July 16
CALIFORNIA:
Reality Check: Future of California Death Penalty Unclear
In California, the capital punishment system has prompted decades of debate,
from the costliness of the process to the constitutionality of the state's
3-drug lethal injection method.
Yet despite all the procedural hiccups and complex questions, the subject now
before both advocates and opponents is much simpler: Will California ever
execute another prisoner?
"I would say that on the probability of the evidence, it is as likely that
California has seen its last execution in the foreseeable future, as it is that
executions will resume," said Professor Franklin Zimring, a death penalty and
criminal justice expert who currently serves as a William C. Simon Professor of
Law at Berkeley Law School.
The topic is timely because California recently announced that it would no
longer defend the 3-drug method in court, ending a legal saga that dates back 7
years.
Professor Zimring observed that if California were really determined to
continue its death penalty system, defending the 3-drug protocol in state
court, long after the Supreme Court had approved the method on the federal
level, was an odd choice.
"The real question," posed Zimring, "is what took them so long?"
The state of California, rather than defend or find the shortest distance
between 2 points to resume executions, instead pursued a [lengthy] legal
battle."
Texas, by comparison, Zimring said, "went to what I think is a one-drug
cocktail, very quickly. California fought kicking and screaming through this
process."
Texas perhaps makes the best comparison because of its large population (second
only to California) and relative proficiency in performing executions.
According to the Death Penalty Information Center, Texas has executed 500
people since 1976. California, by contrast, has performed 13 executions in that
time frame.
In a telling statistic, Zimring says that if you applied the Texas execution
rate to California's death row inmate population, the golden state would
experience somewhere between 65 and 70 executions a year.
"Oh my, it would create a civil war in California," Zimring opined, alluding to
those numbers. "But, that's why we don't have it."
The professor highlights the comparison with Texas because he says it
demonstrates both why California's execution rate has been so much lower,
comparatively, and why resuming capital punishment again in California could
prove a challenge.
Zimring points to a number of conditions working against a continuation of
capital punishment in this state:
--Governor Brown's vehement opposition to California's death penalty system
--The state's years-long defense of a 3-drug protocol that could have been
replaced
--A public that's losing enthusiasm for keeping capital punishment, as the
results of last year's Prop 34 ballot measure might suggest (the voting total
was 52 to 48 % in favor of keeping the death penalty)
--And a legal system aimed at providing death row inmates with high-quality,
expensive legal aid if they can't afford it
"These things that look like accidents, and very expensive accidents - the fact
that we pay for good lawyers [on behalf of capital defendants] that can fight
the system to the draw - maybe that isn't as much of an accident as it looks
like," Zimring said.
Richard Dieter, executive director of the Death Penalty Information Center,
thinks the death penalty will eventually return to California.
"They came close to having some executions in California a year or 2 ago," said
Dieter. "The appeals are not endless, and the process is certainly slow but
it's not interminable."
So what would the process look like for resuming capital punishment?
First, the state would have to outline new regulations for a single-drug
procedure. According to California Department of Corrections and Rehabilitation
Spokesperson Terry Thornton, the CDCR has no timetable for when those
regulations will be released.
Then once the regulations are issued, there are a series of steps that must be
completed that could take years to resolve.
According to the ACLU of Northern California, the state must hold a public
comment period within 60 days of releasing the new protocol, the state must
then review and respond to each comment, write a modified set of regulations
based on the comments/concerns, gain approval from the Office of Administrative
Law and if that happens, and only if that happens, the legal challenges can
ensue.
How long would that timeline be?
Dieter said the Chief Justice of the California Supreme Court estimates that
executions are probably about 3 years away.
"This seems like a reasonable estimate," Dieter said, "given that litigation
under the present protocol has taken 7 years."
Zimring contests the notion California will see executions any time soon.
"I would not make that assumption, because all of the conditions that led to
the particular stalemate that we???ve been living with, or depending on, are
still there," he said.
(source: NBC Bay Area)
**********************
California to switch to 1-drug protocol for death penalty executions;
Executions on hold since a constitutional chalenge was filed in federal court
and 2 rounds of procedural lawsuits were filed in Marin
A decision by the administration of Gov. Jerry Brown to switch from 3 drugs to
a 1-drug protocol for lethal injections will delay the potential resumption of
death-penalty executions in California for at least 1 year and possibly several
years.
