Yesterday, legislation passed in the Florida Senate to make radical changes to the state criminal justice system – and this will have a major impact upon how death penalty cases are handled here in the State of Florida if the Powers That Be can get this through the necessary hurdle of a constitutional amendment.

All this came about, apparently, as everyone up in Tallahassee is fighting over budget matters.  The Tampa Tribune points a finger at JD Alexander, the chairperson of the Florida Senate Budget Committee who inserted a surprise into a bill, amending the pending Senate bill by adding the same language – language approving major changes to our criminal courts – that he apparently cut and pasted from a House bill that passed earlier this month. 

What The New Legislation Does – Births a Brand New High Court for Criminal Cases

The Florida Legislature has approved splitting the Florida Supreme Court into two separate courts:  one civil, one criminal.  Since the Florida Supreme Court would be left with some empty seats, three to be exact, Governor Rick Scott would be able to appoint who would fill those positions on the highest civil court in the state. 

The new law also gives the Florida Legislature new power taken from the Florida Supreme Court as part of the Florida Supreme Court’s makeover.  Now, the Legislature will control the internal rule-making process of the court.  

This is law, a done deal — except for the hurdle of getting a Constitutional Amendment passed.

Backlog of Death Penalty Cases Said to Be Reason for Creating New Court

It’s been argued that the reason for this judicial revamp is that death penalty cases are backlogged right now in the current Florida Supreme Court.  Republicans in the Florida House pointed to the 393 people setting on Florida’s Death Row as one major reason that a new, separate high court dedicated to criminal matters was needed. 

Others are arguing that this has nothing whatsoever to do with Death Row; instead, they focus on the Florida Supreme Court and its ability to decide the boundaries of Florida’s voting districts.  These folk suggest that moving three justices over to this new criminal court will open the door to Governor Scott appointing people to fill those positions that will have the same viewpoint he does on things. 

Power play, they say.  Not concern over capital punishment. 

It’s Not Over Until the Voters Okay It Via a Constitutional Amendment

If anyone thinks that lines are being blurred between the legislative, judicial, and executive branches — well, you’re not alone.  

Most of the legal community in this state is discussing the huge impact of what has just happened here.  This is a very, very, very big deal. 

All that remains before these changes become effective in our state is for this to be placed on a ballot.  Making this big of an overall to the Florida judicial system means that the constitution has to be changed.  And, sixty percent (60%) of the voters will have to approve the new constitution as amended. 

Florida will vote on the Amendment on the November 2012 Ballot.  

One more scholarly effort can be placed onto that ever-growing stack of research studies that find capital punishment is simply untrustworthy, that it is procedurally flawed.  Never mind the morality.  Or mercy.  Or the growing problem of finding drugs for those lethal injections …. The study nixes the death penalty before these issues even arise.

Matthew Robinson of Appalachian State University Releases April 2011 Study of North Carolina Death Penalty

Professor Matthew Robinson released his research findings from the offices of the North Carolina Advocates for Justice office.  (Professor Robinson maintains his own website here.)

Professor Robinson, at the accompanying press conference, told the media that the procedure of convicting and sentencing an individual to death in North Carolina is faulty.  Result?  Together with professors from Fayetteville State University and the University of North Carolina (Chapel Hill), Professor Robinson argues that North Carolina should halt executing people for crimes.  

Next Step:  North Carolina Legislatures Must Consider the Robinson Report

Those seeking to abolish the death penalty in North Carolina are hoping that this new research study will be powerful enough to exert influence over the legislators that are currently dealing with a number of proposals dealing with capital punishment in their state. 

Among them:  a bill that seeks to repeal the state’s Racial Justice Act, which currently provides an avenue for death row inmates to challenge their sentences by presenting post-conviction evidence of racial bias.  

[Note:  As of the initial publication of this post, we were not able to locate the full text of this report.  Upon discovery of the full text of this new death penalty study online, we’ll add the link here for your convenience.]

 

Back in 2009, there was a three part series of posts here on the Death Penalty Blog, discussing the lethal injection cocktail as it was commonly used at the time:  in Florida, this meant a combo of first, thiopental sodium ; second, pancuronium bromide; and lastly, potassium chloride. 

