Virginia's electric chair
Electric chair at the Virginia Penitentiary in Richmond, Virginia. Designed and installed by Adams Electric Co., Trenton, New Jersey. (Credit: Library of Virginia) (Image provided by State of Virginia in News Release 03/24/21)

On March 24, 2021, the State of Virginia became the 23rd state in the United States to end capital punishment.  The two men who sit on Virginia’s Death Row, Anthony Joiner and Thomas Porter, will have their sentences commuted to LWOP (life without parole).  For more, read “Virginia, with 2nd-most executions, outlaws death penalty,” written by Denise Lavoie and published by the Associated Press on March 24, 2021.

Among the reasons cited by the State of Virginia in its news release yesterday is the issue of race in capital punishment, explaining (emphasis added):

Studies have shown that a defendant is more than three times as likely to be sentenced to death if the victim of a crime is White, than if the victim is Black. In the twentieth century, 296 of the 377 defendants that Virginia executed were Black. Of the 113 individuals who have been executed in Virginia since the Supreme Court reinstated the death penalty in 1976, 52 were Black.

From Virginia Governor Ralph Northam:

“Over our 400-year history, Virginia has executed more people than any other state.  The death penalty system is fundamentally flawed—it is inequitable, ineffective, and it has no place in this Commonwealth or this country. Virginia has come within days of executing innocent people, and Black defendants have been disproportionately sentenced to death. Abolishing this inhumane practice is the moral thing to do. This is a truly historic day for Virginia, and I am deeply grateful to those who have fought tirelessly and for generations to put an end to capital punishment in our Commonwealth.”

For more on issues surrounding the Death Penalty in this country, read:  Six Major Issues Concerning the Death Penalty.

 

 

Several different issues must be considered insofar as capital punishment in our country.  The Death Penalty today is a multi-faced concern where considerations must be given to the following:

1.  The Cost of Capital Punishment

For those focused upon finances and taxpayer dollars, the reality is that sentencing someone to death, rather that LWOP (life without parole), is very, very expensive.  LWOP costs less, so why not opt for it? Read:

2.  Lethal Injection and Alternative Execution Methods

Over the centuries, the state has used all sorts of methods to end the life of someone deemed worth of death by those in power.  Today, lethal injection is the common method used in our country to execute the condemned.  However, more and more it is being challenged as cruel and unusual punishment.  States do have options on the books that can substitute for lethal injections without any new legislation; among them, firing squads and gas chambers.  What is the most humane way to execute someone?  For more, see:

3.  Mental Illness and Intellectual Capacity

Mental illness must be considered not only at the time of the crime for which the condemned has been sentenced to die, but also at the time the execution is scheduled to take place.  A similar concept, but distinct from psychological issues, is the lack of understanding and comprehension that goes along with intellectual limitations.  Should someone who is mentally ill or intellectually challenged be executed?  Read:

4.  Race and Gender

Studies time and again reveal that the race of those sitting on our country’s Death Rows does not jive with the racial percentages of our population.  Why not?  And what about gender?  Women on Death Row are another controversial issue to be considered.  Read:

5.  Prosecutors and the Death Penalty

The power of prosecutors in death penalty cases cannot be underestimated.  First, it is the prosecutor who makes the decision to seek capital punishment at the trial level.  Second, it is the prosecutor who tries the case and determines what evidence is presented at trial (both guilt and penalty phases).  Finally, it is the prosecutor who has the ability to sway to results through ineptitude or immorality concerning the underlying investigation and discovery process.  See:

6.  Effective Defense Counsel

Finally, the defense lawyer who represents the individual who is being tried in a case where the state is seeking the Death Penalty has an enormous responsibility.  He or she must advocate in both a guilt-or-innocent trial as well as advancing mitigating factors in any subsequent penalty phase.  It is a tremendous burden, professionally and personally.  There is also the added pressure of financing.  Capital cases demand cost expenditures that quickly add up, from expert analysis for factual issues at trial to mitigating considerations at the sentencing hearing.  Read:

The March 2021 issue of National Geographic may have Mars on the cover, but its article on the death penalty is what drew us to the magazine this month.  Entitled “Sentenced to death, but innocent: These are stories of justice gone wrong,” and written by Phillip Morris, it delves into the shocking realities of innocent people who are nevertheless arrested, charged, convicted, and sentenced to death.  Great photography is included by Martin Schoeller.

Accompanying this work is an explanation from the Nat Geo editor, “Why We Reported on Death Row for the Exonerated,” but this is available only to magazine subscribers.  The Morris piece is free for you to read online.