Jeffrey Callison, press secretary to the California Department of Corrections
and Rehabilitation, confirmed today that the agency will be developing
regulations for a 1-drug execution process.
The action follows the department's decision not to seek California Supreme
Court review of an appeals court ruling that blocked the use of the former
3-drug protocol.
In that ruling on May 30, 3 Court of Appeal judges unanimously said the CDCR
didn't follow proper procedures in developing the former protocol because it
didn't explain, and therefore didn't give the public a chance to comment on,
why it believed a 3-drug protocol was better than 1 drug.
The panel upheld a similar decision issued in 2011 by Marin County Superior
Court Judge Faye d'Opal, who acted on a lawsuit filed by several death row
inmates.
"We decided not to appeal" the Court of Appeal ruling, Callison said. The
deadline for appealing to the state high court was Wednesday.
Callison said, "It's too soon to tell" which drug would be used in a 1-drug
process.
Some states have carried out 1-drug executions with sodium thiopental, a
barbiturate that has also been the 1st drug used in 3-drug executions. But
sodium thiopental is now in short supply.
Developing a new protocol will take at least a year, because the proposed
regulations must first be drafted by the CDCR. They must then be submitted to
the state Office of Administrative Law. After that, a review by that office and
required periods of public comment could take up to a year.
The future regulations could also be challenged in state or federal court,
which could add several years to the delay in implementation.
There are now 735 inmates on death row, with cases in various stages of appeal.
The last execution in California took place in January 2006.
Executions have been put on hold since then as a result of a constitutional
challenge filed in federal court and 2 rounds of procedural lawsuits filed in
Marin County Superior Court.
The former 3-drug protocol used sodium thiopental to sedate a condemned inmate,
pancuronium bromide to paralyze the prisoner, and finally potassium chloride to
stop the inmate's heart.
Prisoners contended in the federal lawsuit that the procedure risked being
unconstitutionally cruel and unusual punishment because the 3rd drug could
cause excruciating pain that would be masked by the paralytic 2nd drug.
Ana Zamora, a senior policy advocate with the American Civil Liberties Union of
Northern California, said, "This latest news is just more evidence that
California's death penalty is broken beyond repair.
"Any effort to switch execution procedures is guaranteed to bring more legal
challenges and more delays and cost millions, and is doomed to fail," Zamora
maintained.
"The only real choice is to replace the death penalty with life in prison
without the possibility of parole," she asserted.
(source: marinscope.com)
OREGON:
Kitzhaber should lead death penalty debate
The narrow line that Gov. John Kitzhaber is walking on the death penalty is
even narrower now that the Legislature has failed to put a ballot measure on
the issue before Oregon voters in 2014.
Kitzhaber won some more time on the issue last month, when the state Supreme
Court backed his decision to give a reprieve to Oregon death row inmate Gary
Haugen, convicted of 2 murders. Haugen didn't want the reprieve, but the court
ruled that Kitzhaber was within his powers.
Kitzhaber opposes the death penalty. He intervened weeks before Haugen was
scheduled to die by lethal injection in 2011; at that time, the governor vowed
to block any execution during his term in office and urged a statewide vote on
abolishing the death penalty.
The problem is that the Legislature wasn't particularly interested in dealing
with the issue this session - and, truthfully, Kitzhaber didn't seem that
interested in spending much of his political capital on it.
It adds up to another missed opportunity for Oregonians interested in finally
ridding the state of the death penalty - although the issue may still be a hot
one in the 2014 campaign, for reasons Kitzhaber may not have anticipated.
After the court ruling, the governor reiterated his opposition to the death
penalty: In a statement, he said that capital punishment "has devolved into an
unworkable system that fails to meet the basic standards of justice....I am
still convinced that we can find a better solution that holds offenders
accountable and keeps society safe, supports the victims of crime and their
families and reflects Oregon values."
Well, here's the problem with invoking Oregon values in this case: The last
time voters weighed in on the issue, they supported the death penalty.
