March 31
OHIO:
Michael Madison, accused serial killer in 3 East Cleveland deaths, to stand
trial Monday
Michael Madison, the East Cleveland man charged with murdering 3 women and
mutilating their corpses, will go on trial starting Monday, nearly 3 years
after he was charged with the crime.
Madison was in court Wednesday at a final pretrial hearing in front of Cuyahoga
Common Pleas Judge Nancy McDonnell. The judge decided that Madison may be
referred to as a serial killer during the jury trial.
Madison's attorneys, John Greene, Christine Julian and David Grant, had
objected to use of the moniker in an October motion and told McDonnell they
plan to file a rebuttal to the decision.
"It is not a legal term, it is simply used for inflammatory purposes and it
infringes on our clients right to a fair trial," Grant said.
The trial is expected to last a month. If he is found guilty of the serial
murders, Madison will face either life in prison without parole or the death
penalty.
Police found corpses of 3 women in Madison's garage in July, 2013. He was
charged later that month on 14 counts, including aggravated murder and has
remained in prison ever since on $6 million bond.
The rotting bodies, wrapped in duct tape, belonged to 38-year-old Angela
Deskins, 28-year-old Shetisha Sheeley and 18-year-old Shirellda Helen Terry.
Procedural delays have since slowed Madison's case from going to trial,
including a lengthy psychiatric evaluation and a failed motion in October to
have a special prosecutor take over the case from Cuyahoga County Prosecutor
Timothy McGinty.
At pretrial Wednesday, McGinty and defense attorneys argued over language in
questionnaires that will be distributed to jurors, specifically the wording of
a question about whether or not jurors are opposed to the death penalty or are
willing to acquit someone for murder in some circumstances.
A pool of 75 jurors will be pulled Monday morning and seated in McDonnell's
courtroom. It is expected to take at least 1 week to select 12 jurors and 2
alternates.
(source: cleveland.com)
ILLINOIS:
Bring back the death penalty
To the Editor:
I think George Ryan made a mistake doing away with the death penalty. 50 years
ago, my mom's cousin got robbed and killed in Chicago. For what? A paycheck for
$100. The 2 who did it got life in prison.
It's sad that is still going on. My friend lost his son and his (son's)
girlfriend to "an animal," in my words. They were beaten to death. They didn't
deserve that. I'm sorry to see them go through this (and I thank the Joliet
police for catching this low-life).
To those who think it's inhumane - death by lethal injection: Look at what they
did to their victims. In my opinion, they get off easy.
Louis Purkhart Sr.
Joliet
(source: Letter to the Editor, The Herald-News)
OKLAHOMA:
Oklahoma death penalty panel has its work cut out
The U.S. Supreme Court has said as recently as last year, when it ruled on a
sedative that's used in Oklahoma executions, that the manner in which Oklahoma
carries out the death penalty is constitutional. But is the same true of the
overall process?
This will be the focus of a yearlong study to be led by former Gov. Brad Henry,
with help from the Constitution Project, a research nonprofit based in
Washington, D.C. Those involved intend to look at the death penalty in Oklahoma
from top to bottom, from arrest to execution, and gauge the fairness of the
system.
There are many, in Oklahoma and across the country, who believe the entire U.S.
criminal justice system is patently unfair, and they point to the large numbers
of blacks and indigent offenders who wind up behind bars nationwide. Do race
and economic status play outsized roles in Oklahoma's capital cases? This is
sure to be explored.
We have written many times through the years about the burden carried by the
Oklahoma Indigent Defense System, which does the important work of providing
counsel for those who can't afford a personal attorney. The OIDS, with a budget
of $16 million, handles roughly 44,000 cases per year in its 75 counties
(Oklahoma and Tulsa counties have their own systems). These include murder
cases which, depending on circumstances, could carry the death penalty.
OIDS attorneys could have as many as 30 to 40 open cases at a time. The
agency's executive director handles half a dozen or more cases himself each
year, due to staffing concerns. His agency has roughly a half-dozen
investigators spread across Oklahoma. District attorneys' offices, meanwhile,
have several investigators, along with other resources at their disposal to use
in prosecuting their cases.
This would seem to tilt the playing field decidedly against those who must use
the indigent defense system. On the other hand, death penalty cases have
several steps of review built in, and wrongful prosecutions in Oklahoma death
penalty cases have been rare. According to the Death Penalty Information
Center, 10 Oklahoma death row inmates have been exonerated through the years.
The state has carried out 112 executions since 1976, and has 49 inmates on
death row today.
All Oklahoma executions have been on hold since October, when a moratorium was
put in place at the request of Attorney General Scott Pruitt. His office is
investigating circumstances that led to the wrong drug being delivered to the
state prison for use in 2 executions last year, one of which was carried out.