From that series (please go to the posts for research details and more info):

  1. Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that. It stops working within minutes.
  2. The second chemical involved in the lethal injection process, pancuronium bromide, or Pavulon, is also constitutionally problematic under existing law. A derivative of curare, it operates to suppress any muscular movement, including breathing, in the condemned, but does not anesthetize him or affect his consciousness in any way.  According to recent scholarship, it is completely unnecessary to causing the condemned’s death, and serves only to make the execution seem more palatable to the other participants and witnesses when the other drugs have their effects, which can include spasm, twitching and other movements of the voluntary muscles.
  3. Finally, the use of the third drug — the actual killing agent potassium chloride — also raises important constitutional concerns. According to Dr. James J. Ramsey, a certified perfusionist and currently the Program Director in the Program in Cardiovascular Perfusion at Vanderbilt Medical Center, Nashville, Tennessee, the adequacy of the potassium chloride to cause death by stopping the heart is in question.  The inmate actually suffocates: the lethal injection does not just peacefully stop the heart.

Today, with the dwindling supply of drugs available for executions, there seems to be more public awareness of the chemicals used in capital punishment.  This is a good thing, since so many avert their eyes to the realities here.

This Week, The New York Times considers the question.

In a New York Times article published April 9, 2011, entitled "What’s in a Lethal Injection ‘Cocktail’?" reporter Pam Belluck delves into the issue of what exactly happens in those lethal injection executions, especially now that thiopental sodium isn’t being used any longer. 

If only it went into more detail.  The research shows that the lethal injection method is cruel – and with the innovation of a drug, pentobarbital, that has been used or tested so rarely on human beings, it’s also becoming highly unusual, too. 

Integrity, Dignity, and Honor

It would nice to think that these injections of drugs into a human being resulted in a merciful death, but research does not support that warm fuzzy.  And this was true before states like Ohio and Texas began executing men just as vets euthanize cats and dogs. 

Sure, there are proponents of the death penalty who will say "who cares? Let them suffer, look what they did."  However, there are the considerations of integrity, dignity, and honor which the state must (or should) maintain. 

Our system of government, to the extent that it deems capital punishment to be acceptable, should never stoop to have its actions compared with those that it has found worthy of death.  We must insure that the method of execution is merciful, as much as we can. 

Right now, with the condoned use of pentobarbital in state executions, it’s clear that we are not.

As usual, Texas is in the spotlight regarding capital punishment, as a big victory was had at the United States Supreme Court this week in stopping the execution of Cleve Foster, who was scheduled to make history as the first person to die in Texas under their new lethal injection cocktail.  Texas would be substituting pentobarbital for sodium thiopental in its three drug cocktail in Foster’s execution, since Texas has also apparently lost its drug supplier.

Yesterday, with only around eight hours to go before the execution itself, the U.S. Supreme Court issued a stay of execution for Cleve Foster.  Read the Order Staying Cleve Foster’s Execution here.  

To follow the Texas execution schedule, go here.  Several men are scheduled to die in the next few months, including Humberto Leal, Foster’s co-appellant in state proceedings challenging the new drug cocktail.  Foster’s case will not stay Texas’ use of pentobarbital in these executions – the High Court isn’t intervening today because of a concern over pentobarbital. 

The Fight in Texas Against Pentobarbital – Read the New, Powerful Joint Report

A few weeks ago, counsel for the American Civil Liberties Union (ACLU) of Texas, the American Civil Liberties Union Foundation Capital Punishment Project and Human Rights Program, and the Center for International Human Rights, Northwestern University School of Law issued a bluntly titled report, “Regulating Death in the Lone Star State: Texas Law Protects Lizards From Needless Suffering, But Not Human Beings.” 

It’s a powerful and important work, and you can read it here.  From the report:

Texas’ lax attitude regarding the taking of human life contrasts sharply with its enactment of detailed regulations to ensure that animals suffer no pain when they are euthanized. Animal euthanasia laws provide strict certification requirements for euthanasia technicians and regulate acceptable methods of intravenous euthanasia down to the correct dosage per kilogram of an animal’s body weight. By contrast, the Texas legislature has failed to enact any legislation to ensure that the individuals responsible for extinguishing human life are properly trained and qualified, and that the drugs they administer are both effective and humane.

