Death Penalty - States

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The Washington Supreme Court has found the death penalty to be unconstitutional because it violates the state constitution, specifically Article 1, Section 14, which states, “[e]xcessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”

State v. Gregory

From the opinion in State v. Gregory, No. 88086-7 (Wash. Oct. 11, 2018):

“The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered.  As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.”

Before this fuels great excitement regarding abolishing capital punishment in this country, it’s important to note that Gregory starts off with the following caveat:

Washington’s death penalty laws have been declared unconstitutional not once, not twice, but three times. State v. Baker, 81 Wn.2d 281, 501 P.2d 284 (1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979); State v. Frampton, 95 Wn.2d 469, 627 P.2d 922 (1981).[1] And today, we do so again. None of these prior decisions held that the death penalty is per se unconstitutional, nor do we. The death penalty is invalid because it is imposed in an arbitrary and racially biased manner. While this particular case provides an opportunity to specifically address racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. 

The Washington Supreme Court is not holding the death penalty “per se unconstitutional.”  Instead, it rules based upon how the state’s capital punishment law is carried out, and finds it is being “imposed in an arbitrary and racially biased manner.”

The administration of the state law by the state violates the state constitution, according to the state supreme court.

State Constitutional Holding Independent From Federal Constitution Application

The Washington Court takes great care to make sure that its ruling is clearly based solely upon its state constitution:

At the very least, article I, section 14 cannot provide for less protection than the Eighth Amendment, and in this case, we interpret it independently from the federal counterpart. Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles. See Long, 463 U.S. at 1041-42.

 

State Constitution vs. Federal Constitution

Some may be surprised that a state supreme court can make a ruling that can withstand United State Supreme Court scrutiny.  Well, aside from some procedural arguments there is the overall reality that state governments do exist independently from the federal government.  As long as a state supreme court reads its state constitution to be more protective than the federal counterpart, its ruling will hold.

This is discussed in its cited case of  Michigan v. Long,463 U.S. 1032, 1041-1042, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), where SCOTUS states:

The principle that we will not review judgments of state courts that rest on adequate and independent state grounds is based, in part, on “the limitations of our own jurisdiction.”  Herb v. Pitcairn, 324 U. S. 117, 125 (1945).

Will Gregory result in more capital punishment challenges being filed before state supreme courts, arguing against their death penalty laws on “adequate and independent state grounds” and not federal constitutional arguments?

Perhaps.  Of some interest, let’s not forget that this month marks the October 2016 anniversary of Hurst and Perry opinions by the Florida Supreme Court insofar as the Florida Death Penalty Law.  Something to ponder.

 

This week, Amnesty International released its findings regarding capital punishment in the State of Florida.

From their press release:

“While several US states have embraced abolition in recent years, Florida remains a diehard proponent of the death penalty and one of a handful of states that account for the bulk of executions in the USA,” said Erika Guevara-Rosas, Americas Director at Amnesty International.

“Despite its capital sentencing law being found unconstitutional two years ago, Florida still has the second largest death row in the country. Its response to that ruling has been to dig in and defend the indefensible, including the execution of people with mental and intellectual disabilities.”

Amnesty International goes on to explain:

Florida shows few signs of joining the USA’s 19 states that have already abolished the death penalty or the others that are rethinking it. It is ranked fourth in the number of executions carried out in the USA since 1976, when the US Supreme Court approved new capital laws.

Darkness visible in the Sunshine State: The death penalty in Florida examines how many death row inmates have been denied the chance of a review of their death sentences by the state’s response to the Hurst v. Florida ruling in 2016, in which the US Supreme Court overturned the state’s capital sentencing statute because it gave juries only an advisory role in death sentencing.

Click on the image below to read the full 74 page Death Penalty in Florida report in its entirety:

 

Last week, the Pew Research Center released research findings in an article written by John Gramlich, entitled “11 states that have the death penalty haven’t used it in more than a decade.”  It’s an interesting read, considering that two states recently geared up their Execution Calendars again:

Until this month, Nebraska had not executed a Death Row Inmate in 21 years.  Tennessee’s August 2018 execution was its first in almost nine years.

Execution Schedule Versus Death Row Sentence

Once someone is sentenced to death, he resides on Death Row in the jurisdiction of his conviction.  Whether or not the death sentence is carried out is a different matter from being sentenced to die.

For instance, the federal government also allows for capital punishment, but no one has been executed under federal law since 2003.  California’s Death Row is notorious for holding a growing population, while no one has been executed in California since 2006.