The other was halted in September.
Mark Henrickson, who represents the inmate whose execution was postponed, says
Oklahoma is "at a critical phase" with the death penalty, due partly to the
state's current budget problems. "I can be sure they're not sending more funds
to make sure people get fair cases," Henrickson said.
The new commission includes judges, prosecutors, public defenders, former
elected officials and others. Members have a lot of heavy lifting to do during
the next year. Henry, who approved several executions during his 2 terms as
governor, rightly noted that the consequences in these cases couldn't be
higher. Thus, the death penalty "needs to be done right."
We wish the commission luck and look forward to what it finds about Oklahoma's
process in carrying out the ultimate punishment, a penalty that has run aground
in a majority of states but still enjoys strong public support here.
(source: Editorial Board The Oklahoman)
CALIFORNIA:
Sacramento judge orders suspect, wife to stand trial in deputy killings
A judge on Wednesday ordered Luis Monroy Bracamontes and his wife to stand
trial in the Oct. 24, 2014, slayings of 2 Sacramento-area deputies, setting the
stage for a protracted legal battle that already has gone on for more than a
year.
Sacramento Superior Court Judge Steve White found that after 3 days of
testimony in a preliminary hearing that there is enough evidence to warrant a
trial. He set the next hearing in the case for June 17.
Bracamontes, who faces the death penalty, is accused of a daylong rampage that
began in a Motel 6 parking lot on Arden Way and ended in Auburn.
Sacramento County sheriff's Deputy Danny Oliver was killed at the motel; Placer
County sheriff's Deputy Michael Davis Jr. was killed in an ambush in an Auburn
cul de sac.
Bracamontes, who has acted out in numerous court sessions, remained silent most
of Wednesday, following a stern admonishment from Judge White the day before.
But once it became clear that White would order a trial and began to read the
charges against Bracamontes and his wife, the suspect began to grin broadly.
His wife, Janelle Monroy, was seated at a separate table from her husband. She
held her hands over her face while she appeared to weep quietly.
Her lawyer, Pete Kmeto, argued unsuccessfully that there is no evidence she
took part in the violence, that instead she was following orders from her
husband after he killed Oliver. "Ms. Monroy is being told what to do by an
armed man who has just shot a Sacramento deputy," Kmeto argued.
Prosecutor Rod Norgaard disagreed, saying she helped move the rifle that killed
Davis from one carjacked car to another and "was in for a penny, in for a
pound" in the crime spree.
Neither suspect entered a plea Wednesday.
White's ruling came after Norgaard and co-prosecutor Dave Tellman presented
testimony from 16 witnesses.
Unlike past appearances, Bracamontes remained silent until White asked him if
he agreed to waive time in the case until the next hearing in June. "I got no
choice," Bracamontes said.
"Yes, you do," White countered, in reference to the fact that suspects can
demand to go to trial rather than agree to delays. He then agreed to the
waiver.
As he was being escorted out of court following the hearing, Bracamontes paused
briefly as he passed by the judge.
"See you again," he told White.
(source: Sacramento Bee)
**************
Convicted killer to get change of venue hearing
It is a big day in court for the former Chico State football player sitting on
death row in San Quentin for the brutal 1987 murders of a Chico couple.
Steven Crittenden's change of venue hearing is scheduled for Wednesday morning.
Back in October, the ninth circuit court of appeals court sided with
Crittenden, who is African American, stating he did not get a fair trial when
he was convicted of murdering and torturing Dr. William Chiapella and his wife
Katherine in their Chico home, paving the way for a new trial.
The appeals court said Butte County prosecutors were racially motivated when
they rejected the only prospective African American juror.
Prosecutors said the juror was dismissed because he objected to the death
penalty and not because of race.
(source: actionnewsnow.com)
WASHINGTON:
Selah man faces 2 aggravated murder charges in Yakima Moneytree killings
Prosecutors filed 2 charges of aggravated 1st-degree murder Wednesday against
the Selah man accused of gunning down 2 women outside a Yakima payday lender
Saturday morning.
Manuel Enrique Verduzco, 26, is also charged with first-degree burglary in
connection with the killings at Moneytree, 129 S. First St.
Prosecutors allege that Verduzco, a former Moneytree employee, shot Marta
Martinez, 30, and Karina Morales-Rodriguez, 27, as they were opening the store
for the day. Police responding to a report of shots fired around 6:15 a.m.,
found Morales-Rodriguez's body in the parking lot, and Martinez's on East
Walnut Street near Moneytree.
They were the 4th and 5th homicides in the city this year. Authorities are
still trying to determine a motive for the crime, but have not ruled out a
botched robbery attempt.
