Sept. 4
VIRGINIA:
Virginia must reform its approach to the death penalty and mental illness
Defendants should not be executed or sentenced to death if, at the time of the
offense, they had a severe mental disorder or disability that significantly
impaired their capacity (a) to appreciate the nature, consequences or
wrongfulness of their conduct, (b) to exercise rational judgment in relation to
conduct, or (c) to conform their conduct to the requirements of the law.
-- American Bar Association (ABA) Recommendation 122A, August 2006
***
"Sanism," a term coined by attorney Morton Birnbaum in the 1960s, is generally
described as an irrational prejudice against the mentally ill. A person in
Virginia with a severe mental illness convicted of a capital crime can become a
victim of state-sponsored sanism - and can legally be executed, despite a
growing consensus that these persons are not the bottom-rung criminals for
which the death penalty was intended.
While more general U.S. law has already recognized that juveniles and those
with intellectual disabilities should not be put to death due to their
inability to control their behavior or appreciate the gravity of their conduct,
exemptions for those suffering from classes of mental illness designated as
"severe" - that were proven without a doubt to be present at the time of their
crime - are not provided. Sanism, unfortunately, may still prevail.
***
A recent educational forum, "Mental Illness and the Death Penalty," sponsored
by the National Alliance of Mental Illness (NAMI-Virginia) and the American Bar
Association's (ABA) Due Process Review Project, and hosted by the Troutman
Sanders law firm, introduced their mental illness initiative to educate
legislators, legal professionals, and the general public on the relationship
between mental illness and capital punishment, and to support policy reforms to
exempt those individuals with significant impaired capacity from execution.
The Aug. 15 forum - moderated by Misty Thomas, director of the ABA Death
Penalty Due Process Review Project - was comprised of Professor Richard Bonnie,
professor of medicine and law at the University of Virginia School of Law; Dr.
James Reinhard, medical director at Virginia Tech's Cook Counseling center; and
Mira Signer, executive director of the National Alliance on Mental
Illness-Virginia.
The policy recommendations are welcome and sorely needed. The insanity defense,
though sought infrequently, has long been unfairly maligned by the public and
media as a "get out of jail free" card. Studies have shown that jurors
sometimes view mental illness diagnoses and defenses not as mitigating factors
in considering punishment, but as aggravating factors that in their minds may
indicate a defendant's proclivity for future crimes, despite overwhelming
evidence to the contrary.
Virginia also does not prohibit executions of persons who, at the time of their
crime, had significant limitations in intellectual function caused not just by
mental illness but by a disability such as traumatic brain injury or even
dementia.
A defendant who suffered a serious brain injury at age 18, for example, could
be eligible for the death penalty, even if, as a result of the injury, he or
she exhibits characteristics of mental retardation, which alone would exempt
them.
Professor Bonnie explained that many legal mechanisms to determine mental
competency are already in place in capital cases and follow a three-step review
process: the test for competency to stand trial, mitigating mental factors
weighed during sentencing, and determination of whether the defendant is
competent to be executed.
It is the interpretation of these policy steps that the ABA is looking to amend
and clarify, emphasizing that they are not taking a moral stand on the death
penalty, nor is it their position to absolve mentally ill defendants of
responsibility for their crime. On the contrary, if found guilty, defendants
still must be punished and even receive life in a psychiatric institution or
prison without parole if warranted.
***
To address the byzantine complexities inherent in defending and prosecuting
death penalty cases, especially those involving mental illness, a Virginia
Death Penalty Assessment Team was created, chaired by John Douglass, professor
of law and former dean at the University of Richmond School of Law, to
recommend procedures for upholding ABA protocols.
These recommendations go beyond just mental illness issues to include the
better preservation of biological and DNA evidence, improved victim
identification and interrogations methods, medical examiner and laboratory
accreditation standards, and more.
Studies by the team have found Virginia to be only partially compliant with
protocol No. 4, which states, "Clemency decision-makers should consider as
factors in their deliberations the inmate's mental retardation, mental illness,
or mental competency ..."