Consider this Pew Research Center graphic:  those in the darker brown are jurisdictions with Death Rows but no executions carried out for 15 years or more:

 

Most states have the death penalty, but significantly fewer use it regularly

There are several reasons for these growing Death Row populations; we’ve delved into California before, for instance.

However, there appears to be a growing return to active execution schedules in the United States, in what Justice Sotomayor deems a “rush to execute.”  These two August 2018 deaths involved very controversial lethal injection protocols, and there is a concern that using drugs like fentanyl or midazolam is cruel and unusual punishment.

Untested Drugs in Execution Procedures: The “Rush to Execute”

While Tennessee was allowed to proceed, it was not without warning.  Ponder Justice Sotomayor’s dissent in SCOTUS’s denial of a stay of execution for Billy Ray Irick (emphasis added):

As to the prediction that this Court would deem up to 18 minutes of needless torture anything less than cruel, unusual, and unconstitutional, I fervently hope the state courts were mistaken. At a minimum, their conclusion that the Constitution tolerates what the State plans to do to Irick is not compelled by Glossip, which did not categorically determine whether a lethal injection protocol using midazolam is a constitutional method of execution. See Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 12). Glossip’s majority concluded only that, based on the evidence presented in that case, there was no clear error in the District Court’s factual finding that midazolam was highly likely to prevent a person from feeling pain. Ibid. (citing Glossip, 576 U. S., at ___ (slip op., at 16)).

As noted, the trial court here came to a different factual conclusion based on a different factual record, as have others. See McGehee, 581 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 2) (noting a district court’s “well-supported finding that midazolam creates a substantial risk of severe pain”); Otte v. Morgan, 582 U. S. ___ (2017) (SOTOMAYOR, J., dissenting from denial of application for a stay and denial of certiorari) (similar).

If it turns out upon more sober appellate review that this case presents the question, I would grant certiorari to decide the important question whether the Constitution truly tolerates executions carried out by such quite possibly torturous means. 

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1.

If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Pope Francis has officially changed the Catechism of the Catholic Church this month to condemn capital punishment as “inadmissible” and that the Church will work for “its abolition worldwide.”

The Pope has announced a major change in the position of the Catholic Church to the death penalty.  The Catholic Catechism has been formally amended.  From the August 2, 2018 Vatican Press Release, here is the translation provided from Rome:

Traduzione in lingua inglese

The death penalty

2267. Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”,[1] and she works with determination for its abolition worldwide.

What is the Catechism?

From USCatholic.org, the Catechism of the Catholic Church is explained as a reference for all Catholic doctrine published by Pope John Paul II in 1992 as part of the 30th anniversary of the opening of the Second Vatican Council.  Historically, the compilation goes back to 1566 when the first Roman Catechism was published as a result of the Council of Trent.  For details, visit the site as it discusses the history of the Catechism, including various national catechisms (for example, the 2006 United States Catholic Catechism for Adults (USCCA)).

Read the complete text of the Catechism of the Catholic Church, translated into English, at the Vatican’s site. 

This Corresponds to Pope Francis’ Previous Statements Regarding the Death Penalty

The amendment is not a huge surprise.  Pope Francis has been vocal about his position on the death penalty before.  As an example, Sister Helen Prejean shares Pope Francis’ statements before the International Association of Criminal Law, here is the [translated] excerpt dealing with the death penalty:

I. In regard to the primacy of life and the dignity of the human person. Primatus principii pro homine

a) In regard to the Death Penalty

It is impossible to think that today States do not have at their disposal means other than capital punishment to defend the life of other persons from unjust aggression.

Saint John Paul II condemned the death penalty (cf. Encyclical Letter Evangelium Vitae, 56), as does also the Catechism of the Catholic Church (N. 2267).

However, it can be verified that States take life not only with the death penalty and with wars, but also when public officials take refuge in the shadow of State powers to justify their crimes. The so-called extra-judicial or extra-legal executions are deliberate homicides committed by some States and their agents, often making it appear as clashes with delinquents or presented as the undesired consequence of a reasonable, necessary and proportional use of force to have the law applied. In this way, even if among the 60 countries that keep the death penalty, 35 have not applied it in the last [ten] years, the death penalty is applied, illegally and in different degrees, across the whole planet.

The same extra-judicial executions are perpetrated in a systematic way not only by States of the International Community, but also by entities not recognized as such, and they represent genuine crimes.