Yakima County Prosecuting Attorney Joe Brusic said aggravated 1st-degree murder
can apply in cases where someone is killed to cover up a crime, multiple people
are killed during the commission of a crime, or as part of a 1st-degree
burglary. State law defines 1st-degree burglary as illegally entering a
building while armed to commit a crime.
In cases of aggravated 1st-degree murder, prosecutors can seek a death penalty,
otherwise a conviction carries a sentence of life without parole. Gov. Jay
Inslee has imposed a moratorium on executions.
Moneytree employees identified Verduzco from store surveillance footage of the
attack, a police affidavit said. One worker reported seeing Verduzco at
Moneytree the previous morning when she went to open the business, the
affidavit said, and noted that he kept changing his reason for being there.
Verduzco was arrested later Saturday at his parents' Yakima home without
incident. He is being held on $1 million bail and is scheduled to be arraigned
April 11.
Court records show Verduzco has no prior felonies, but he was cited Jan. 30 for
driving under the influence. His case is pending in Yakima County District
Court.
(source: Yakima Herald)
USA:
It's Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty -
Here's How It Failed ---- A close look at the grand compromise of 1976.
In early April 1976, Potter Stewart, Lewis Powell, and John Paul Stevens met
for lunch at the Monocle, a venerable Washington steakhouse, and decided the
future of the American death penalty. The three U.S. Supreme Court justices
were in a bind. Each harbored substantial misgivings about capital punishment,
but each man - Stewart especially - also felt constrained by the issue's
peculiar constitutional history and by the tidal wave of public support that
returned the death penalty to the Supreme Court just 4 years after a splintered
court had declared it dead.
In 1972, Stewart had brokered a 5-4 decision holding that the death penalty as
then practiced violated the Eighth Amendment's ban against cruel and unusual
punishment. The court's ruling - in Furman v. Georgia - was a spectacular long
shot. Just one term earlier, in 1971, the justices had upheld the
constitutionality of the death penalty under the due process clause of the
Fourteenth Amendment. Furman seemed headed in the same direction until Stewart
struck an eleventh-hour deal with Justice Byron White, who'd been on the fence
for most of the term. Stewart would abandon the moral statement against the
death penalty that he'd intended to make and would instead say that the problem
with capital punishment was excessive arbitrariness.
Arbitrariness thus became the dominant theme in the most splintered decision in
Supreme Court history. Each justice in the Furman majority wrote his own solo
opinion - meaning that he spoke only for himself. Each emphasized a different
aspect of arbitrariness. Some focused on racism. Some focused on the failure of
states to condemn only the "worst" criminals. Some focused on the infrequency
with which the death penalty was employed. No one said precisely how much
arbitrariness violated the Constitution. Surely Stewart understood, as his
colleagues must have, that the focus on arbitrariness - as opposed to deeming
capital punishment unconstitutional per se - left the door open for states to
rewrite their laws. Nevertheless, the justices believed that, as Stewart told
his clerks, "The death penalty in the United States was finished."
That intuition couldn't have been more wrong. Between the Furman decision and
1976, 35 states passed new death penalty statutes. 7 made the death penalty
mandatory for murder. Others, including Georgia, instead attempted to make the
process less "arbitrary" by requiring capital jurors to find "aggravating"
factors, by separating capital trials into the guilt/innocence and sentencing
phases we see today and by guaranteeing appellate review of all death
sentences.
The political and legal momentum against Furman forced the justices to
reconsider their positions. So, over 2 days of oral argument beginning on March
30, 1976, the justices evaluated the constitutionality of the various new state
approaches, with Georgia's new statute as the test case. The hearing had the
feeling of a heavyweight prize fight, pitting against one another 2 of the
great lawyers of their generation: Solicitor General Robert Bork, who, a decade
later, would be nominated to the Supreme Court, and Anthony Amsterdam,
principal architect of the NAACP Legal Defense Fund's victorious strategy in
Furman and widely acknowledged as the greatest civil rights lawyer of the 20th
Century.
2 days later, on April 2, the justices met in conference to consider the new
death penalty laws. Justices William Brennan and Thurgood Marshall said they
would reject both the statutes that made a death penalty mandatory for murder
as well as statutes that gave jurors the discretion to sentence defendants to
death. Justice White and 3 of the Nixon appointees - Justices William
Rehnquist, Harry Blackmun and Chief Justice Warren Burger - said they'd uphold
both approaches. The case came down to Justices Stewart and Stevens and Nixon's
4th appointee, Justice Lewis Powell.