The team also found Virginia to be partially and even non-compliant with
several policies regarding capital jury instructions, acknowledging those
directives are poorly written and badly communicated, leading to misperceptions
among jurors as to which laws are applicable and, worse, confusion as to the
magnitude of their life or death responsibilities.
Also ambiguous is the proper definition of mental illness and the extent of how
often it applies in individual capital cases. Dr. Reinhard, who was former
commissioner of the Virginia public mental health system under Govs. Mark
Warner and Tim Kaine, explained that, according to best estimates, only 4 % of
violence toward others is solely attributable to certain classes of mental
illness, particularly to psychoses such as schizophrenia.
Substance abuse and socio-demographic factors, such as poverty and family
dynamics, significantly contribute more to violent behavior than mental
disorders. "Thus if we could somehow cure all mental illnesses overnight,"
wrote psychologist John Monahan, "we would be left in the morning with a rate
of violence that is 96 % of what it is now."
Sanism, like sexism, is a prejudice that is insidious, based largely upon
stereotype, mistaken assumptions, and even superstitions, yet it remains
socially and even legally acceptable. It is time that Virginia - with the
assistance of the ABA and NAMI - works to exempt the mentally ill and eradicate
sanism from its capital punishment processes.
(source: Dale Brumfield----Richmond Times-Dispatch)
ALABAMA:
10 years later, attorneys seek new trial, sentencing for Doster
10 years ago this week, Oscar Roy Doster was found guilty of capital murder in
the death of Gantt resident Paul LeMaster.
The jury deliberated for several hours before unanimously finding him guilty.
Later that afternoon - on the Friday before Labor Day - they took less than 15
minutes to finish their work, recommending he serve life in prison without
parole.
Weeks later, in the sentencing hearing, then-Circuit Judge Ashley McKathan
sentenced Doster to death.
Death penalty cases are automatically appealed. The appellate court upheld his
conviction.
At present, a 2nd case seeking relief for Doster is on appeal to the Alabama
Court of Criminal Appeals.
A New York attorney filed the Rule 32, or ineffective assistance of counsel
case, seeking a new trial for his client. Or, in the alternative, attorney Evan
Farber said, a new sentencing.
In Ring v. Arizona in 2002, and in Hurst v. Florida in 2016, the U.S. Supreme
Court found that the Sixth Amendment requires a jury to find the aggravating
factors necessary for imposing the death penalty. In Florida, the jury made
recommendations but the judge decided the facts.
Judge McKathan denied the Rule 32 petition in December, and the case has been
appealed to the Alabama Court of Criminal Appeals.
In the 106-page brief, Doster's legal team argues that the trial court violated
Doster's constitutional rights under Ring and Hurst when it made factual
findings on evidence not considered by the jury in support of its decision to
override the jury.
The attorneys also argued that Doster's defense attorneys, Al Smith and Will
Carr, failed to conduct an investigation and therefore didn't know many facts
related to the case, specifically facts related to Bobby O'Lee Phillips.
At the time of LeMaster's death, Doster and Phillips had escaped from the
Covington County Jail. Phillips later was also found guilty of capital murder
in the case, and also received the death penalty.
In both cases, the evidence showed that Phillips actually shot and killed
LeMaster.
The brief also states that the state relied on false evidence - that Phillips
was unfamiliar with Covington County and Doster, therefore, was the leader in
their crimes - in making their case.
Doster's attorneys filed the brief with the appellate court in late June and
requested oral arguments. No date for a hearing has been set.
Farber is a partner in the New York firm of Reed Smith, LLP, which is involved
in a number of other judicial override cases.
Farber said that in this case, the Equal Justice Initiative filed Doster's
initial Rule 32 petition in 2012, but stated in the petition they did not
expect to stay on the case. Shortly thereafter, EJI asked the Reed Smith firm
to take the case, and Farber agreed to serve as Doster's counsel.
Also listed as co-counsel are Richard P. Lewis, also of Reed Smith, and local
attorney John Peek.