Now, we suspect that the values of voters here have changed in the 3 decades
since that vote. We are disappointed that the issue will not directly be put to
voters in 2014.
But, if Kitzhaber chooses to run for another term, the issue could reclaim
center stage. The governor pointedly declined to commute Haugen's death
sentence, although that would have been within his powers. He also has said
that he will not allow an execution to take place while he's governor - even
though the death penalty remains the law of Oregon, and Kitzhaber has taken an
oath to uphold those laws.
If he runs for re-election, Kitzhaber owes Oregon voters a clear statement
about what he would do with death penalty cases that reach his desk during a
new term. He's succeeded in keeping the issue at bay thus far in his term, but
we expect more from the governor. Here's an instance where vigorous leadership
could make the difference in reshaping Oregon values for the better.
(source: Editorial, Corvallis Gazette-Times)
WASHINGTON:
Michael Boysen trial set for early 2014 in slaying of grandparents
King County Prosecutor Dan Satterberg has until Aug. 30 to decide whether
Michael Chadd Boysen will face the death penalty if he's convicted of killing
his grandparents in March.
A case-setting hearing was held Friday, July 12, before King County Superior
Court Judge Douglas North, which addressed several issues related to Boysen's
case.
Boysen of Renton faces life in prison or the death penalty if he's convicted.
Boysen's trial was tentatively set for Jan. 27, 2014.
He's being held without bail in the King County jail in downtown Seattle.
Boysen is charged with 2 counts of 1st-degree murder in the deaths of his
grandparents Norma and Robert Taylor in their Fairwood home March 9 shortly
after being released from prison on a burglary conviction.
He was arrested on March 12 in Lincoln City, Ore., where he had fled.
(source: Renton Reporter)
US MILITARY:
Death Penalty Issue for Potential Fort Hood Jurors
Prosecutors asked Monday that three Army officers be dismissed as potential
jurors in the murder trial of the Fort Hood shooting suspect because of their
views on the death penalty.
6 potential jurors - 4 colonels and 2 lieutenant colonels - were brought in
from Army posts nationwide and overseas as questioning continued in the
court-martial of Maj. Nidal Hasan. The Army psychiatrist faces execution or
life in prison without parole if convicted in the 2009 rampage that left 13
dead and nearly 3 dozen wounded on the Texas Army post.
2 of those officers indicated they opposed the death penalty, while a 3rd said
he strongly favored it. Prosecutors want all 3 tossed from the jury pool.
The judge, Col. Tara Osborn, said she would rule on the request Tuesday.
Strongly opposing or supporting the death penalty doesn't disqualify someone
from jury service, though potential jurors who indicate they would refuse to
consider or automatically impose execution will be dismissed.
One colonel brought out for individual questioning said he struggled with the
death penalty issue over moral and religious grounds.
"I question whether fallible human beings can impose death on other human
beings," he told said, adding that he already believes that Hasan is guilty.
Hasan is serving as his own attorney but has asked only a few questions of
potential jurors, including asking another colonel on Monday whether he would
be disobeying God or his church by imposing the death penalty. The colonel, who
earlier said he believed, "thou shalt not kill," told Hasan that was a
difficult question.
A 3rd colonel said he would not always vote to impose a death sentence for
certain crimes, although he had indicated he would do so on his jury
questionnaire. He also said he believed Hasan is guilty.
Hasan's jury will be comprised of 13 to 16 members with ranks equal to his or
higher. Death-penalty cases in the military require at least 12 jurors, more
than in other cases. And unlike other trials, their verdict must be unanimous
in finding guilt or assessing a sentence.
10 potential jurors remain from a group of 20 questioned last week, when jury
selection began. Testimony is expected to start Aug. 6.
Earlier Monday, Osborn told the group that Hasan was wearing a camouflage
uniform worn by troops in combat instead of a dress uniform - usually worn by
defendants in a court-martial - because it better meets his health-related
needs as a paraplegic. Osborn told potential jurors not to hold his type of
uniform against him.
Hasan was paralyzed from the abdomen down after being shot by police the day of
the rampage.