At that Washington steakhouse, the troika, as they'd come to be known, decided
to split the baby. They would reject the mandatory statutes, which they
regarded as barbaric, but uphold the guided discretion approach. Together with
the four Nixon appointees, they formed a 7-2 majority in Gregg v. Georgia,
upholding Georgia's new discretionary law, and, with Marshall and Brennan, a
separate 5-4 majority rejecting the mandatory statutes. This Solomonic
compromise created the bedrock principles of modern death penalty
jurisprudence: that a non-arbitrary death penalty satisfies the Constitution
and that the requirement of non-arbitrariness could be satisfied by Georgia's
approach.
The Gregg decision revived the American death penalty. It also began a social
experiment. Underlying Gregg is an empirical proposition: legal standards would
make capital jury decisions more predictable. "Let's have them be as guided and
as rational as they can be," Stewart told his law clerk Ron Stern in 1976. Yet
in 5 years of archival research and interviews for my book A Wild Justice, I
found not a shred of evidence that any of the justices considered social
science data. Certainly none is cited in the opinion. The most striking
features of the compromise Stewart, Stevens and Powell embraced was the speed
with which it was reached, the absence of supporting empirical evidence, and
the 3 men's unquestioning faith in the power of law and the state and local
officials sworn to carry it out.
40 years later, the data are in on the court's grand compromise. How one
interprets the results may depend on what's being asked. If the essential
question today is whether the death penalty is still being applied arbitrarily,
the answer couldn't be clearer. Arbitrariness is rampant. But, on the occasion
of Gregg's ruby anniversary, let's ask a more refined question, which more
directly honors the case's peculiar history: Is arbitrariness less of a problem
than it was before the Supreme Court got involved in 1972? In other words, has
Gregg worked?
The answer is a conclusive, resounding no. Whether one interprets the Furman
decision to have been about - individually or collectively - excessive racism,
a failure to identify the "worst of the worst" among murderers, the death
penalty's sporadic use, or simple geographical randomness, the "guided
discretion" statutes endorsed in Gregg haven't remotely fulfilled their
promise. Randomness has not been reduced and in many respects has grown
substantially worse.
Almost all of the justices in Furman noted the low percentage of death-penalty
eligible murders that resulted in death sentences. They estimated the rate to
be between 15% and 20%. From this statistic, the justices drew different
conclusions. Brennan and Marshall cited it as evidence that the death penalty
had been rejected by contemporary standards of decency (though the truth is
they would have opposed the death penalty regardless). White said an
infrequently-used death penalty couldn't adequately deter crime. His
idiosyncratic opinion seemed to invite mandatory laws.
A 3rd view seemed to get at something important about what a constitutional
death penalty might look like. Not even the most ardent supporters of the death
penalty believe that all murderers should be executed. Somewhere a line has to
be drawn, and it should be drawn in such a way that juries regularly accept the
penalty's use. For example, if a state restricted its use of the death penalty
to mass murderers it presumably would generate a high sentencing rate. As the
state broadened its law to include less aggravated kinds of murder its
sentencing rate would decline as jurors (or judges) rejected borderline capital
charges.
Implicit in Furman was the premise that states had for decades defined the
universe of death-eligible murders too widely. Implicit in Gregg was the
premise that guiding jury discretion would create some balance between
death-eligible cases and actual death penalties. But 40 years of statistics
tell us that the death penalty is even rarer than it was before.
In gross terms, U.S. executions have been trending downward for some time.
Annual executions peaked at 197 in 1935, hovered between 50 and 100 per year
during the 1950s, fell further after the NAACP Legal Defense Fund took on the
death penalty in the mid-1960s, and temporarily ended with Furman. Post-Gregg,
executions peaked at 98 in 1999. They've been declining fairly steadily since.
35 people were executed in 2014. Last year, states killed 28 people, the lowest
total since 1991. Death sentences have been dropping too - from more than 300
annually in 1995 and 1996 to 73 last year.
Over this period, death-sentencing rates - meaning the the percentage of
murders eligible for the death penalty who are actually sentenced to death -
have experienced a parallel decline. Almost every state-level study has
identified a rate either at the low end of, or substantially below, Furman's
15%-20% threshold. In California, the nation's largest producer of death
sentences, the most comprehensive statewide studies have identified a
sentencing rate between 4.6% and 5.5%. In a review of 34 years of Connecticut
death penalty cases, Yale's John Donohue found a sentencing rate of 4.4%. A
study of all Colorado murder convictions between 1999 and 2010 revealed a rate
of 0.56%.
Pause for a moment to note that these are only sentencing rates. Between 1973
and 2013, only 16.1% of people sentenced to die were ultimately executed. In
other words, the chance of being executed - among defendants sentenced to die -
is only about 1 in 6. The probability of receiving the death penalty in the
U.S. is miniscule. The Centers for Disease Control reported 16,121 homicides in
2013, while states conducted 39 executions - an execution rate of approximately
.24%.