Both Doster, 41, and Phillips, 53, are on death row in Holman Prison near
Atmore.
In a separate case, Doster pled guilty to murder in Texas in exchange for a
life sentence. That murder occurred during Doster's separate escape from the
Covington County Jail.
(source: Andalusia Star)
NEBRASKA:
Repeal: We should make punishments fit the crimes
In less than 10 weeks, voters will decide the future of capital punishment in
our state.
This summer, opponents of the death penalty spent hundreds of thousands of
dollars on advertising in an attempt to influence public opinion.
Death penalty opponents also paid $16,000 to economist Ernie Goss to produce a
report on the costs of the death penalty.
That study has serious flaws.
It is not an independent, unbiased fiscal analysis.
The Goss study is based on academic theories and statistics, not actual costs
paid by Nebraska taxpayers.
Goss uses U.S. Census Bureau figures to arrive at a cost-savings figure.
But unlike a fiscal study, Goss did not include actual costs of enforcing and
defending capital punishment incurred by Nebraska state and local government.
Nebraska Attorney General Doug Peterson called Goss' report "misleading" and
said it "failed to accurately reflect actual costs associated with the death
penalty in Nebraska."
Goss' study ignored three 2015 fiscal analysis notes prepared by the
Legislature's Fiscal Office.
Each fiscal note showed no cost savings associated with replacing the death
penalty with life imprisonment.
Fiscal notes are not to be taken lightly - they are developed for every bill
introduced in the Legislature and define authoritatively the impact each bill
has on the state budget. The lack of respect given to the Legislative Fiscal
Office in the rush by death penalty opponents to embrace the Goss study is
astounding.
So instead of getting caught up in the flawed Goss study, I suggest focusing on
the reasons we have a death penalty in Nebraska.
Through numerous appeals, the convictions of Nebraska's 10 current death row
inmates have been affirmed.
The death penalty serves as an appropriate punishment for the most horrific of
criminal acts and is used sparingly. It protects society from individuals who
serve as an undeniable threat to our communities and families and serves as a
deterrent against more heinous acts.
Also, Nebraska law allows capital punishment for the murder of a law
enforcement officer - particularly relevant after the assassinations of Dallas
and Baton Rouge law enforcement officers this summer.
Going forward, I expect the federal government will come up with a drug
protocol to carry out the capital sentence given to the Boston Marathon bomber.
This protocol will provide a new pathway for Nebraska and other states to
similarly carry out executions through lethal injection.
For these reasons, my support for capital punishment remains steadfast.
This November, when given the choice on my ballot to retain or repeal
Legislative Bill 268, I will vote repeal to keep the death penalty.
(source: Opinion; Sen. Beau McCoy (District 39); The author, a state senator
from Omaha, is co-chair of Nebraskans for the Death Penalty----Omaha
World-Herald)
NEW MEXICO:
Execution by the state is murder
The definition of murder is, "The unlawful killing of one human being by
another, especially with premeditated malice." Murder is fundamentally
unacceptable by individuals and by society. Yet society uses execution, which
is defined as, "The act of putting to death or being put to death as a lawful
penalty," as a penalty or punishment for murder. What makes a state execution
different from murder? It is different only because society says it is.
Execution is lawful only because we say it is. In other words, execution is
'legal' murder.
Society says that it is wrong for an individual to take the life of another,
with premeditation and malice. Yet is it not premeditation for 12 jurors and a
judge to say to this murderer, "Since you have committed murder and that is
unlawful, we have 'deliberated' and are going to murder you and that is lawful
because we say it is"?
If committing murder is fundamentally wrong for an individual, then it also has
to be wrong for a group of individuals that calls itself "society" and labels
its committing of murder as something other than what it is.
Individuals who are attacked and are defending their lives or the lives of
those around them certainly have the right to take the lives of their
attackers. However, if their attackers turn away and are leaving, meaning the
threat no longer exists, the victim no longer has the legal right to take their
attackers' lives. If they do, they will be prosecuted for that act.