Osborn also told the group Hasan was wearing a beard for his religious beliefs
and not to hold it against him. Although facial hair violates Army rules, Hasan
started growing a beard last summer, saying it was required by his Muslim
faith.
(source: Associated Press)
USA:
Reporter in Brooklyn case challenges witness subpoena
During the death penalty trial of Ronnell Wilson, an article appeared in the
New York Times about a gesture the writer observed after the jury verdict was
read. Wilson's defense attorney now seeks the reporter???s testimony as to the
facts presented in that article.
Wilson was convicted in 2006 of murdering 2 New York City Police Department
undercover detectives during a firearms transaction in Staten Island - and more
recently accused of getting a prison guard pregnant - and sentenced to death
for the murders. The death sentence, but not the conviction, was thrown out due
to prosecutorial error, and a resentencing trial began in Brooklyn federal
court on June 24.
Michael Brick worked for the New York Times in 2007 and was assigned to cover
the Wilson trial. When the sentence of death was announced, Brick noted that
Wilson stuck his tongue out and, according to court papers, his article
"recounted the views of various people, both those involved in the case and
others, about the incident and how it might affect public perception of
[Wilson]."
Brooklyn Federal Judge Nicholas Garaufis ruled that evidence may be presented
in the resentencing case showing "that [Wilson] stuck his tongue out at the
victims' family members after the death penalty verdicts were read aloud in
court."
The victims' widows will also testify that they took Wilson's action to be
"intentional and patently offensive." The government is expected to introduce
this tongue incident as evidence of Wilson's lack of remorse toward his killing
of the 2 detectives.
Wilson's attorneys claim that the gesture was ambiguous and has issued a
subpoena for Brick's testimony as to the incident. Brick, however, in his
motion to quash the subpoena, asserts that he and other journalists "would be
hampered in our ability to cover stories and observe and interview newsmakers
freely if they thought we routinely be called to testify in litigation later."
New York Times attorney Stephen Gikow noted in a letter to the court that the
motion to quash was merely a "precaution," and that he and Brick "expect to
resolve this dispute without the court's intervention."
(source: Brooklyn Daily Eagle)
**************************
Accused 9/11 Plotters May Be Barred From Hearings, Judge Says
Khalid Sheikh Mohammed and 4 others accused of masterminding the terror attacks
on the World Trade Center and the Pentagon will be excluded from pretrial
hearings when classified information is disclosed, a judge said.
The ruling by U.S. Army Colonel James Pohl, who is presiding over a military
tribunal in Guantanamo Bay, Cuba, means the 5 men won't be present for hearings
about their treatment in U.S. custody, said James Connell, a lawyer for one of
the accused. The defendants say they were tortured while held at secret Central
Intelligence Agency sites around the world.
"It is the U.S. government's abuse of the defendants in secret detention which
makes the hearings classified in the first place," Connell said in a statement
today disclosing the ruling. "This ruling is the latest in a series of military
commission decisions favoring secrecy over transparency."
The defendants are accused of organizing the Sept. 11, 2001, hijacking of
passenger airplanes that killed almost 3,000 people when they were crashed into
the World Trade Center in Manhattan, the Pentagon in Virginia, and in
Pennsylvania.
The 5, who have been held by the U.S. for about a decade, may face the death
penalty if convicted. A military trial is at least a year away.
The issue was argued during a week of hearings last month.
"Mr. Mohammed has the right to be present when we're talking about matters that
deal with his torture," his lawyer, David Nevin, told Pohl at the time.
'In Line'
Colonel Todd Breasseale, a Pentagon spokesman, said in an e-mailed comment
today that Pohl's ruling, while still classified, "is in line with similar
decisions reached in federal court when classified material had to be
disclosed."
At last month's hearing, a prosecutor, Joanna Baltes, said the government
wasn't seeking to exclude the defendants from the trial whenever classified
evidence is presented. Rather, she said, the government wanted "protections"
for classified information at the pretrial stage.
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay,
Cuba).
(source: Bloomberg News)
**************
Boston Bomb Suspect Seeks 2nd Death Penalty Lawyer
The surviving suspect in the Boston Marathon bombing is asking to have a 2nd
prominent death penalty expert added to his defense team.
