Recently, TIME Magazine had a cover story regarding the Death Penalty in this country.  Included in its coverage of capital punishment in the United States was an opinion piece by sports legend Kareem Abdul-Jabbar.  
 
Mr. Abdul-Jabbar writes about his arguments for abolishing the Death Penalty.  You can read it here.
 
 
This is another example of the growing media coverage of the Death Penalty and the debate over whether or not there should be executions in the United States today.
 
If you read some of these articles, you may get the idea that the Supreme Court of the United States has the issue of outlawing executions before it.  
 
 
The widest reading of things before SCOTUS today would be a wide interpretation of the lethal injection method of execution as those issues have been presented in an Oklahoma case, Glossip v. Gross.  It’s debatable if that case is really arguing against lethal injections as a method of execution or it is is targeting the use of a particular chemical in an execution using the lethal injection method.
 
And remember, there are several alternative methods of execution with SCOTUS approval already in place if the lethal injection method of execution were to be ruled unconstitutional. 

Executions need executioners. One of the challenges to the lethal injection method of execution in the United States involves the drugs used in the process, and we post about those controversies (and the arguments being made in various courts) regularly.

However, another serious concern regarding injecting drugs into a human being in order to carry out a sentence of death involves who acts as executioner.

Doctors and Pharmacists

Doctors take an oath dedicating themselves to saving lives, not ending them. Physicians are vocal about their opposition to participating in executions involving lethal injections.

Which means it has been difficult finding people to do the job, and in some executions pharmacists have been the solution to the problem of finding an execution to inject the drug cocktail (or the single drug) used for capital punishment in that state.

Recently, the national organization that represents pharmacists came out officially against participating in executions involving lethal injections.

It doesn’t stop an individual pharmacist from participating, but it sure does discourage it. 

Their press release:

APhA House of Delegates Adopts Policy Discouraging Pharmacist Participation in Execution
 

March 30, 2015

"The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of  Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.

The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.
 

This new policy statement joins two policies previously adopted by the APhA House of Delegates:

Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)

1. APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
2. APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.

 Right now, the Supreme Court of the United States is considering several cases dealing with capital punishment and how the death penalty is to be carried out in this country.

It’s getting to the end of the 2015 Term for the High Court, which means that we may expect some opinions to come down before the Justices leave for their summer vacations.  

The pending death penalty cases on the 2015 SCOTUS calendar include:

1.  Brumfield v. Cain

This is a case dealing with whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.

2. Hurst v. Florida

Here, the sole question presented to the High Court for decision is whether or not Florida’s death sentencing scheme violates the Sixth Amendment or the  Eighth Amendment in light of this Court’s decision in Ring v. Arizona, 536 U. S. 584 (2002). 

3. Glossop v. Gross

The High Court is considering this case out of Oklahoma and while there are some that suggest this case may result in the entire lethal injection method of execution being held unconstitutional as cruel and unusual, there are others that see the case as being narrowly based, and dealing only with the issue of devation from Baze v. Rees, 553 U.S. 35 (2008) insofar as substituting the drug 

midazolam as its three-drug lethal injection cocktail, a drug not approved by the FDA for use as general anesthesia and never used as the sole anesthetic for painful surgical procedures.

4.  Supreme Court Allowed Two Death Penalty Executions Already This Year

Of note, Texas got the green light to execute Robert Ladd this year and Georgia also went ahead with the execution of Warren Hill in 2015 after SCOTUS declined to grant writ in that case.

_______________

NOTE:  There is in-depth discussion of the lethal injection method of execution which focuses in part upon the botched execution of Clayton Lockett by the State of Oklahoma that was published today in the Atlantic.

(Hat tip to Sydney Simon for sending Terry Lenamon advance notice of the cover story here.)

Entitled, "Cruel and Unusual:The botched execution of Clayton Lockett—and how capital punishment became so surreal," and written by Jeffrey E. Stern, it’s a good read for those following what’s happening up in Washington right now.  

Two quick things as we await the Supreme Court decision in Glossop:
1.  Read this Article
Last week, law professor Paul Litton shared an article with Terry Lenamon that he has coauthored with Harvard professor David B.Waisel.  It  discusses last week’s SCOTUS arguments and the overall issue of whether or not the current lethal injection method of execution is unconstitutional.

It’s a good read.

2. Watch this Video

Another good exploration of the issue — this video from the Death Penalty Information Center:

https://www.youtube.com/watch?v=39G5MvgJ5lE

Tomorrow morning, the Supreme Court of the United States will hear oral arguments in a case where many believe the entire question of whether or not the lethal injection method of execution is cruel and unusual punishment will be decided.
 
 
Be Ready at 9:45 AM Tomorrow for Lethal Injection Method Arguments
 
SCOTUS blog will begin live blogging tomorrow’s oral arguments at 9:45 AM EST.  If you want to be notified by email when the live blogging is about to start, then they’ll send you a reminder email upon request.  
 
Glossop v. Gross Background Briefs and More
 
For details on the arguments being made and the background of the case, Glossop v. Gross, read the details provided by the SCOTUS blog.  These include briefs by the parties as well as amicus curaie filings in the case.   
 