Why sentencing rates are so low is no secret. Rather than define a narrow,
clear universe of the most aggravated crimes - such as mass murder - states
have moved in the opposite direction and included more and more kinds of
homicides as death eligible. The Supreme Court has countenanced this, saying
that any aggravating factor is constitutional so long as it doesn't include
everyone. For example, the court upheld Idaho's aggravating factor that made
someone death eligible who "exhibited utter disregard for human life,"
presumably drawing a distinction between murderers who show "utter" and, say,
"mere" disregard for human life. The court has similarly upheld a "cold,
calculated" aggravating factor and yet another for murders that are "especially
heinous, cruel or depraved," although it's hard to imagine a murder that isn't
cold or cruel or heinous.
These are the worst examples, though, and reasonable arguments can be made in
favor of many aggravating factors. The devil is in how they work together.
Consider this: some states - superficially reasonably - make a murderer death
eligible if the victim is very young. Other states make it an aggravating
factor to kill an elderly person. Some states include both. Each aggravating
factor can be defended individually. The young have more life ahead of them.
The elderly are less able to defend themselves. But by this logic, why not
include murders of the infirm, as many states do, or pregnant women, as some
states do, or, for that matter, all parents, on the reasoning that they have
more responsibility?
Collectively, aggravating factors fail to accomplish Furman's fundamental goal
of limiting the circumstances in which the penalty may be applied. A California
study found that 87% of murders are potentially eligible for the death penalty
under the state's definitions. In Colorado, the rate is 91.1%.
Some abolitionists fear that pushing the Court on this point would lead to
another death penalty reset, and that states would respond, as they did after
Furman, by yet again rewriting their laws. What would happen is impossible to
know, of course. Perhaps the court would see that 40 years of history shows
that the political temptation to protect every category of murder victims is
irresistible - once a state legislature has decided to make police killers
death eligible, how, for example, does it refuse corrections officers or
firefighters? Perhaps the court would conclude that writing a meaningfully
nuanced death penalty law is therefore impossible. Or, perhaps, we'd live
another generation with slightly narrower but still grossly imperfect statutes.
The only thing that can be said conclusively is that states have failed to
engage in the kind of "limiting" exercise Furman intended to require.
Prior to Furman, the American death penalty was largely a Southern phenomenon.
Between 1930 and 1967, of the 3,859 executions carried out in the U.S., 2,306 -
59.7% - occurred in the South. It was his concern with the racist application
of the death penalty in the South that motivated Justice Arthur Goldberg and
his law clerk Alan Dershowitz to take on capital punishment in the early 1960s,
even though no one in the court and almost no one in the scholarly community
believed it to be unconstitutional.
Since Gregg, the American death penalty has become almost exclusively a
Southern phenomenon. Of the 1,429 executions conducted in the U.S. since 1976,
1,163 - 81.3% - have been carried out by Southern states. The three most active
death penalty states - Texas, Oklahoma and Virginia - have been responsible for
52.9% of executions since 1976. Texas, by itself, accounts for 37.6% of the
total. Of the 28 executions carried out in 2015, 13 occurred in Texas. Of the 9
carried out so far this year, Texas has conducted 5. It makes no sense to speak
of an American death penalty. There is the South and everywhere else.
Over the past few years, better data have facilitated study of how the death
penalty functions at smaller geographical units than the state. The picture
that has emerged from this disaggregated data is about as random as could be
imagined. In 2012, just 62 of the 3,143 counties in the U.S., or 1.9%,
accounted for all American executions. Since 1976, only 15% of counties have
sentenced someone to die who was eventually executed. The top 15 most active
death penalty counties have been responsible for more than 30% of all
executions. Generally speaking, rural areas use the death penalty far less than
cities. For example, the odds of receiving the death penalty in Cook County are
approximately 83% lower than for killing someone in rural Illinois.
Some of the quirks are bizarre. Murder defendants in Maryland's Baltimore
County, which has a comparatively low crime rate, are 23 times more likely to
receive the death penalty than murder defendants in neighboring Baltimore City,
which has a much higher crime rate. Geographic luck plays such an extensive
role, it doesn't make sense to speak of the death penalty system as a "system."
Even in Texas, only a handful of the state's 254 counties seek capital
punishment with any regularity. Harris County is single-handedly responsible
for 280 of the state's approximately 1,000 post-Furman death sentences.