The arguments opposed to the death penalty are many and well known. The Church stressed some of them opportunely, such as the possibility of the existence of judicial error and the use that totalitarian and dictatorial regimes make of it, which use it as an instrument of suppression of political dissidence or of persecution of religious and cultural minorities, all victims that, for their respective legislations, are “delinquents.”

Therefore, all Christians and men of good will are called today to fight not only for the abolition of the death penalty, whether legal or illegal, and in all its forms, but also in order to improve the prison conditions, in respect of the human dignity of the persons deprived of freedom. And I link this with a life sentence. In the Vatican, since a short time ago, there is no longer a life sentence in the Penal Code. A life sentence is a hidden death sentence.

Catholic Theologians Discuss What This Means to Capital Punishment

From the Catholic News Agency comes an excellent piece written by Ed Condon and entitled “Pope Francis and the death penalty: a change in doctrine or circumstances?”  In the article, Condon delves into the confusion some may have regarding whether or not this announcement is “the development of doctrine”or if it is an outright change in position on the issue of the death penalty.  Several respected theologians debate the issue.

Meanwhile, in the Catholic World Report comes an article by entitled “Why the Church Cannot Reverse Past Teaching on Capital Punishment.”  It delves into the power of Pope Francis “… to change the Catechism of the Catholic Church so that it will “absolutely” forbid capital punishment [because] … Does Catholic doctrine permit a pope to make such a change? It very clearly does not,” pointing to teachings of both the First Vatican Council and the Second Vatican Council.

Finally, there is an op-ed by Jesuit Fr. Thomas Reese, columnist for Religion News Service and author of Inside the Vatican: The Politics and Organization of the Catholic Church, published on August 7, 2018 by the National Catholic Reporter and entitled “Pope Francis pushes Catholics to actively oppose the death penalty.”

Reese looks at the practicalities facing Bishops in the United States now that the Catechism has been officially amended, given that statistics show that the majority of Americans are in favor of the death penalty (emphasis added):

The U.S. bishops will now add opposition to the death penalty to their other lobbying issues. This list already includes controversial positions such as their support for comprehensive immigration reform, universal health care and programs to help the poor and their opposition to the Muslim ban, abortion and gay marriage.

Just as some Catholic politicians have parted from the bishops on these issues, there will certainly be some who oppose the bishops’ call for eliminating the death penalty. One of the things I like about the bishops is that they make both political parties uncomfortable.

As long as the discussion of the death penalty is conducted in the abstract, it can remain rather academic. But once it becomes focused on an individual criminal, passions will flare up. If the criminal is a serial killer, a rapist-murderer or someone who has shot schoolchildren, the bishops’ call for clemency will meet fierce opposition.

In the past, some bishops have opposed the execution of specific criminals in their states and called on governors to commute their sentences to life imprisonment. Now we can expect all the bishops to join in these efforts, and we can also expect vocal opposition. This is a fight the bishops will not win unless their people join them.

 

Will This End Prosecutors Seeking the Death Penalty?  No.

This news from Rome will not stop prosecutors across the United States, as well as the rest of the world, from seeking the death penalty.  For the position of the prosecutor on Pope Francis’ amendment to the Catholic Catechism, read “Prosecutor disagrees with Pope Francis’s death penalty ruling,” where Ohio’s Hamilton County Prosecutor Joe Deters explains the prosecutorial stance.

As for what it will mean for individual jurors, and jury selection, that is a different and difficult issue.  Will prosecutors try and find ways to keep Catholics off their juries?  What do you think?

 

The State of Tennessee has the execution of Tennessee Death Row inmate Billy Ray Irick scheduled for August 9, 2018.  Irick’s defense lawyers are working very hard to stop this from happening.

This case is yet another example of the importance of zealous, aggressive, and experienced Death Penalty Defense attorneys during the investigation and initial trial of someone for whom the state is seeking capital punishment.  When the defendant suffers from mental illness, there must be an extensive effort made to delve into his childhood (from his earliest days forward), as well as gathering expert analysis of his mental state at the time of the alleged capital crime.

Terry Lenamon is not involved in this Tennessee case.  For more regarding the issues including investigation and presentation of mitigating factors involving psychological issues in:

Battleground No. 1: Method of Execution

Irick’s lawyers are arguing against the method of execution on one battleground.  This week, they filed arguments against the lethal injection method of execution that Tennessee is planning on using in Irick’s execution.  For details, read “Attorneys Seek Stay of Execution for Billy Ray Irick,” written by Steven Hale and published on July 30, 2018, in the Nashville Scene.

Read the full 110 page Motion to Vacate Execution Date filed with the Tennessee Supreme Court here.