It’s a recommended read.

This month, the question is raised once again about what the condemned actually experience when undergoing lethal injection, and whether or not this constitutes cruel and unusual punishment. It appears that the executioners’ perspective on what is taking place and those of the execution witnesses may be far, far different.  Read, “Executioners sanitized accounts of deaths in federal cases,” written by Michael Tarm and published by the Associated Press on February 17, 2021.

Pain and Cruel and Unusual Punishment

Of course, as Mr. Tarm points out and as we have discussed earlier, SCOTUS has made it clear that the U.S. Constitution does not provide for a pain-free execution.  The condemned can experience pain without it being in violation of constitutional protections against cruel and unusual punishment.  Read, Painful Executions are not Cruel and Unusual Punishment under the Eighth Amendment.

It’s also important to point out that different lethal executions use different drugs, alone or in combination.  The federal executions involved pentobarbital.  Used alone.

Pentobarbital has been criticized for use in executions because if it is improperly administered, it will cause pain.  And no one is sure its intensity.  Read, “Why the Justice Department’s Plan to Use a Single Drug for Lethal Injections Is Controversial,” written by Josiah Bates and published by Time Magazine on July 29, 2019.

We’ve discussed pentobarbital before.  You may recognize it as the drug that veterinarians commonly use to euthanize beloved pets.  Read, Pentobarbital Supply and Demand for Execution DrugsPentobarbital Shortage in Death Penalty Executions: The Continuing Problem of Finding Drugs for Lethal Injections; and Lethal Injections and Compounding Pharmacies: Why These Are Very Bad Sources of Supply.

How is pentobarbital so painful as to constitute cruel and unusual punishment?

The argument, as described by Justice Sotomayor in her recent dissent in Barr v. Lee, 140 S. Ct. 2590 (2020), is as follows (emphasis added):

In light of this change, respondents alleged that the Government’s planned use of pentobarbital could result in needless pain and suffering in violation of the Eighth Amendment. Among other things, respondents proffered expert evidence that the majority of those injected with pentobarbital suffer flash pulmonary edema, which can lead to a sensation akin to drowning and “`extreme pain, terror, and panic.'” Id., at 10a.

 

As President Biden takes office, activists against the federal death penalty are hopeful that he will commute the death sentences of those who sit on the Federal Death Row.  See, e.g.,Dems Squad members try to save the worst killers of all: Pressley and Bush demand Biden commutes sentences of all 49 federal prisoners on death row, including Charleston church shooter Dylan Roof and Boston Marathon bomber Dzhokhar Tsarnaev, written by Martin Gould and published by the UK Daily Mail on January 26, 2021.

But what is commutation of a death sentence? And how does it differ from a resentencing hearing?

 

Commutation

Commutation is a form of clemency that stops the execution and ends the sentence of death.  It does not change the underlying criminal conviction:  the person is still considered guilty of the crimes for which he was tried and sentenced.  It is not a pardon.

Commutation substitutes a lesser penalty or sentence for that of capital punishment.  The power to commute a death sentence lies with different authorities, depending on the jurisdiction.  Florida, for example, requires the governor to have a recommendation to commute a death sentence from the Florida  Clemency Board before the governor can act.

Constitutionally, commutation is considered a part of the government’s power to pardon someone after they have been sentenced to death.

For more, read:

Resentencing Hearing

A resentencing hearing is a full evidentiary hearing where both the state and the defense present arguments and authorities to the judge who will decide whether to change the death sentence.  As with a commutation, the person is still considered guilty of the crimes for which he was tried and sentenced.

However, after the resentencing hearing the person may no longer face capital punishment.  His sentence may be modified to remove the death penalty.

In Florida, decisions by both the Supreme Court of the United States as well as the Florida Supreme Court have resulted in court-ordered resentencing hearings for many of those residing on Florida’s Death Row.

Terence Lenamon is one of the Florida capital defense lawyers involved in these resentencing hearings. See, e.g.: Florida Supreme Court: How Victory of Lenamon Client Michael James Jackson Impacts Future Death Penalty Defense.

For more on resentencing hearings in Florida, see: “Florida Supreme Court Overturns Precedent Throughout 2020,” published by the American Bar Association Death Penalty Representation Project on January 26, 2021.

Also see:

Recommended Video:  a February 2016 TED Talk given by Nick McKeown, a Professor of Computer Science and Electrical Engineering at Stanford University. As a college student in the United Kingdom, McKeown ran the UK student chapter of Amnesty International, and since 1999, Nick has fought to end the death penalty in the United States.