Geographic arbitrariness is interrelated with racism. In a study of murder
convictions in Alameda County, Steven Shatz and Terry Dalton found the district
attorney was substantially more likely to seek the death penalty in the
overwhelmingly-white southern half of the county than in the north, where more
than 30% of residents are African-American - mirroring the race-of-victim
racism noted in the overwhelming majority of death penalty studies. The closer
one looks, the bleaker the picture. A system serious about creating consistency
would require a statewide authority - say, a panel of experts - to make uniform
death penalty recommendations, but none does, and the Supreme Court has not
said one is required.
Probably the most basic concept in the court's concern over arbitrariness is
that the death penalty should be reserved for the most culpable offenders.
Reasonable minds may differ on the morality of the death penalty, but we have a
shared understanding that if it does exist, it should be reserved for the worst
of the worst.
Some arbitrariness is an inevitable product of federalism. Many highly
"aggravated" murders are exempt from the death penalty because they take place
in an abolitionist state. Many less "aggravated" murders result in death
penalties because they occur in active capital states. Given federalism, the
Gregg court must have meant that states are supposed to make internally
consistent decisions about who gets the death penalty. Some states may choose
to prioritize protecting cop killers, for example, other states would choose to
prioritize protecting the very young or very old. But whatever the state's
internal calibration of culpability may be, it needs to be applied
consistently. Even judged by this more modest goal, Gregg has been a failure.
In his study of capital sentencing in Connecticut, Yale Law School's John
Donohue identified 205 potentially death eligible murders in the state between
1973 and 2007. Among these, death sentences were imposed in 12 cases, 9 of
which were upheld on appeal. For each defendant, Donohue calculated an
egregiousness score by coding for factors that influence jurors, such as the
extent of the victim's suffering, the defendant's motive, the number of
victims, and mitigating factors, such as mental illness or impairment.
When he compared the egregiousness of the 9 defendants sentenced to die with
the other 196 cases, only 1 of the 9 was among the "worst of the worst," which
he defined as being within the 15% most egregious cases. The other 8 death
sentences couldn't be justified. As many as 170 of the defendants who'd been
spared had committed more aggravated murders than the defendants who'd been
sentenced to die.
Another study by Drake Law School's David McCord used a "depravity point
calculator" to review media accounts of murders, and again found no
consistency. Among murderers who didn't receive death sentences, 159 were more
depraved than many of those who were sentenced to die. The question that we've
asked together here - whether Furman and Gregg made the administration of the
death penalty better, or at least less awful - makes no sense in this context.
The system operates almost completely irrationally.
Again, it's not difficult to identify why. The Supreme Court does not require
guidelines for prosecutors in deciding whether to charge a defendant with the
death penalty and no states have any. Nor does the court require - and again
most states do not give - any guidance to jurors beyond the simple instruction
that they need to find the presence of an aggravating factor. Jury decisions
are effectively unreviewable, and abundant research shows that jurors show
little consistency in how they evaluate evidence and are often swayed by
irrelevant factors, such as race. Access to, and the quality of, mitigation
experts varies widely, though these professionals play an essential role in a
defendant's case.
Most damningly and damagingly, the court does not require that capital
attorneys have training in the death penalty. To the contrary, the bar has been
set about as low as it could imaginably be set and, not surprisingly, the
quality of representation varies widely. Stephen Bright, head of the Southern
Center for Human Rights, says what distinguishes the cases in which the death
penalty is imposed from those in which it is not "is not the facts of the
crime, but the quality of legal representation."
Carol Steiker and and Jordan Steiker, of Harvard and University of Texas
respectively, say that, whatever the text of Furman and Gregg may have been,
the cases were really about racism. Indeed, race is a substantial part of what
got and kept Arthur Goldberg and Alan Dershowitz involved in the issue over the
course of their lives. It's certainly what attracted NAACP Legal Defense Fund
lawyers Tony Amsterdam and Michael Meltsner, who together did more to shape
death penalty law than any other attorneys in American history. The question
here, though, isn't whether racism continues to affect capital sentencing - it
clearly does - but, rather, whether Gregg helped.
The gross numbers are disquieting. Of the 1,429 executions conducted since
Gregg, 494 defendants - 34.6% - have been African-American. By comparison, in
the most recent census, 13.2% of respondents identified themselves as black or
African-American. So, black men - only 16 women have been executed since 1976 -
are overrepresented on death row by almost triple.
In 1980, a team of researchers from the University of Iowa led by David Baldus
undertook a mathematically rigorous examination of the influence of race on
death penalty decisions in Georgia between 1973 and 1979, coding for 230
potentially explanatory variables. They found that blacks who killed whites
were 22 times more likely to receive the death penalty than whites who killed
blacks. In only 2 of the 2,484 cases reviewed was a white defendant sentenced
to die for killing a black person. This race-of-victim effect has been
re-observed time and again, in different states and over different time
periods.