Battleground No. 2:  Mental Illness and Assistance of Counsel

There is no controversy regarding whether or not Billy Ray Irick raped and murdered 7 year old Paula Dyer in 1986, a crime for which he was convicted and sentenced to death.  He confessed shortly after he was arrested.

The issue today is the longstanding mental illness suffered by Billy Ray Irick, and the questionable actions of his lawyers during both the guilt and sentencing phases of his criminal trial.  For instance, no defense witnesses were called during the trial phase.  None.

From the Appellant’s Brief filed in 2010 on behalf if Billy Ray Irick we know that while some factual evidence was presented during the trial of Billy Ray Irick’s mental state, it was not entered during the trial phase but during sentencing.  This consisted of testimony provided by or through Nina BraswellLunn, a clinical social worker at the Knoxville Mental Health Center.  It covered the limited time period between Irick being six and eight years old.  That is it.

It was not until after Billy Ray Irick was sentenced to die and the appellate process began that evidence of Irick’s hallucinations and recurring psychosis was discovered.  Indeed, at the time of the crime itself, witnesses provided sworn testimony that Irick was “hearing voices” and obviously mentally ill.

None of this was presented to the jury given the responsibility of deciding between life and death in sentencing.

Accordingly, based upon the evidence of his continuing and severe mental illness, including his mental state on the day of the crime, his defense team continues their fight to stop the execution of Billy Ray Irick.

From their 2010 brief, page 56-57:

Though great deal of time has elapsed since Irick’s original trial and even since the discovery of the Jeffers information, as explained above, Irick and his attorneys were in no position to file petition for writ of error coram nobis for the reasons stated above. Therefore, due process requires that the facts presented herein be considered on their merits. When his case is considered on the merits in light of the newly discovered evidence and the opinions of mental health experts, Irick is confident that the only just sentence is one other than death. Therefore, Irick respectfully requests that this court reverse the trial court and enter such order as will relieve him of the sentence of death.

Note:  For an excellent analysis of the current Tennessee situation, read “TENNESSEE PLANS TO RESTART EXECUTIONS BY KILLING A MAN WITH MENTAL ILLNESS,” written by Liliana Segura and published by The Intercept on July 15, 2018.

The State of Florida wants the death penalty for 19-year-old Nikolas Cruz, who has already confessed to being the shooter in the Valentine’s Day tragedy at Marjory Stoneman Douglas High School.

For those that follow the blog, you know Terry Lenamon’s son is a student at Marjory Stoneman Douglas, present on the day of the shooting but thankfully unharmed. 

Read, "Terence Lenamon’s Son At Marjory Stoneman Douglas High School Shooting."

While many of the victim’s families did not want capital punishment in this case, it appears that the Broward County prosecutors have made their own decision here. 

See, "Prosecutors to seek death penalty for Parkland school shooter Nikolas Cruz," written by Paula McMahon and Rafael Olmeda and published by the Sun Sentinel on March 13, 2018. 

Notice of Intent to Seek the Death Penalty for Nikolas Cruz

The State of Florida filed its Notice of Intent today.  You can read the complete Notice of Intent here. 

Aggravating Factors Asserted by State Attorney

The State of Florida intends to prove the following aggravating factors beyond a reasonable doubt in support of its desire for capital punishment of Nikolas Cruz:

  1. Florida Statute 921.141(6)(b);
  2. Florida Statute 921.141(6)(c);
  3. Florida Statute 921.141(6)(d);
  4. Florida Statute 921.141(6)(g);
  5. Florida Statute 921.141(6)(h);
  6. Florida Statute 921.141(6)(i); and
  7. Florida Statute 921.141(6)(k).

See, Notice of Intent pages 2 -3. 

And so the sentencing phase of the case begins.  The defense will bring forth its allegations of mitigating factors that go against the imposition of the death penalty. 

Next Step:  the Mitigating Factors

And there will be a trial where a jury will hear arguments from both sides — a process we have discussed so many times before here on the blog, as the Sentencing (Penalty) Phase of a Death Penalty case is where Terry focuses so much of his efforts.  

 Two years ago, in January 2016, SCOTUS issued its decision in Hurst v. Florida and now, in January 2018, the Florida Supreme Court has issued its rulings in over two dozen requests by Florida Death Row inmates for new sentencing hearings based upon Hurst’s concerns regarding non-unanimous sentencing recommendations under the old Florida death penalty statute. 

These decisions have been released all this week (Jan 22 -24). More are expected. 