Cleve Foster Stay by US Supreme Court NOT Based on Drug Cocktail Challenge

While Foster’s challenge to the use of pentobarbital is strong — and perhaps, given the ACLU Report, the strongest so far on not executing people like vets euthanize pets — the stay granted by the High Court was not based upon its need to consider arguments regarding execution methods.

No.  The stay of Cleve Foster’s execution was based upon arguments that  he received ineffective legal representation in both his trial and during his appellate process when his lawyers did not challenge the state’s blood-spatter evidence which prosecutors argued linked Foster to the rape and murder of Nyaneur Pal in Fort Worth, Texas, back in 2002. Experts disagree on whether that blood-spatter evidence shows the body had been moved (the state’s contention) or whether Pal had been killed where her body was discovered (Foster’s contention). 

 The State of Texas has thirty (30) days to respond to the arguments addressed in Foster’s petition for rehearing.   

This week, Terry Lenamon was interviewed by Ana M. Valdes of the Palm Beach Post for his expert opinion as a death-qualified criminal defense attorney regarding the Jorge and Carmen Barahona murder trial, now that the prosecution has announced that it will be seeking the death penalty.

In an article entitled, "Barahonas to face death penalty on charges of murdering adopted daughter; trial set for July," Lenamon discussed his views on what the focus of the defense team must be at this juncture, when the case has received such national media coverage and where the investigation has already revealed so much since 10-year-old Nubia’s body was discovered, decomposing, in a garbage bag on February 14, 2011. 

The defense will have hard facts to face regarding the guilt phase, since the child’s body was found in the back of Jorge Barahona’s pickup truck on IH 95 – among other things revealed during these few short weeks of investigation.  As Terry explained to the Palm Beach Post reporter, it is his opinion that the defense focus will be on mitigation:  fighting against the death penalty itself. 

What could those mitigating factors be?  For one thing, mental illness probably will be a mitigating issue.  Jorge Barahona is already being considered as mentally unstable by his jailers, wearing special garb to identify him as being mentally ill when he appeared in court for the arraignment. 

Trial is scheduled to begin in July 2011 before Miami-Dade Circuit Court Judge Sarah Zabel of the Eleventh Judicial Circuit of Florida, who along with Terry graduated from the Nova University School of Law (Judge Zabel is a 1993 graduate).  Judge Zabel has presided as a Florida Circuit Court Judge since 2003. 

Expect the defense to ask for that trial date to be extended.  Death penalty defense argubably will need much more than a couple of months to get ready for this case. 

 

Troy Davis sits on Georgia’s Death Row today with less and less hope to escape execution. 

This week, the United States Supreme Court declined Troy Davis’ request to review the determination by federal trial judge William T. Moore Jr. that the evidence Mr. Davis has accumulated to prove he is innocent of the crime for which he has been sentenced to die is merely "smoke and mirrors.”

This is a very serious turn of events because this may well thwart the last appellate avenue for Troy Davis (for earlier posts on the Troy Davis case, go here).  The great majority of those who testified against Mr. Davis at trial have recanted their testimony.  Some of these witnesses have even gone so far as to suggest that the prosecution’s star witness is the real killer here. 

For many, what Troy Davis has to offer is much more than smoke and mirrors.  Still, the High Court has ruled and now,the question becomes what can be done now to stop what may well be an innocent man from being executed by the State of Georgia.

It may well be that the Governor’s mercy is Troy Davis’ last and only hope.  It is legally possible that the State of Georgia could schedule Mr. Davis’ fourth execution date at any time. 

The reality that individuals suffering from severe mental illness set on Death Rows all across the country today should not even be the subject for debate – the reality is too obvious.  Whether they were mentally ill at the time of the crime for which they face a sentence of death is one issue.  Whether they literally lost their minds living 24/7 in Death Row conditions is another.  