Baldus's study, widely recognized as the seminal one of its kind, became the
basis for an Equal Protection Clause challenge to the death penalty, which the
court rejected, 5-4, in 1987. Lewis Powell wrote the majority opinion and cast
the decisive vote in McCleskey v. Kemp during what would be his last term in
office. Just 4 years later, he told his biographer that he regretted his vote,
would change it if he had the chance, and that he'd "come to think capital
punishment should be abolished."
Abolitionists generally focus on Furman and Gregg as the pivotal moments in
this legal history, but it's McCleskey that did the real damage. The death
penalty is a statistically trivial phenomenon. Had McCleskey ruled the use of a
punishment unconstitutional because of racism in its implementation, criminal
justice in the United States would have been transformed. It didn't, because of
a single, almost-immediately-regretted vote, which ended the relevance of
statistical evidence of racism under the Equal Protection Clause.
Others who have looked carefully at components of the system have found
profound evidence of racism. Stanford Professor Jennifer Eberhardt, expanding
upon Baldus's data, showed that in cases involving a white victim, black
defendants were more than twice as likely to receive a death sentence if they
had a "stereotypically Black appearance" than if they were lighter skinned, had
a narrowed nose and thinner lips. If you keep one fact in your hip pocket for
dinner-table arguments about the death penalty, I'd say make it this: Since
Gregg, 327 Americans have been executed for interracial murders. Of these 296
were for black defendants who killed white victims. 31 -9.4% - were for whites
who killed blacks.
Whatever they may have written, Stewart, Stevens and Powell's true project in
Gregg was to rationalize the American death penalty and make sentencing
decisions turn on the severity of a defendant's offense instead of random
factors, such as where the crime occurred, or insidious factors, such as race.
On the occasion of its 40th anniversary, we can deem that project a complete
and dismal failure. Virtually all murders are death eligible. States have made
no effort to define capital murder with any precision.
Given what we know about the history of Gregg, and the subsequent evolution of
the deciding justices' views, it's clear that if the evidence presented here
had been available to the justices at the end of their careers, the outcome of
the 1976 cases would have been a 6-3 decision rejecting the death penalty as
unconstitutional. At a time when the balance may shift on a Supreme Court that
may already be poised to end the death penalty, this seems like an anniversary
message worth repeating.
(source: Evan Mandery, a professor at John Jay College of Criminal Justice, is
the author, most recently, of "A Wild Justice: The Death and Resurrection of
Capital Punishment in America."----themarshallproject.org)
*****************
Conservatives push for nearly unthinkable death penalty ban
A former gun industry lobbyist and budget-hawk Republicans are leading what
might seem to be an unlikely hard-right campaign - trying to sway conservatives
in places like Utah and Kansas that they should be the 1st Republican-held
state in 4 decades to ban the death penalty.
The push from the political advocacy group Conservatives Concerned about the
Death Penalty and lawmakers in places such as Nebraska would have been
unthinkable a few years ago when it would have been conservative heresy to end
capital punishment, a program seen as bedrock issue of the law-and-order
policies embraced by the party.
But those leading the campaign say the death penalty is a costly, inefficient
and heavily bureaucratic program that runs counter to their core conservative
values of limited government.
"This is not an issue just for bleeding heart liberals. This is an issue that
pragmatic conservatives are getting on board with," said Marc Hyden, a
coordinator of Conservatives Concerned about the Death Penalty, a network of
political and social conservatives who say capital punishment does not align
with their values.
Republican support for the death penalty remains strong at 76 % in 2014, but
that number is down from 85 % in 1994, according to Gallup.
The conservative push against the death penalty is in its early phase but has
led lawmakers in Nebraska last year to be the 1st Republican-dominated state in
more than 40 years to approve an execution ban. The measure now needs approval
from voters in November to take effect. In March, lawmakers in red-state Utah
came close to passing a similar ban.
"This is a bipartisan issue that anyone can get on board with," said Hyden, who
served as a campaign field representative for the National Rifle Association.
The death penalty is legal in 31 U.S. states. But executions have been on the
decline for years, in part due to court battles and a scramble to secure
execution drugs after a sales ban a few years ago imposed by mostly European
manufacturers who said it was immoral for their products to be used to kill
inmates.
Hyden's group is expanding its efforts in Kentucky, Missouri, Montana,
Nebraska, North Carolina and Washington to build bipartisan support in
legislatures where rancor between parties has stymied scores of other bills.
But despite the momentum with conservative lawmakers, gaining support among the
public in Republican-controlled states may be a hurdle too high.
'NO SENSE'
A death penalty repeal bill in Missouri, which has executed 86 people since the
U.S. Supreme Court reinstated capital punishment in 1976, was placed on this
year's informal calendar, a wasteland for legislation without the votes to
pass.