For details on Hurst, read our prior discussions here.

In short, the Florida Supreme Court is denying these Death Row inmates new sentencing hearings. 

The Court is using June 24, 2002, as its bright line. 

That’s the date that  SCOTUS came down with Ring v. Arizona, opining that the constitutional right to a jury trial  includes defendants facing the death penalty to have their jury find all facts that are necessary for a death sentence to be imposed.

The FSC holds Ring created new law and would not be retroactively applied to cases where direct appeals had been completed before Ring came down.

For details, read the coverage by Orlando Sentinel on January 22, 2018, entitled, "Florida Supreme Court rejects 10 Death Row appeals at same time." and the article by Stephanie Brown for WOKV-TV entitled, "FLORIDA SUPREME COURT LETS STAND DOZENS OF DEATH SENTENCES, INCLUDING 11 FROM THE FIRST COAST," which was published today. 

To read the entire SCOTUS opinion in Hurst v. Florida, go here. 

 

With the execution of Patrick Hannon earlier this month, the State of Florida has completed its execution schedule for 2017.  

Lenamon Victory in James Bannister Trial

Terence Lenamon has just successfully defeated attempts by prosecutors to get the death penalty in two capital cases this fall.  In both the James Bannister and William Wells prosecutions, the juries came back with verdicts imposing life without parole. 

Not death. 

What swayed the jury in the Bannister case?  We’ll share Terry’s closing argument here on the blog and in his online library in a future post.  (Read his argument in Wells here.) 

2018 Florida Capital Punishment Prosecutions 

Right now, there are no executions scheduled by the State of Florida for 2018 (most executions already on the calendar are in Ohio, some in Texas).  

And there’s a lot of people watching what will happen if SCOTUS decides to hear Hidalgo v. Arizona, because it might bring all death penalty prosecutions to a halt in this country in a similar manner to Furman years ago.  

Doesn’t change things for capital defense today.  Prosecutors are going to seek death in capital cases and death warrants will be issued next year.

Consider this:  a man has been arrested and accused of being a serial killer over in Tampa today.  Prosecutors are telling the press this afternoon they will seek the death penalty in this case.  

Hopefully Terry gets a much needed respite over the holidays — because he’s going to be very busy again next year, fighting to keep people from being killed by the state. 

 

This week in Florida, there were two major events involving capital punishment in the Sunshine State.

1.  Asay Execution With Etomidate

First, the execution of Florida Death Row inmate Mark James Asay was carried out on August 24, 2017.

This was the first execution by the State of Florida in over 19 months.  Executions have been on hold in Florida after the SCOTUS decision in Hurst ruled the Florida capital punishment statute unconstitutional.

It was also the first execution to use a new three-drug lethal injection protocol, as the Asay execution involved the use of the drug etomidate.

2.  Lack of Unanimity Denies State the Death Penalty in Kendrick Silver Trial

This week, the capital murder trial of Kendrick Silver when to a jury in Miami.  And because one single juror could not agree that Silver should be executed for his crimes, there can be no death penalty in his case.

This is the first death penalty case that has been tried to completion in Miami since the new Florida death penalty law was passed by the Florida Legislature  earlier this year.  

The new statute had to be passed into law because of the SCOTUS decision in Hurst.  

Under the new law, which requires all the jurors agree on the death penalty as the appropriate sentence, the power of a single juror is great.  As is shown in this case, where the hold-out juror found that there were sufficient mitigating circumstances to shield the defendant from death.

Foe more on mitigation in a death penalty case, read:

 

More on Florida Death Row Than Any Other State Except California

According to new research compilations by the Department of Justice’s Bureau of Justice Statistics, we know that Florida remains number two in the country for the number of people setting on its Death Row.  

Only California has more Death Row residents.  Source: Bureau of Justice Statistics May 2017.

 

 We also learn the following, as of December 31, 2015:

  • 33 states and the BOP held 2,881 inmates under sentence of death, 61 fewer than at year-end 2014. This was the fifteenth consecutive year in which the number of inmates under sentence of death decreased. 
  • Fourteen states and BOP received 49 inmates under sentence of death.
  • Six states executed 28 inmates.
  • Twenty-one states removed 82 inmates from under sentence of death by means other than execution.
  • Overall, 20 states held fewer inmates under sentence of death than a year earlier, 5 states and BOP held more inmates, and 9 held the same number.
  • The largest decline in inmates under sentence of death occurred in Texas (down 17), followed by Georgia (down 8), and Missouri (down 7).