In April, chief federal public defender Miriam Conrad asked a judge to appoint
Judy Clarke and David Bruck to help defend Dzhokhar Tsarnaev.
The judge approved Clarke, a San Diego lawyer and death penalty opponent, but
denied the request for Bruck, a professor at Washington and Lee University
School of Law in Virginia.
Now that Tsarnaev has been indicted on 30 counts, many of which could bring the
death penalty, his attorneys are again asking to add Bruck to the team.
They say he's especially well-qualified because of his extensive experience
with death penalty cases.
Tsarnaev pleaded not guilty to all of the charges last week.
(source: Associated Press)
******************************************
Should Dzhokhar Tsarnaev Face the Death Penalty?
The acquittal of George Zimmerman has taken up most of the news coverage this
week. But with the constant desire for some sort of trial to fill the news
cycle, we'll soon be engulfed in discussion about Dzhokhar Tsarnaev. The 1st
and most important question will be: Should he face the death penalty?
Tsarnaev is incredibly young, and given the slow development of the prefrontal
cortex (key to rational decision-making), the Tsarnaev in prison at age 60 may
be an entirely different person than the Tsarnaev that we incarcerate. So there
may be room for rehabilitation. On the other hand, we could argue that Tsarnaev
may commit another crime from within the prison system, or that his age means
the cost of locking him away for life would be exorbitant. One could argue that
the problem of false conviction is absent in Tsarnaev's case, given the
overwhelming evidence. We may even wonder whether making a 19 year old rot in
prison for life is really more humane than just getting it over with.
The trial raises important questions for our criminal justice system and I
think that a robust case against the death penalty is still possible in the
case of Tsarnaev. It's worth noting that his case is exceptional. Most cases
aren't so clear-cut. That's why the state of Alabama has exonerated 1 convict
for every 5 executed. Florida has exonerated 26 death row inmates. It's likely
we???ve killed an innocent man.
When I write about the death penalty, one of the responses I get the most is
"What about cases where the defendant is certainly guilty?" Since the United
States should only be sentencing defendants guilty "beyond a reasonable doubt,"
an argument like this can lead to a slippery slope. Remember that by using the
best arson investigation techniques of the day, Cameron Todd Willingham was
guilty. Similarly, 9 eyewitnesses originally fingered Troy Davis as the man who
shot a police officer. 7 recanted their testimony. Further, since the death
penalty has little merit as a deterrence there is no reason to use it unless it
is more successful at incapacitating or rehabilitating the prisoner.
This leads to the another objection I hear frequently: Can't an inmate in
prison for life still kill, either in prison or, through a criminal gang,
outside? Am I too quick when I argue that incapacitation can be just as easily
achieved through the prison system? Warren Lee Hill (who is mentally retarded),
for instance, had a life sentence for killing his girlfriend and then killed a
fellow inmate. 2 responses. First, the death penalty doesn't entirely eliminate
this problem. Most inmates spend 14 years on death row, and speeding executions
up will only result in more wrongful executions. But secondly, I think that
this reflects the awful state of our overcrowded prisons, more than a case for
the death penalty. Prisons are understaffed and massively overcrowded with
non-violent drug offenders. They are also incredibly underfunded. All of this
sets up a system with less oversight and more confrontations that could lead to
conflict. With better enforcement and oversight, the risk that a death row
inmate could kill inside or outside the prison would be negligible.
There is also the question of cost. In fact, this argument flows against the
death penalty. Death penalty cases are incredibly expensive because the legal
proceedings are dragged out for 14 years. However, even if the death penalty
were cheaper, I still think that this argument is foolish. If the death penalty
is immoral, then we shouldn't use it even if we save a few bucks. If it is
moral, and justice requires it, then sparing the money is worth it.