The real question becomes, should the severely mentally ill be subject to the death penalty?  Many legal scholars and health professionals have considered this issue and a number of worthwhile studies and reports are now available to us all, courtesy of the internet. 

Five Excellent Studies and Reports Regarding Mental Illness and the Death Penalty

1.  Double Tragedies: Victims Speak Out Against the Death Penalty For People with Severe Mental Illness (available for download; 37 pages) by the National Alliance on Mental Illness (NAMI) and Murder Victims’ Families for Human Rights;

2.  Position Statement of the Mental Health America;

3.  Mental Illness and the Death Penalty in North Carolina: a Diagnostic Approach (available for download; 78 pages) by the Charlotte Law School;

4. Mental Illness and the Death Penalty (available for download, 8 pages) by the American Civil Liberties Union; and

5. Task Force Report on Mental Disability and the Death Penalty (available for download, 13 pages), by multi-disciplined task force and published by the APA.

2020 NOTICE:  OUR INVITATION FOR GUEST POSTS HAS BEEN SUSPENDED.

More and more, we are receiving email requests from folk that would like to write a guest post here on the Death Penalty Blog.  Right off the bat, please know that we consider it an honor that anyone would be interested in taking the time and effort to write something for publication here.

To all that have sent requests, thank you.

However, Terry has dedicated this site to capital punishment issues and he feels it’s important that we keep to that important topic, in all its nuances.  Therefore, some of the requests must be declined because they delve into issues outside of the death penalty area.  However valid and valuable they may be, we must forego publishing these proposed articles – though again, thank you for your offer.  Sincerely.

SEE 2012 UPPATE BELOW FOR ADDITIONAL PREREQUISITE.

Guidelines for Guest Posts

For those who have an interest in writing about capital punishment or death penalty issues, both here or in other parts of the world, please feel free to join our new Guest Blogger roster.  We welcome writers who have something to say about the death penalty today and invite you to contact Reba Kennedy (contact info below) if you are interested in posting here at Terry’s death penalty blog.

Our posts appear twice a week, and are intentionally limited to certain topics.  Accordingly, we ask that any guest posts also follow these guidelines:

  1. You must have your own website, blog site, Facebook page, Twitter account, or other online presence that we can link with, for the convenience of our readers – we cannot accept anonymous guest post writers;
  2. You supply a brief biography (and we welcome a pix of yourself if you have one) to highlight who you are and why the readers can trust your article or opinion;
  3. Your post must be at least 250 words and no more than 1200 words;
  4. We respectfully reserve the right to edit all submissions; and
  5. Your post must be original and must include links to support its factual statements, etc. especially any quotes, as the parameters of the fair use doctrine and copyright law (e.g., plagarism) must be maintained.

Guest Blogger Roster Will Appear in the Sidebar

Those who have, and will, post here as guest writers will be spotlighted in the blog’s sidebar as Guest Writers.  Their names within that listing will be linked to their website/blog/Facebook etc. for reader convenience.

For more information or to discuss a possible guest post here, please feel free to contact Reba Kennedy at reba@rebakennedy.com.

2012 UPDATE:

This invitation is limited to those actively involved in some way with the issues surrounding the death penalty or capital punishment either in the United States or abroad.  The above-referenced website link must be connected to this topic, either pro or con.

2020 UPDATE:

We have suspended our invitation for guest posts until further notice.

 

 

Thanks!

Terry and Reba

Georgia has halted its execution schedule now that the federal government has swooped in and taken its stash of sodium thiopental.  Seems that the Drug Enforcment Administration (DEA) believes that the State of Georgia violated federal law when it bought sodium thiopental from a British supplier for use in its three-drug lethal injection execution cocktail. 

The DEA, as part of the Department of Justice, is also reportedly looking into other states’ purchases of sodium thiopental.  Maybe other states have violated federal law, too.  For one thing, Georgia sold part of its sodium thiopental supply to Kentucky.  Kentucky’s gotta be on the DEA’s list. 

Of course, this action didn’t come in time to stop Georgia from using some of the British-supplied sodium thiopental to execute Emmanuel Hammond back in January.  Importantly, the arguments against using this drug brought by Mr. Hammond’s defense counsel didn’t carry much weight with the United States Supreme Court. 