Some of the data is dated, but sadly much of it rings as true today as it did five years ago. One particular importance, his discussion of the power in small steps – like writing a letter – in these cases.

Another important takeaway: the misconduct of law enforcement and the correspondingly extreme importance of experienced, impassioned, and dedicated capital punishment defense attorneys.

Like Terence Lenamon.

Watch it here:

The Florida Supreme Court recently ruled in favor of death penalty reinstatement defense arguments in the capital case of Michael James Jackson, a case on Terence Lenamon’s trial docket back in April 2019.  For details, read “Hurst: Terence Lenamon Defending Michael Jackson in Jacksonville Beginning June 10, 2019.”

Florida attorney Maria Deliberato was appointed to the Jackson appeal.  Terry: “She did a great job!”

The Importance of Jackson to Florida Death Penalty Defense

In tandem with a decision involving the case of Florida Death Row inmate Bessman Okafor (State v. Okafor), the Michael James Jackson decision has confirmed the right to capital resentencing hearings in the aftermath of Hurst.

These decisions resolve the impact of State v. Poole, a Florida Supreme Court decision that came down in January 2020.  Prosecutors read Poole as an argument for rescinding orders granting Florida Death Row inmates new sentencing trials.

Jackson, together with Okafor, confirms the defense position that in Florida, these inmates are entitled to resentencing hearings before the death penalty can be reinstated in their case.

In Jackson, the State of Florida sought an extraordinary writ from the Florida Supreme Court directing the circuit court to dismiss Jackson’s penalty phase trial / resentencing hearing, while reinstating his vacated death sentence.  As an alternative, the State of Florida sought a writ of prohibition to block the circuit court from holding the resentencing hearing / penalty phase trial under the argument that Jackson’s death sentence could not be reinstated retroactively.

For the successful defense arguments presented in the Jackson matter, read Maria Deliberato’s Response to Emergency All Writs Petition and Petition for Writ of Prohibition filed April 2, 2020, which includes the following:

The State’s Petition is a thinly veiled attempt at a belated appeal — 970 days after Mr. Jackson’s two 8-4 advisory death recommendations were vacated. The State does not possess the right to a belated appeal under any equitable, statutory, or legal authority. But for Hurricane Dorian, which forced the closure of the Duval County courts and caused Mr. Jackson’s September 2019 penalty phase trial to be postponed at the last minute, his resentencing would already be complete.

Despite the State’s arguments to the contrary, this Court’s ultimate jurisdiction over death penalty cases is not in jeopardy. Granting the Petition would not only be a violation of Mr. Jackson’s due process, equal protection, Sixth Amendment, and Eighth Amendment rights, but would also result in this Court ignoring or reversing decades-long precedent regarding finality of judgments and affirmative waivers of appellate remedies. The effect would be to destabilize Florida’s entire judicial system. This Court should deny the Petition and remand Mr. Jackson’s case to the circuit court to conduct his previously scheduled penalty phase trial.

Response, page 3.

For more on Florida resentencing issues in death penalty cases in the aftermath of the Supreme Court of United States’ ruling in Hurst v. Florida, see:

 

The Death Penalty Information Center has released the annual year-end report: it’s a recommended read.

In the 2020 Year End Report from the Death Penalty Information Center, perhaps the most shocking revelation is its tally of ten (10) executions within a five (5) month time period by the federal government. These are civilian executions, not involving the military.  For more on that distinction read our earlier post, 10 Things to Know About U.S. Death Penalty in First Half 2020.
The Report points out that in 2020, for the first time in our nation’s history, the federal government executed more people than all the states — combined.
  • Every prisoner executed this year was age 21 or younger at the offense or had at least one of the following impairments: significant evidence of mental illness (8); evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range (6); chronic serious childhood trauma, neglect, and/or abuse (14).
  • Five people were exonerated from death row in 2020, bringing the number of people exonerated from death row to 172 since 1973. In each of the five cases, prosecutorial misconduct contributed to the wrongful conviction.
  • With Colorado abolishing capital punishment this year, more than two-thirds of states (34) have either repealed the death penalty or not carried out an execution in 10 years. According to Gallup, the 43 percent of people who opposed the death penalty in 2020 is the highest level of opposition since 1966.
  • Candidates pledging systemic reforms, including reduced use or abandonment of the death penalty, won prosecutor races in several jurisdictions that have historically produced a large number of death sentences: Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH). Across the county, reform prosecutors took the helm in counties comprising more than 12 percent of the nation’s death-row population.

For previous recommended reads, go here.