Why Follow the Live Blogging?  
 
The Supreme Court provides audio as well as transcripts of each week’s oral arguments online on a weekly basis.  So, if you want to follow things as they are happening, the live blogging allows you to do so.  There aren’t cameras in the Supreme Court for a live feed (yet).  
 

 This week, the Massachusetts trial of Boston Marathon Bomber Dzhokhar Tsarnaev continues in much the same way that a death penalty trial would in Florida or Texas.  

The Two Parts of a Death Penalty Trial

In the Boston Marathon Bomber’s case, just like a Florida death penalty trial or a Texas case seeking the execution of the defendant:

  • The jury has decided that the defendant is guilty.  
  • The jury verdict includes a crime for which state law provides the death penalty.  
  • The prosecution has sought capital punishment in the case – something that was noticed and known to both the state’s attorneys and the criminal defense team from very early on in the process.
  • Now, the Boston Marathon Bomber’s courtroom trial proceeds into the part of the case where Terence Lenamon takes the lead for his defendants: that is, the penalty phase of the capital case.  
  • The prosecution will be arguing for death and citing "aggravating factors" that the jury should consider in its deliberations.
  • The defense will be urging "mitigating factors" that should be balanced against the death penalty in the jury’s decision-making.

Federal Law Controls Death Penalty Decision by Jury

This case, however, is controlled by federal law.  Specifically, 18 USC Section 3592, the federal statute for "Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified." 

Here is Terence Lenamon’s complete list of federal aggravating factors and the defense’s mitigating factors if you want to compare them to what the Boston trial is presenting.

The prosecutors only need to prove ONE aggravating factor to the jury in order to support their demand for the death penalty as a sentence.  Given the death of a small boy at the scene, reportedly near the site where the bomb was placed and within view of the defendant at the time that the bomb was left there, there are facts which may be sufficient on this one circumstance to meet this legal burden under the federal statute.

The defense, looking at mitigating factors, may well point to the young age of the defendant and an argument that he was unduly influenced by his older brother – the other bomber who died during the arrest.  Some may expect to see evidence presented that survivors of the blast are opposed to the death penalty (but the state may argue against its admission).  

Other psychological evidence may be presented, and the defense only has to meet a "preponderance of the evidence" standard (something akin to 51%) to prove the mitigation arguments.  That’s a lower burden than the prosecutor must meet.

Will the jury sentence this man to death?  Would you?   

 

We’re getting information now about how the death penalty and capital punishment fared in 2014.   The first quarterly report from the NAACP’s Legal Defense Fund has been released.

 

 

image: Cell on Florida’s Death Row

U.S. Death Row Populations: Most in California, 43% White

From it, we now have statistical confirmation that there were less people on death row last year.  Across the nation, the death row population decreased by 12%.  There were around 3000 people on Death Row at the end of 2014, around 450 less than the previous year.

The report shows that of these Death Row inmates, 43% are white; 42% are black; and 13% are Latino/Latina.  

Florida continues to have the largest Death Row population in the country, second only to California, with 403 inmates (California has 743).  Texas is third with 276 people living on its Death Row.  

To read the entire report, go here.  

Death Row and Executions

One thing to point out here:  in the top three listed above, both Florida and Texas are high with the number of Death Row inmates and both these states are active in executing people and carrying out capital punishment sentences.  

Not so, California.

One reason that California is number one in Death Row population statistics is that California isn’t executing people like Florida, Texas, Georgia, Oklahoma, etc.  Instead, the population on the California Death Row grows.

So much so, in fact, that the state has run out of room.  To keep doing what its doing, California will have to spend cash to expand its Death Row facilities.  See the recent Los Angeles Times story for details, "California’s death row, with no executions in sight, runs out of room."

 

 

Terence Lenamon works to defend all his clients who are facing the possibility of capital punishment, and he works particularly hard for those defendants who have mental capacity issues based upon psychological and/or physical concerns.  

Mitigating factors in these areas should prevent these individuals from being given the death penalty, much less being executed; however, as these statistics show, and as Terry Lenamon discusses regularly, the reality is that people with mental challenges are executed in this country regardless of the constitutional prohibition against it being cruel and unusual punishment.  

 This week, the Supreme Court of the United States heard oral argument in the case of Brumfield v. Cain, a death penalty case coming out of Louisiana and filed by Death Row inmate Kevan Brumfield.

 
The crux of the case is how someone is determined to be mentally disabled and therefore, not subject to capital punishment and the death penalty under the federal constitution.  
 
 
Of course, this isn’t the first time that the High Court has considered this issue; it’s a complex legal question that the Supreme Court has considered in earlier, landmark cases like Atkins v. Virginia, where it found that convicted individuals who are “mentally retarded”  cannot be executed because this would violate the Eighth Amendment’s bar against cruel and unusual punishment.  
 
In Brumfield, the question isn’t whether or not someone with severe mental disability can be executed — it’s whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.
 
Brumfield Questions Presented
 
 
 
(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and 
 
(2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.