As the New York Times points out in its coverage of the DEA’s action, the Supreme Court okayed Georgia’s execution with the British drug back then. 

Now, is this more of an example of closing the barn door after the horse is out, or the left hand not knowing what the right hand is doing?  Or is it both? 

And before anyone starts arguing that this really isn’t a big deal, check out the photograph provided by NPR of the storefront in Great Britain where this stuff originated.  The drug purchased by the State of Georgia came from this dirty, shoddy storefront — actually, a second rate distributor that did business out of the back of a driving school.

Not a lab.  Not a pharmacy.  Not a drug manufacturing plant.  Nope. 

Look at the photograph.  You have to wonder if someone in Georgia thought it best simply to surf around Craigslist or EBay to buy the drug that the state would use to kill a human being.   

How did this all begin?  One letter from one lawyer. 

According to the Wall Street Journal, seems everyone thought this was just fine over in Georgia.  But things changed when U.S. Attorney General Eric Holder read a letter sent to him byJohn Bentivoglio of Skadden, Arps, Slate, Meagher & Flom LLP, who represents Georgia death row inmate Andrew Grant DeYoung. 

Up there in Washington, D.C., Mr. Bentivoglio wrote to Mr. Holder and explained that his client was facing what defense counsel believed to be an illegal execution by the State of Georgia, since the state had not registered as an importer of a controlled substance when it bought the sodium thiopental from the British supplier.

Interestingly, Mr. Bentivoglio practices in the area of health care regulatory issues, not death qualified criminal defense.  He also has a background with the Justice Department. 

According to his bio, Mr. Bentivoglio served for many years at the U.S. Department of Justice: Associate Deputy Attorney General (1998-2000); Counsel to the Deputy Attorney General & Special Counsel for Health Care Fraud (1997-1998); Trial Attorney, Criminal Division (1996-1997) and he served on the Committee on the Judiciary, U.S. Senate: Professional Staff Member (1988-1992); Legislative Assistant (1986-1988)

Well done, and thank you, Mr. Bentivoglio.

Mental health professionals and those dealing with mental health issues are well aware of the  Diagnostic and Statistical Manual of Mental Disorders (DSM).   It is used everyday in the law, as well, and you can find a copy on most death qualified criminal defense attorney’s shelves – maybe more than one.  In fact, you can buy a copy for yourself, new or used, at Amazon.com for around $60.00.

What is the DSM?

The DSM is a reference work that classifies (by codes) recognized mental disorders in the United States.  According to the American Psychiatric Association, the DSM is"…intended to be applicable in a wide array of contexts and used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems)."  

Right now, the DMS  is in its fourth version ("DSM-IV").  The APA allows that it is been "designed" to be used in clinical settings  and by all sorts of health care providers (including psychiatrists, social workers, counselors, and even rehab techs).  

DSM-V, the Fifth Edition, is due to be published in May 2013.

The DSM in Legal Proceedings

Conspicuous by its absence in the APA definition of the DSM is the regular and routine use of the manual in legal matters.  This is particularly true in death penalty cases, where mitigation during the penalty phase often focuses upon the mental illness suffered by the defendant and where postconviction proceedings fight against execution based upon severe mental illness.

Addressing this issue is a new editorial by Ralph Slovenko, JD, PhD in the Journal of the American Academy of Psychiatry and the Law (J Am Acad Psychiatry Law 39:6–11, 2011), entitled "The DSM in Litigation and Legislation." 

You can download and read Dr. Slovenko’s work here.

In the article, it is recognized that while the DSM is purportedly to be used by health care professionals, the DSM in its various versions has been cited in over 5500 judicial opinions and in over 320 pieces of legislation.

Slovenko argues that this reality needs to be addressed in the DSM itself.  And he’s right.

The DSM isn’t exclusively used by medical professionals, nor should it be.  When its authors are writing the language within the new version of the DSM as well as deciding what all should be covered within the DSM (for example, should narcissistic personality disorder be included? It is being removed in DSM-V), the legal ramifications of their decisions exist and should be included in their decision making.