March 2009

This month, the United States Supreme Court declined to hear a well-watched Florida case, Thompson v. McNeil (08-7369), where William Lee Thompson, sentenced to death in a Florida court back in 1976, requested their consideration of the question: does extended delay of the sentence of death amount to cruel (if not unusual) punishment and therefore violate the 8th Amendment?

Well, the High Court did fail to grant writ (opinion), but that doesn’t mean we don’t have a lot to consider from the opinion that did spring forth. Let’s ponder the following:

Justice John Paul Stevens’ Statement

First, I’ve read that Justice John Paul Stevens issued a dissent in this case; however, technically it was not a dissent but a statement. And, a statement that conforms to his longstanding position that the the death penalty is wrong. (Stevens already called for an end to the death penalty.)

In it, Stevens wrote, “[o]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel,” to which Justice Stephen Breyer gave his support in a formal dissent from the denial of certiorari.

Justice Stephen Breyer’s Dissent

In his dissent, Breyer went into the appellate pathways that the Williamson case has taken over the past 30+ years, including such considerations as the fact that Williamson’s spent over half his life on Death Row while the appeals have taken a life all their own, and the reality that Williamson’s accomplice – who might have been more culpable than Williamson in the underlying crime – was not sentenced to death. Interesting point.

Justice Clarence Thomas’ Concurrence

Justice Clarence Thomas, meanwhile, wrote his own concurrence to the Court’s denial of certiorari. In it, Thomas opined “”[i]t is the crime and not the punishment imposed by the jury or the delay in execution that was ‘unacceptably cruel, …” and thereafter provided extensive details on the underlying crime for which Thompson was convicted to support his position. (It is not disputed that the crime for which Thompson was convicted was shocking.)

Why Isn’t This Cruel – If Not Unusual? Oh, and What About the Budget?
Continue Reading U.S. Supreme Court nixes hearing Thompson v. McNeil (08-7369) – but does 32 years in a Death Row cell amount to cruel and unusual punishment?

FACDL Death Penalty Seminar, Day 1:

This weekend, I am attending the Florida Association of Criminal Defense Lawyer’s 15th Annual Death Penalty Seminar. This is an annual event that I have often attended since its inception. It is an opportunity for death penalty lawyers to share tactics, techniques, and review the latest developments in the law.

Steve Potolsky, a renowned criminal defense lawyer who was on the team in the first Federal death penalty case tried in Florida, started the seminar with a discussion of national attitudes toward the death penalty Steve asserted that we are entering a period of national reconsideration for the death penalty and cited several reasons for the decline in death sentences nationally. Among these are increased publilcity surrounding exoneration by DNA evidence and the fact that many states have done away with the possibility of parole or early release in such cases. He noted that New Hampshire repealed the death penalty.
Continue Reading Update – 1: the FACDL (Florida Association of Criminal Defense Lawyers) Death Is Different 15th Annual Death Penalty Seminar

As stated earlier, a separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy. The trial judge performs the next step by actually determining the sentence. Although the trial judge gives great weight to the jury recommendation, the trial judge is not bound by the jury’s recommendation.

A trial judge has more experience in both the criminal process and facts of crimes themselves. What the average person, inexperienced in crimes, thinks is incredibly significant or especially heinous, may not in balance be so significant or heinous. The cool reasoning of a judge also serves to counterbalance any overly inflammatory prosecution.
Continue Reading In Depth Look: Death in Florida – 3

Effective July 1, 2009, there will be no death penalty in New Mexico. Capital punishment will still apply to any capital crimes committed between now and midnight on June 30th. – and there has been no change in the punishment of death for the two men currently residing on New Mexico’s Death Row.

Albuquerque’s Sheriff Darren White Leading an Effort to Put It to a State-Wide Vote

Not everyone in New Mexico is pleased with this development. Sheriff Darren White is reportedly investigating the possibility of putting capital punishment to a full state-wide vote, which would enact an amendment to the New Mexico constitution approving of the death penalty for certain types of crimes.

According to Sheriff White, he’s undertaking this action because of the large number of phone calls he’s received from the citizenry, who are upset about the change. White says that state polls show a majority of New Mexicans are in favor of capital punishment.

Undoubtedly, Sheriff White will be assisted and supported by prosecutors across the state, as well as the New Mexico Sheriffs’ and Police Association, as well as other law enforcement organizations that were against the New Mexico repeal efforts.

What About the Two Men on New Mexico’s Death Row?

Since 1933, New Mexico has executed nine (9) individuals – all men – using three different methods : one by gas, one by lethal injection, the rest by electric chair. That’s not a high death rate.
Continue Reading New Mexico Repeals Death Penalty

The mitigating circumstances that can apply in any given first degree murder case are those set forth in Florida Statute § 921.141(6):

1. § 921.141(6)(a): The defendant has no significant history of prior criminal history.

2. § 921.141(6)(b): The capital felony was committed while the defendant was under influence of extreme mental or emotional disturbance.…

Maryland, like many other states, is reviewing its death penalty laws for purely cost-cutting reasons. However, there’s something to be considered in the current media coverage of the Maryland debates – which are going on right now.

Why are the Maryland arguments so interesting to consider?

This is a particularly interesting jurisdiction to ponder since Maryland has the second-highest murder rate in the nation – due in large part to the homicide rates for the metropolitan area making up Baltimore, Maryland.

In other words, the argument can be made that these homicide rates suggest that there would be more opportunities for imposing the death penalty in Maryland than in other locations where violent crime rate are much lower (say, Montana).

What’s happening this week?

The Maryland lawmakers are hearing testimony and tinkering with language as they consider enacting new Maryland law on capital punishment.

With this background, consider these high profile arguments being made:
Continue Reading Looking at the Current Fight over the Death Penalty in the State of Maryland

Historically, the variety of methods for imposing capital punishment seems almost endless. In the United States, our federal constitution forbids any form of execution that is cruel and unusual punishment, however, and this has led us to careful consideration about the practicalities the state must address when it kills someone in punishment for a crime that has been committed.

Currently, only five methods of execution have passed constitutional muster:

Firing Squad

Today, Utah still gives the prisoner the option of choosing the firing squad over lethal injection – if they made their choice before Utah law abolished the firing squad as an alternative method of execution. Idaho and Oklahoma also approve of the firing squad as a method of execution.

Electrocution

Nine states execute(d) by electrocution (electric chair). These are Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia.

Gas Chamber

Five states allow(ed) execution by gas chamber. These are Arizona, California, Maryland, Missouri, and Wyoming.

Hanging

Two states still approve(d) of execution by hanging. These are New Hampshire and Washington.

Lethal Injection

For thirty-five (35) states, plus the U.S. Military and the federal government, lethal injection is the approved method of execution. For those states listed above that approve different methods of execution, they all allow for lethal injection as an alternative.
Continue Reading Forms of Capital Punishment: the Legal Methods of Executing a Death Penalty Sentence in the U.S. Today