy between foreign law as authority and the Bible as authority isn't perfect. I realize that. But I think it does capture why some conservatives feel so strongly about citations to foreign law in Supreme Court opinions.