In Connecticut, I wrote a letter to the editor about the Cheshire home invasion
case. While I was researching for my letter, I found a statement 1 of the 2
killers, Stephen Hayes, had made saying he'd like to die. His accomplice,
Joshua Komisarjevsky, has expressed a similar sentiment. It's an interesting
quandary. Could it be that death would be the most humane option for the
killers? I'm open to the possibility that those serving for life in prison
might choose to commit a physician-assisted suicide. My only fear is that an
innocent man might commit suicide rather than rot in prison. This could be
mitigated with a 2-year waiting period, along with a consultation with a lawyer
and an independent organization that works on DNA testing, to determine whether
the prisoner could be exonerated.
Finally, there is the question of Tsarnaev's age. With a man as young as he is,
and possibly influenced heavily by his brother, are we truly putting in prison
the same man who will be alive in 40 years? That's a question I'm incapable of
answering. Maybe Tsarnaev will truly rehabilitate, to the point that he can
again be released into society. However, putting him to death leaves no room
for that possibility. Death would not be a deterrent, and it would not further
incapacitate Tsarnaev. It would only satiate our desire for revenge, rather
than justice and rehabilitation. The state should not seek the death penalty.
(source: policymic.com)
*****************
Since Aurora, a steady stream of mass killings
In the year since the movie theater massacre in Aurora, Colo., 23 mass killings
in 19 states have taken the lives of 126 people. 6 of the attacks were public
killings in which many of the victims were unknown to their killers.
A USA TODAY database of these shootings over the past 7 years shows that what
Americans experienced over the past calendar year is sadly typical. There have
been 14 such incidents since Jan. 1 of this year, while 2012 actually had a low
for the reporting period: 22 mass killings. The high was 37 in 2006, the 1st
year of the examination. (The FBI defines mass killings as murders that occur
in a short time span and in which 4 or more people are killed.)
The massacre in Newtown, Conn., in December - during which Adam Lanza gunned
down 20 children and 6 adults at an elementary school - became the moment of
focus of myriad tragedies over the past year. The 5 other shootings that caught
the nation's attention:
In August, white supremacist Wade Michael Page fatally shot 6 people at a Sikh
Temple in Wisconsin in what police called a hate crime. Page, 40, killed
himself after an officer responding to the scene shot him in the stomach.
After learning he'd been fired from his job, Andrew Engeldinger, 36, shot and
killed 5 people at a Minneapolis sign company in September. He then killed
himself.
2 men were fatally shot in Mohawk, N.Y., and two more were shot at a car wash
in Herkimer, N.Y., in March. Kurt Myers, 64, held police in a standoff
overnight before they swarmed the building and killed him.
In April, 3 people died when two bombs exploded near the finish line of the
Boston Marathon. A police officer was killed a few days later after authorities
publicized photos of two brothers considered suspects. One died in a standoff
with police; the second, Dzhokhar Tsarnaev, 19, is charged with using a weapon
of mass destruction.
John Zawahri, 23, was shot dead by police in the library of Santa Monica
College in June. Zawahri had killed his brother and father at home, carjacked a
woman and shot at passersby before entering campus carrying an assault rifle.
The USA TODAY analysis of all such incidents since 2006 has found that they
occur roughly every 2 weeks and that random public shootings such as Aurora and
Newtown are anomalies. Typically, victims know their killers, and most are
killed at home.
The other 17 mass killings in the past year - most either family slayings or
murders that occurred in the course of a robbery or drug transaction - occurred
off the national radar. On an American Indian reservation in North Dakota in
November, a man entered his neighbor's house a block away and shot dead a
grandmother and three of her grandchildren, then drove 20 miles to his father's
home and killed himself. A man in Schenectady, N.Y., could face the death
penalty in an arson that trapped a father and his three young children on the
upper floor of their home in early May.
As is often the case in the wake of these high-profile events, the nation has
undergone a sort of soul-searching involving the issues of gun control, mental
health treatment and the undercurrent of violence in American society.
Though the high-profile cases, particularly Newtown, stirred outrage and
spawned talk of new gun policies, the legislative impact has been minimal.
Indeed, the U.S. Senate voted down measures in April that would have expanded
background checks on gun buyers, along with other proposals, including an
assault weapons ban.
Some states, including Nevada, California and New York, have either passed or
are considering gun legislation ranging from expanding background checks to
banning high-capacity magazines, which is what Lanza used in Newtown.
(source: USA Today)
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