In red-state Utah, which has nine men on death row, the Republican-led bill to
end the death penalty cleared the Senate and a House committee before dying
without obtaining a vote. It likely will come up again in a session next year.
Utah State Senator Steve Urquhart, a Republican, said he won supporters among
Senate colleagues by highlighting capital punishment's high costs, lengthy
appeals and exonerations in other states, which underlined its fallibility.
"The death penalty makes absolutely no sense in 2016," he said in an interview.
"It costs an awful lot of money to execute a prisoner compared to holding that
prisoner in jail for the rest of his or her life."
A state study found that Utah pays about $1.7 million more to fund items such
as appeals, public defenders and carrying out executions for death penalty
convictions than it would to incarcerate the same inmate for life.
But advocates of capital punishment balk at the idea that expense should be a
factor when deciding punishment for the gravest crimes.
"The death penalty should not be a utilitarian issue in terms of weighing the
costs against the benefits but rather an issue simply of justice, of who
deserves it," said Robert Blecker, a professor at New York Law School.
The 6 states before Nebraska to abolish the death penalty since 2007 have been
left-leaning or left-center Maryland, Connecticut, Illinois, New Mexico, New
Jersey and New York.
(source: Reuters)
***********************
Kingsmen killer could face death penalty in federal case
Andre Jenkins, in prison for life and with no chance of parole, would seem to
have little to lose.
And yet, the convicted killer found himself in federal court this week facing
charges that could lead to an even worse fate - the death penalty.
Jenkins is 1 of 2 defendants in another Kingsmen motorcycle case charged with a
federal death penalty-eligible crime.
In seeking the death penalty, prosecutors claim Jenkins and David Pirk, the
club's national president, plotted and carried out the murders of fellow
Kingsmen Daniel "DJ" Szymanski and Paul Maue in September 2014. Under federal
law, an intentional, premeditated murder can be grounds for seeking the death
penalty.
"He absolutely denies the charges and maintains his innocence," Barry Covert,
Jenkins' defense lawyer, said earlier this week.
Covert, who handled 2 previous death penalty cases, declined to comment on the
likelihood of his client's prosecution becoming a capital case, but others
suggested privately that it's a long shot.
"No case becomes a death penalty case unless the attorney general authorizes
it," said U.S. Attorney William J. Hochul Jr.
It was Hochul, armed with a grand jury indictment, who filed the murder charges
against Jenkins and Pirk. But his boss, U.S. Attorney General Loretta E. Lynch,
will be the one who decides if the death penalty is ultimately sought.
In the past, attorneys general have been reluctant to use the death penalty in
gang cases or when the prosecution involves what some lawyers call
"gang-on-gang" killings.
It's also no secret that Lynch's predecessors approved the death penalty in
less than 13 % of all eligible cases and that no one on federal death row has
been executed since 2003.
Defense lawyers and prosecutors say most federal death penalty cases are
high-profile prosecutions involving terrorism or a large number of victims.
They point to the Boston Marathon bombing and Dzhokhar Tsarnaev, who was
sentenced to death last year.
Federal prosecutors, in their indictment of Jenkins, Pirk and 14 other
Kingsmen, claim the 2 murders at the heart of the case were carried out after
"planning and premeditation" by Pirk and Jenkins.
Jenkins previously was convicted of the murders in state court and is currently
serving a sentence of life without parole.
The federal case also revolves around the government's claim that the Kingsmen
are a criminal organization that supports itself with drug dealing,
prostitution and illegal firearm sales and relies on murder, kidnapping and
violence to protect the club.
This is not the 1st time Hochul has sought the death penalty. His office, in
fact, has acquired a reputation for being aggressive - some say overzealous -
in death penalty cases.
In 2011, The Buffalo News reported that Hochul's office filed more eligible
cases in the 2 previous years than all but two federal prosecutors in the
country. None of those cases was approved by the attorney general, and defense
lawyers say the strategy overburdened the courts and cost taxpayers hundreds of
thousands of dollars.
"We're prosecuting very, very violent cases," Hochul said earlier this week.
"We always go where the crimes and criminals take us."
And Hochul offers no apologies. He often speaks to block clubs and community
groups and they are unanimous in their support of his anti-gang campaign, he
said.
Hochul also has the backing of local law enforcement, many of whom think the
federal death penalty provides an incentive for guilty defendants to take plea
deals or to cooperate with prosecutors.
Prosecutors told U.S., Magistrate Judge Michael J. Roemer, who is handling the
Kingsmen case, they hope to have a final decision from the attorney general
next week.
(source: Buffalo News)
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