Society also has the right and obligation to protect itself as individuals do.
Society will arrest a murderer, putting him/her in jail. At this point, the
murderer is no longer a threat to society. Yet society will then execute this
person who is no longer a threat to them. One might say that the threat still
exists, since people who are convicted of murder generally serve a sentence of
eight to 10 years only. Well, this can be remedied by changing our very liberal
capital punishment laws. One example: If you commit a capital offense and are
convicted, then you serve life imprisonment with no chance of parole. The
threat is gone. The so-called need to murder the murderer to protect society is
eliminated.
Appropriate or inappropriate actions for an individual should be the same for
individuals acting together as a societal group.
Some who argue for capital punishment use the rationalization that the costs of
incarceration for convicted murderers are prohibitive. They argue for execution
based on the cost of continued imprisonment. Yet in reality, it is the costs of
administering capital punishment that are prohibitive. Says Jeffrey A. Fagan,
professor of law and public health and co-director of the Center for Crime,
Community and Law: "Even in states where prosecutors infrequently seek the
death penalty, the price of obtaining convictions and executions ranges from
$2.5 million to $5 million per case (in current dollars), compared to less than
$1 million for each killer sentenced to life without parole.
"The burden of these costs is borne by local governments, often diverting
precious resources not only from police, but from health care, infrastructure,
and education, and by many times forcing counties to borrow money and/or raise
taxes."
If murder is wrong and human life is paramount, then how can society truly
justify the premeditated taking of a life (murder) for financial reasons. This
is certainly a sad commentary on those who will argue for capital punishment
because they don't want to pay, through taxes, for the imprisonment of these
convicts when in reality, execution costs so much more then incarceration.
(source: Opinion; Howard H. Bleicher----The Santa Fe New Mexican)
USA:
A snapshot of the death penalty in the U.S.
Lethal injection:
--Since 1976, there have been 1,262 executions carried out by lethal injection.
--Lethal injection is used in 33 states as well as U.S military and federal
government cases.
Electrocution:
--Since 1976, there have been 158 executions carried out by electrocution.
--There are only 8 state2 that offer electrocution as a choice in execution:
Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and
Virginia
--In 2001, the Supreme Court of Georgia ruled that the electric chair violates
the state constitutional prohibitions against cruel and unusual punishment. In
2008, the Nebraska Supreme Court issued the same ruling.
--In 2014, the Tennessee General Assembly passed legislation that allows
imposing the electric chair if lethal injection drugs can't be obtained.
Gas chamber:
--Since 1976, there have been 11 executions carried out using a gas chamber.
--Only 5 states offer the gas chamber as a choice in execution: Arizona,
California, Missouri, Wyoming and Oklahoma.
--In April 2015, Oklahoma Gov. Mary Fallin signed legislation that allows the
use of nitrogen gas as a form of execution if lethal injection drugs are
unavailable or if the method is struck down by courts.
Hanging:
--Since 1976, there have been 3 executions carried out by hanging.
--Hanging is only used in 3 states: Delaware, New Hampshire and Washington.
Firing squad:
--Since 1976, there have been 3 executions carried out by firing squad.
--The firing squad is only used in 2 states: Oklahoma and Utah.
--In March 2015, Utah Gov. Gary Herbert signed legislation that reauthorizes
the use of a firing squad if the drugs for lethal injection aren't available.
Prior to 2015, the firing squad was only an option to inmates who chose the
method, before it was eliminated in 2004.
--Oklahoma offers a firing squad only if lethal injection and electrocution are
found to be unconstitutional.
Since 2001:
--673 executions have been carried out using lethal injection;
--10 executions have been carried out using electrocution;
--1 execution has been carried out by firing squad and no executions have been
carried out by hanging or gas chamber.
Since 1976:
--There have been 43 executions in South Carolina.
--2 innocent people have been freed from death row.
--There are currently 44 people on death row.
[sources: The Death Penalty Information Center and the Coalition to Abolish the
Death Penalty]
(source: goupstate.com)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty
