History > 2007 > USA > Justice > Death penalty (I)

L: Charles Nealy in an undated prison photograph.

Texas executed Nealy by lethal injection on Tuesday

for the murder of a clerk during a convenience store robbery in Dallas

in the state's ninth execution this year.

Photograph:

REUTERS/Texas Department of Criminal Justice/Handout

Texas executes man for killing store clerk        R        21.3.2007

http://www.reuters.com/article/domesticNews/idUSN2024815220070321

R: Ryan Heath Dickson in an undated prison photo.

Texas has executed Dickson, convicted of murdering an Amarillo couple

in 1994 during an attempt to steal beer from their grocery store.

REUTERS/Texas Department of Criminal Justice/Handout

    Texas executes murderer in failed beer theft        R        27.4.2007

http://www.reuters.com/article/domesticNews/idUSN2740022020070427

Texas executes murderer

in failed beer theft

Fri Apr 27, 2007
11:44AM EDT
Reuters

HOUSTON (Reuters) - Texas has executed a man convicted of murdering an Amarillo couple in 1994 during an attempt to steal beer from their grocery store.

Ryan Heath Dickson, 30, was executed by lethal injection on Thursday shortly after 6 p.m. (2300 GMT), becoming the 13th inmate put to death this year in Texas, which carries out more executions than any other U.S. state.

Dickson was convicted of shooting 61-year-old store owner Surace Carmelo with a sawed-off .22-caliber rifle. He then shot Carmelo's wife, Marie, 60, even though she put all the store's money on the counter, officials said.

No family members or friends were present, neither Dickson's nor the victims'. His execution was witnessed by the prison chaplain, three journalists and several prison officials.

After having tubes connected to veins in both arms, Dickson expressed love for his family and apologized to the victims and their families.

"I do apologize," he said. "I am sorry for what I did and I take responsibility for what I did."

Dickson's last meal request was fried chicken, fried eggs, french fries with white gravy, apple pie and ice cream, five biscuits, chili with jalapeno peppers and cheese, lemonade and five containers of milk.

    Texas executes murderer in failed beer theft, R, 27.4.2007, http://www.reuters.com/article/domesticNews/idUSN2740022020070427

Supreme Court

Throws Out 3 Death Sentences

April 25, 2007
By THE ASSOCIATED PRESS
Filed at 11:19 a.m. ET
The New York Times

WASHINGTON (AP) -- The Supreme Court threw out death sentences for three Texas killers Wednesday because of problems with instructions given jurors who were deciding between life in prison and death.

In the case of LaRoyce Lathair Smith, the court set aside the death penalty for the second time. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.

The cases all stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might cause them to impose a life sentence instead of death.

The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the majority.

''When the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence...the sentencing process is fatally flawed,'' Stevens wrote in Abdul-Kabir's case

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.

Roberts took aim at his colleagues in the majority in dissents he wrote in the Abdul-Kabir and Brewer cases. The court should have deferred to lower court rulings against the defendants because there was no clearly established federal law that judges could have followed to grant relief.

''Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at a Taco Bell who was stabbed and shot in a failed robbery.

In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect that Smith had suffered as a child.

The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.

Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to take into account the mistreatment and abandonment that contributed to his violent adult behavior.

The same sentencing problems applied to Brewer, convicted of fatally stabbing 66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo flooring business and robbed of $140. Brewer was abused as a child and suffered from mental illness, factors his jurors weren't allowed to consider, according to his petition.

The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer and Abdul-Kabir.

Forty-seven inmates on Texas' death row were sentenced under the rules that the state abandoned in 1991.

The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.

    Supreme Court Throws Out 3 Death Sentences, NYT, 25.4.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Death-Penalty.html?hp

Study:

Lethal injection drugs

sometimes fail

23.4.2007
The Associated Press
USA Today

The drugs used to execute prisoners in the United States sometimes fail to work as planned, causing slow and painful deaths that probably violate constitutional bans on cruel and unusual punishment, a new medical review of dozens of executions concludes.
The review looked at the executions of 40 prisoners in North Carolina since 1984 and about a dozen in California, plus incomplete information from Florida and Virginia. The authors analyzed details such as the dose the inmates received, their weight and the time they needed to die.

Even when administered properly, the three-drug lethal injection method appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having their hearts stopped while they were sedated, scientists said in a report published Monday by the online journal PLoS Medicine.

No scientific groups have ever validated that lethal injection is humane, the authors write. Medical ethics bar doctors and other health professionals from taking part in executions.

The study concluded that the typical "one-size-fits-all" doses of anesthetic do not take into account an inmate's weight and other key factors. Some inmates got too little, and in some cases, the anesthetic wore off before the execution was complete, the authors found.

"You wouldn't be able to use this protocol to kill a pig at the University of Miami" without more proof that it worked as intended, said Teresa Zimmers, a biologist there who led the study.

The journal's editors call for abolishing the death penalty, writing: "There is no humane way of forcibly killing someone."

Lethal injection has been adopted by 37 states as a cheaper and more humane alternative to electrocution, gas chambers and other execution methods.

But 11 states have suspended its use after opponents alleged it is ineffective and cruel. The issue came to a head last year in California, when a federal judge ordered that doctors assist in killing Michael Morales, convicted of raping and murdering a teenage girl. Doctors refused, and legal arguments continue in the case.

In 2005 alone, at least 2,148 people have been killed by lethal injection in 22 countries, especially China, where fleets of mobile execution vans are used, the editors write, citing Amnesty International figures. Of the 53 executions in the United States in 2006, all but one were by lethal injection.

The new review was written by many of the same authors who touched off controversy when they published a 2005 report suggesting that many inmates were conscious and possibly suffering when the last of the drugs was given.

That report was criticized for its methodology, which relied on blood samples taken from prisoners hours after executions.

Most states use three drugs — thiopental, an anesthetic; pancuronium bromide, a nerve blocker and muscle paralyzer; and potassium chloride, a drug to stop the heart. Each is supposed to be capable of killing all by itself, but if not, the anesthetic is supposed to render the inmate unconscious while the other drugs do the job.

In 33 North Carolina executions, the average death time was 10 to 14 minutes, depending on the combination of drugs used, the authors report. Calculating each inmate's actual dose, based on his or her weight, they concluded that some did not receive enough.

"The person would feel either asphyxiation or the burning sensation associated with the potassium," said Dr. Leonidas Koniaris, a surgeon and co-author at the University of Miami. "The potassium would cause extreme discomfort, something like being put on fire."

Even the final drug did not always prove fatal as intended. At least one California inmate required a second dose, and the California warden has said additional doses were used in two other executions, the study reports.

Death penalty proponents complained the report's conclusions were based on scant scientific evidence.

"It's more like political science than medical science," said Mike Rushford, president of Criminal Justice Legal Foundation in Sacramento.

Steve Stewart, prosecuting attorney in Clark County, Indiana, where an execution is scheduled for May 4, said the simple solution seemed to be to give a higher dose of the anesthetic, which probably would not satisfy opponents who see all methods as barbaric.

"It doesn't matter a whole lot to me that someone may have felt some pain before they were administered poison as a method of execution," he said.

Dr. Mark Heath, an anesthesiologist at Columbia University Medical Center who has studied lethal injection cases, took issue with some of the paper's conclusions, but said it generally showed that concerns about lethal injection in its current form "are well-justified."

Editors said they sent the manuscript to three independent medical experts for review — an anesthesiologist, a forensic pathologist and someone in charge of a critical care unit, plus a lawyer.

"We were satisfied" with the science, said Dr. Virginia Barbour, a British physician who is managing editor of the journal, published by the non-profit group Public Library of Science. "The difficulty of a paper like this is that there is very poor evidence for all the kinds of protocols used" in lethal injections, but the authors did a good job analyzing what there is, she said.

Study: Lethal injection drugs sometimes fail, UT, 23.4.2007, http://www.usatoday.com/news/nation/2007-04-23-lethal-injection-study_N.htm

Texas executes man

for killing store clerk

Wed Mar 21, 2007 7:34AM EDT
Reuters

DALLAS (Reuters) - Texas executed a man by lethal injection on Tuesday for the murder of a clerk during a convenience store robbery in Dallas in the state's ninth execution this year.

Charles Nealy, who would have turned 43 on Friday, shot and killed the clerk during the 1997 robbery, then fled on foot with $4,000, the Texas Department of Criminal Justice said.

Local media reports said Nealy had maintained he was innocent of the crime.

Texas leads the nation with 388 executions since 1982, when it resumed the practice six years after the U.S. Supreme Court lifted a capital punishment ban.

In his last statement while strapped to the gurney, Nealy said he loved everyone present including his family members who came to Huntsville, Texas, to witness the execution and the prison warden.

"Y'all know I love you, you too warden. You have been a good friend," he said, adding that he was going to Allah.

He also appeared to comment on the apparent time it took to insert the needle in which the lethal drug cocktail was administered.

"The reason it took them so long is because they couldn't find a vein. You know how I hate needles," he said.

He had no last meal request.

Nealy was the third person put to death in Texas in March. The state has two more executions scheduled next week and 12 more this year.

    Texas executes man for killing store clerk, R, 21.3.2007, http://www.reuters.com/article/domesticNews/idUSN2024815220070321

Policy Shift on Death Penalty

Overwhelms Arizona Court

March 5, 2007
The New York Times
By JENNIFER STEINHAUER

PHOENIX, March 2 — Maricopa County, one of the nation’s fastest growing counties, now has an additional distinction: It is also a leader in seeking the death penalty.

During his two years in office, Andrew P. Thomas, the county attorney, has nearly doubled the number of times that the office has sought the death penalty, even though the number of first-degree murder cases prosecuted by the county has remained more or less the same for a decade.

A policy change that he enacted has contributed to a backlog of capital cases here that has crippled the county’s public defender system, left roughly a dozen murder defendants without representation, and prompted rancor and demoralization in the agencies that defend capital cases.

“Clearly the system is overwhelmed,” said James J. Haas, the Maricopa County public defender. “There are not enough lawyers who are qualified to take these cases.”

The Arizona Supreme Court has convened a task force to address the issue.

Separately, on Friday, a county superior court judge assembled parties within the county justice system to look for solutions.

The capital defense lawyers, county budget officials and representatives of the county attorney’s office met privately to begin working toward a settlement, averting for now a highly unusual hearing previously ordered by the judge to address the cases.

One possible result is that the county attorney may remove the death penalty status from some cases, said lawyers who were present.

The judge, James H. Keppel, said in court on Friday that the only settlement he would accept was one that included the immediate provision of lead counsel for those defendants without adequate representation, and a long-range plan designed to prevent further crisis in the courts. In 2006, the Maricopa County Attorney’s Office sought the death penalty in 44 of 89 murder cases. By comparison, in 2004, the year before Mr. Thomas became county attorney, the office sought the death penalty in 28 of 108 cases. The county, which includes the City of Phoenix, currently has 138 capital cases pending or awaiting trial, surpassing the total number of defendants who received the death penalty nationwide last year.

While there is no central clearinghouse for county data on cases in which the death penalty is sought, Maricopa is almost certainly “among the highest in the nation,” said Richard C. Dieter, the executive director of the nonprofit Death Penalty Information Center in Washington.

“In its heyday, 138 cases in Harris would have been a lot,” Mr. Dieter added, referring to the Texas county known for seeking the death penalty; it currently has 17 such cases pending.

Overwhelmed defense lawyers have asked the courts to stay capital cases for which there have been no lawyers available, setting off the county legal proceedings.

Mr. Thomas responded by accusing the defense lawyers of “delay tactics,” which prompted a firestorm between his office and the four county units that defend capital cases.

“I don’t want to be in the middle of a philosophical debate about the death penalty; it’s the law,” said Mark Kennedy, the director of the county’s Office of Contract Counsel, which appoints lawyers for cases that the public defender’s office cannot handle. Its lawyers defend more than half of the county’s capital cases. “All I was saying was, ‘Time out.’ ”

Mr. Kennedy was enraged by Mr. Thomas’s comments, and has argued, along with other defense lawyers, that capital cases require significant time and resources in order to comply with guidelines dictated by the American Bar Association.

“Who is going to tell me this guy needs more work?” said Mr. Kennedy, tapping on a dossier that showed one lawyer with six capital cases on his desk. “No judge, no lawyer, no one, not in this lifetime. You can fire me but I won’t do it, and it really makes my blood pressure soar to hear these folks aren’t working hard enough.”

Two lawyers in the public defender’s office have told Mr. Haas that they are considering quitting because they are so demoralized by the workload and by Mr. Thomas’s comments.

Furthermore, lawyers throughout the county are concerned that as more criminal case judges become consumed with capital murder cases, civil judges may be called upon to deal with lesser criminal matters, depleting the civil system and holding up proceedings there.

“Any time there is a problem getting cases assigned to a judge in the criminal division is really problematic,” said Kelly J. McDonald, the immediate past-president of the Arizona Trial Lawyers Association.

Mr. Thomas, a Republican, took office in January 2005 after a campaign that focused on themes of law and order. He said in an interview that he was simply seeking to increase the percentage of first-degree murder cases in which the death penalty was requested to its level in the mid-1990s of roughly 42 percent. The year before he took office, in 2004, the county attorney sought the death penalty in 26 percent of first-degree murder cases. He sought it in 49 percent last year.

Mr. Thomas said he did not believe that lawyers needed a particularly extensive amount of time and resources to defend capital cases; he argued that most of the work was done on the prosecutorial side and that the court was culpable for delays.

“The courts have not enforced the speedy-trial rules,” Mr. Thomas said. “And the overall strategy of the defense bar is to delay things.”

In light of a 2003 decision by the United States Supreme Court that juries rather than judges must make the factual determinations in sentencing criminals to death, Mr. Thomas said he had concluded that juries should be given broader latitude over who receives the sentence.

It is a view rejected by defense lawyers who specialize in capital cases, and who argue that the law and resource management issues dictate that the death penalty should be sought in only the worse of the worst first-degree murder cases.

“One of the ways prosecutors manage their discretion is to decide, ‘Is this the right offense and is this the right offender?’ ” said Diane M. Meyers, a member of the state bar’s Indigent Defense Task Force. “Doing that on the front end saves everyone time and money.”

The cost of defending capital cases, which experts said averaged $100,000, should not be a consideration, Mr. Thomas said.

Nationally, the number of death sentences fell 60 percent from 1999 to 2005, according to the Death Penalty Information Center. Incomplete data suggest there were 114 such cases in 2006, said Mr. Dieter, of the center.

“Generally that means fewer cases are being sought and juries are returning fewer death sentences,” Mr. Dieter said. “All the indications — sentences, executions, the size of death row — are that public support for the death penalty have all dropped.”

Mr. Thomas, who won 58 percent of the vote in his 2004 bid for county attorney, does not share that view.

“It appears to me that there is an effort nationwide not only to delay the executions of convicted murderers but to basically snuff out the death penalty as a meaningful deterrent to would-be killers,” Mr. Thomas said. “At some point it is important for advocates of public safety and justice to do their utmost to ensure the process is not becoming so badly broken that justice cannot be done.”

Policy Shift on Death Penalty Overwhelms Arizona Court, NYT, 5.3.2007, http://www.nytimes.com/2007/03/05/us/05death.html

Study draft decries

execution appeals process

Posted 3/1/2007 10:23 PM ET
USA Today
By Richard Willing

WASHINGTON — Death-sentence appeals take too long, traumatize victims' families and burden states with millions in extra costs for housing convicted killers, a draft of a new study commissioned by the Justice Department shows.
The study also found that death penalty cases are not hopelessly flawed by errors, as opponents of capital punishment have charged.

The study, which reviewed state death sentences issued in the 1990s, found that 26% were reversed during the first level of the appeals process. Most of those "direct appeals" were rejected because of sentencing errors. Some of the death sentences were later reinstated.

In only 11% of those cases did the appeals court find problems with the underlying murder convictions, says the unreleased study by Barry Latzer and James Cauthen, professors at the John Jay College of Criminal Justice in New York.

USA TODAY obtained a draft of the study.

The study challenges a 2000 report that concluded the capital punishment system is "broken" because 68% of all death penalty cases from 1973 to 1995 were eventually overturned. The report, by a team led by Columbia University law professor and death penalty foe James Liebman, also found 41% of cases were reversed during direct appeals.

The Liebman study provided a false picture of the death penalty because it included many cases from the 1970s and 1980s, when the U.S. Supreme Court rewrote death penalty rules and caused many sentences to be reversed, the Justice Department's report says.

Latzer and Cauthen tracked 1,676 death sentences issued in 14 "representative" states from 1992 through 2002. Among the report's other findings:

•Half of all death penalty appeals take nearly three years to be decided by state appeals courts. Federal review, which follows state appeals, can extend the process by years.

•Virginia settles death penalty appeals fastest, in a median time of 295 days.

•Ohio, Tennessee and Kentucky were the slowest states, each taking more than three years to resolve appeals.

•States pay an average total of $274,000 in housing costs for every prisoner they execute.

Death penalty supporters say the study shows that delays are part of a strategy to undermine a sentence that most Americans support.

"Opponents of the death penalty can't get an outright repeal anywhere, but are working to impede the process by slowing it down to a crawl," says John McAdams, political science professor at Marquette University in Milwaukee.

Capital punishment foes say the lengthy appeals process may in itself be an argument for abandoning the death penalty.

"If you like bureaucracy, you'll love the death penalty," says David Elliot, spokesman for the National Coalition to Abolish the Death Penalty.

The death penalty study was commissioned in 2005 by the National Institute of Justice, the Justice Department's research arm, to find ways to speed up the execution process.

    Study draft decries execution appeals process, UT, 1.3.2007, http://www.usatoday.com/news/nation/2007-03-01-deathsentences_x.htm

Wider death penalty sought

Updated 2/7/2007 9:00 AM ET
USA Today
By Emily Bazar

At least a half-dozen states are considering broadening the death penalty, countering a national trend toward scaling back its use.

Lawmakers have proposed legislation that would increase the range of crimes eligible for execution. In Texas and Tennessee, for example, legislators want to include certain child molesters who did not murder their victims.

"The hope is that these monsters will see that Texas is serious about protecting children," says Rich Parsons, spokesman for Lt. Gov. David Dewhurst. Dewhurst, a Republican, is working with state senators to draft legislation that would make repeat offenders subject to capital punishment in some cases. "If they understand they could face the ultimate punishment, " they might "think twice," Parsons says.

Virginia is considering bills that would make accomplices to murder, as well as killers of judges and court witnesses, eligible for the death penalty.

"I'm a believer in the deterrent effect of the death penalty," says Republican Delegate Todd Gilbert, a state prosecutor who sponsored two of the measures. "I know a number of states are reconsidering their position on the death penalty. … I feel confident Virginia's system is set up to work."

Lawmakers or courts have temporarily halted all executions in 11 states in the past year, most of them over concerns that lethal injection is cruel and unusual punishment, says Richard Dieter of the Death Penalty Information Center, which he says takes no position on the death penalty but has been critical of how it is applied.

In December, a convicted killer in Florida took 34 minutes to die and had chemical burns on his arms after a lethal injection procedure. After the execution, then-governor Jeb Bush created a commission to study possible improvements and halted executions until the commission releases its report.

Other states with proposals to expand the death penalty:

•Missouri. Gov. Matt Blunt said in his State of the State address last month that he wants a mandatory death penalty for the murder of law enforcement officers. Blunt, a Republican, says the state must protect its public servants and the death penalty would be a deterrent. "This is the type of crime that calls for the death penalty," he says.

Robert Blecker, a law professor at New York Law School who specializes in the death penalty, says the Supreme Court has found mandatory death sentences unconstitutional because they don't allow defendants to present mitigating evidence. Blunt says his measure will take that into account.

•Georgia. GOP state Rep. Barry Fleming has introduced a bill to allow a judge to impose the death sentence if at least nine of 12 jurors — not all 12, as now — voted for it.

•Utah. The House passed a bill Tuesday making murder of a child under 14 subject to execution.

State Rep. Paul Ray, a Republican, introduced a bill to allow the death penalty for killing a child during abuse, sexual assault or kidnapping, even if prosecutors cannot prove intent to kill. He expects the House to vote later this week.

"We're going to send a message that if you kill our kids in Utah, we're going to kill you," he says. "In Utah, I don't think we use the death penalty enough."

    Wider death penalty sought, UT, 7.2.2007, http://www.usatoday.com/news/nation/2007-02-06-death-penalty_x.htm

High Court Hears 3 Death Penalty Cases

Capital Punishment
Accounts for Larger Share of Justices' Smaller Workload

Thursday, January 18, 2007; A03
By Robert Barnes
Washington Post Staff Writer

It was death penalty day yesterday at the Supreme Court, coincidentally 30 years to the day since Gary Gilmore became the first person to be executed under the country's modern capital punishment laws.

The court heard three death penalty cases from Texas even as executions are on hold in an increasing number of states, from Maryland to California, and as the number of new death sentences continues to fall.

The work of the court so far this term shows that the complicated legal process that attends executing a murderer -- the balance of state laws and federal constitutional guarantees -- can take decades to unspool. Even a trip to the Supreme Court is sometimes not enough to settle the issue.

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard yesterday.

The number of capital cases is not unusual for the court, those who follow the issue say. But because the justices so far this year have taken a smaller number of cases overall, the death penalty accounts for "a larger fraction of their work," said Richard Dieter, executive director of the Death Penalty Information Center. Douglas A. Berman, a law professor at Ohio State University, said: "It's probably the normal number, but I always think they take too many. Especially at a moment when the docket is so light." The justices have taken a decreasing number of cases in recent years, and this term, which will end this summer, is likely to continue that trend.

Sometimes the court's decisions are dramatic, such as 2005's Roper v. Simmons, which forbade the execution of those who were younger than 18 at the time of their crimes. But Berman, who writes regularly for and runs the Sentencing Law and Policy blog, said the court's decisions in most death penalty cases affect only a handful of people in the states from which the cases arise. He would like to see the court spend time on other sentencing disparities "that affect thousands of people every day."

Indeed, the Texas cases heard yesterday had all been decided more than 15 years ago, when Texas juries were asked to answer only yes or no to two questions when deciding whether to impose death. They were asked whether the killing was deliberate and whether the killer constituted a continuing threat to society.

Several Supreme Court decisions have said that jurors also need to consider mitigating evidence, such as the IQ of the defendant or an abusive background.

In 2004, the court decided 7 to 2 in the case of LaRoyce Smith, who had murdered a Taco Bell manager in Dallas, that there were broad problems with the Texas law, which has since been changed. It sent the case back. The Texas Court of Criminal Appeals, nevertheless, reaffirmed the death sentence, saying that if an error was made, it was harmless to the outcome of the jury's decision.

And so Smith v. Texas (05-11304) was back before the Supreme Court yesterday, with Smith's advocates and others -- including four retired federal appeals court judges -- arguing that the state court ignored specific directions from the Supreme Court.

As Justice Ruth Bader Ginsburg put it, it was as though the state court were saying, "Thanks, thanks, that's very interesting advice," but we're deciding it on different grounds.

But the state appeared to have strong supporters in Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.

Scalia said the Texas court decided that, though the mitigating evidence should have been presented more straightforwardly, it was in the best position to decide that such evidence would not have affected the jury's decision to sentence Smith to death. And Roberts defended the state's interpretations. "Why do we remand these cases for further proceedings not inconsistent with our opinion if there's nothing further to be considered?" he asked.

University of Texas law professor Jordan M. Steiker, representing Smith, said that the Texas court's actions were indeed contradictory and inconsistent.

Texas Solicitor General R. Ted Cruz said that complying with the Supreme Court's evolving decisions governing the death penalty "is not an easy task, and state and federal courts have struggled for two decades to draw the appropriate lines."

That struggle is evident on the court's docket, in which most of the death penalty cases come from the U.S. Court of Appeals for the 5th Circuit, which covers Texas and much of the South, and the San Francisco-based U.S. Court of Appeals for the 9th Circuit. "The Ninth looks so clearly from a defendant's perspective, and the Fifth looks at it from a prosecutorial perspective," Berman said.

Two of yesterday's cases, Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), were appeals from the 5th Circuit. The high court in this term has already reversed a 9th Circuit decision that overturned a death sentence.

Dieter said the justices are "in a rather complex area of the law. Maybe they are trying to draw some lines down the middle."

Middle ground could be difficult for a court that has shown itself divided on important aspects of capital punishment. The swing vote on the issue seems to belong to Justice Anthony M. Kennedy, the only justice in the 5 to 4 majority both to uphold Kansas's death penalty and the Roper decision abolishing capital punishment for juveniles.

    High Court Hears 3 Death Penalty Cases, WP, 18.1.2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/01/17/AR2007011701821.html?sub=AR

U.S. death sentences

drop to 30-year low

Posted 1/4/2007 6:19 PM ET
USA Today
By Robert Tanner, Associated Press

The number of death sentences handed out in the United States dropped in 2006 to the lowest level since capital punishment was reinstated 30 years ago, reflecting what some experts say is a growing fear that the criminal justice system will make a tragic and irreversible mistake.

Executions fell, too, to the fewest in a decade.

"The death penalty is on the defensive," said Richard Dieter, director of the Death Penalty Information Center, a Washington organization that looks at problems with the capital punishment system.

Death sentences fell in 2006 to 114 or fewer, according to an estimate from the group. That is down from 128 in 2005, and even lower than the 137 sentences the year after the U.S. Supreme Court reinstated the death penalty in 1976. It is also down sharply from the high of 317 in 1996.

A total of 53 executions were carried out in 2006, down from 60 in 2005. Executions over the past three decades peaked at 98 in 1999.

Among the many causes given by prosecutors, lawyers and death penalty critics: the passage of more state laws that allow juries to impose life without parole; an overall drop in violent crime; and a reluctance among some authorities to pursue the death penalty because of the high costs of prosecuting a capital case.

But above all, many said, is the possibility of a mistake, made dramatically clear in recent years. Since the death penalty was reinstated, 123 people have been freed from death row after significant questions were raised about their convictions — 14 of them through DNA testing, according to the Death Penalty Information Center.

"The fact is they've gotten a lot of the wrong guys," said Deborah Fleischaker, director of the American Bar Association's Death Penalty Moratorium Implementation Project. "There's no question that has, in the public, created a lot of doubt about how the death penalty is working."

The turn away from the ultimate punishment also reflects a changing sentiment among juries and prosecutors, too, said Arthur Green, district attorney in Bessemer County, Ala., outside of Birmingham. He said he considers the risk of executing an innocent person in deciding whether to pursue the death penalty.

"That's one reason I don't do it, except in very, very rare circumstances — one, that I'm convinced he or she did it, and number two, it's a horrible crime," Green said. He has sought and won two capital cases since becoming district attorney in 2001.

Thirty-seven of the 38 states that have the death penalty on their books now also allow for life without parole. Texas enacted such a law in 2005. Life-without-parole laws give another option to jurors who fear that the death penalty is the only way to keep a killer from getting out on the streets again.

The death penalty has also received more scrutiny from lawmakers around the country and the courts.

Illinois is in the seventh year of its moratorium on executions, and executions are effectively halted in New York because of a 2004 court ruling.

Also, questions about whether lethal injection is inhumane have put executions on hold in nine states — Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, Ohio and South Dakota — and in the federal system.

This week in New Jersey, a special commission recommended that the state become the first to abolish the death penalty legislatively since 1976, citing "increasing evidence that the death penalty is inconsistent with evolving standards of decency."

Backers of capital punishment say support for the death penalty remains strong, despite the drop-off in death sentences.

"It's a refinement. I don't think it's an abandonment of the death penalty, but a recognition that the death penalty should be reserved for the worst of the worst," said Joshua Marquis, district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association.

"From prosecutors, there's a more discriminating attitude about which cases to bring," he said. "Juries have been much more picky about allocating the death penalty and I think that's an appropriate thing to do."

A Gallup poll in May found that two-thirds of Americans 18 and older support the death penalty. But when asked which is the better penalty for murder, roughly half said life without parole and about half said the death penalty.

    U.S. death sentences drop to 30-year low, UT, 4.1.2007, http://www.usatoday.com/news/nation/2007-01-04-death-penalty_x.htm

Panel Seeks End to Death Penalty

for New Jersey

January 3, 2007
The New York Times
By LAURA MANSNERUS

TRENTON, Jan. 2 — A legislative commission recommended on Tuesday that New Jersey become the first state to abolish the death penalty since states began reinstating their capital punishment laws 35 years ago. Its report found “no compelling evidence” that capital punishment serves a legitimate purpose, and increasing evidence that it “is inconsistent with evolving standards of decency.”

The report, whose lone dissenter was the original author of the state’s modern death penalty statute, came a year after New Jersey joined Illinois and Maryland in imposing moratoriums on executions, and amid growing unease among politicians and the public about capital punishment.

Eight other states, including New York, have also suspended executions in recent years, most because of court decisions. Maryland had lifted its moratorium in 2003, after a year, but a court essentially reinstated it last month.

Death penalty experts said that New Jersey was the first state to receive an official recommendation that capital punishment be abandoned, and it lands in a state where legislators have a Democratic majority along with a Democratic governor who supports repeal of the statute.

The governor, Jon S. Corzine, embraced the report on Tuesday. “As someone who has long opposed the death penalty,” he said in a statement, “I look forward to working with the Legislature” to carry out the recommendations.

There is ample opposition to capital punishment in both houses of the Legislature, and Senate President Richard J. Codey said in an interview that he expected to ask for a vote, although he would not discuss a timetable.

Assembly Speaker Joseph J. Roberts, who also said he supported an end to the death penalty, issued a written statement saying that he would not consider scheduling a vote until discussing the report with other Democrats, leaving the possibility that repeal legislation could remain locked in committee.

New Jersey’s last execution was in 1963, and its death row population has shrunk to nine men. Many appeals have been extended for years by a process known as “proportionality review,” meant to assure that capital sentencing was not being arbitrarily applied, before the State Supreme Court.

The 13-member New Jersey Death Penalty Study Commission, including two prosecutors, a police chief, clergy members and murder victims’ representatives, began meeting in June and heard from scores of witnesses at five public hearings before issuing the 127-page report.

“Based on our findings, the commission recommends that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole, to be served in a maximum security facility,” the report said. “The commission also recommends that any cost savings resulting from the abolition of the death penalty be used for benefits and services for survivors of victims of homicide.”

If the Legislature did abolish the death penalty, it would be the first to do so since the United States Supreme Court halted all executions in 1972 — after which 38 states rewrote their laws to reinstate the practice. New Jersey restored the death penalty in 1982.

But a repeal would be in line with a nationwide retreat from executions, with the annual count declining by nearly half since 1999. A nationwide Gallup telephone poll in 2006 found Americans almost evenly divided when asked whether a death sentence or life without the possibility of parole was a preferable punishment for murder, after years of previous polls in which a majority supported the death penalty.

“We’re in a period of national reconsideration of the death penalty,” said Austin D. Sarat, a professor of political science and law at Amherst College in Massachusetts. “I believe what’s happening in New Jersey will have a tremendously galvanizing effect.”

Richard C. Dieter, the director of the Death Penalty Information Center in Washington, attributed the sea change to the many wrongful convictions exposed by DNA evidence. “That is the wedge that has made the death penalty difficult to fix,” Mr. Dieter said. “It’s all related to the scientific revolution we’ve had in the last 10 years.”

Professor Sarat, the author of the 2001 book, “When the State Kills,” said the shift in public opinion had accelerated even in the last few months.

Two weeks ago, a botched execution in Florida underscored doubts about lethal injection and led Gov. Jeb Bush to suspend the death penalty. The same day, a federal court ruled that California’s lethal injection procedures violated the constitutional prohibition on cruel and unusual punishment.

“If you’d asked me six months ago if they’d end up in this place, I’d have said no,” Professor Sarat said of the New Jersey commission. “I would have said they’d take a more careful route.”

New York, which has only one man on death row and has not carried out an execution since reinstating the death penalty, has had a moratorium since the state’s Court of Appeals found its law unconstitutional in 2004. The Legislature has not moved to revise the statute.

In New Jersey, a bill to repeal the death penalty was introduced several years ago but never brought to a vote in the judiciary committee of either chamber. But Mr. Codey, the Senate president, said on Tuesday, “I think that will be done.”

“What’s the use of having a death penalty if at the age of 18 you commit a murder and then have to live longer than Methuselah to be executed?” he asked.

Mr. Codey also pointed to the change in public opinion since the enactment of the death penalty law, as did the commission. The panel cited a 1999 Star-Ledger/Eagleton-Rutgers Poll in which 44 percent of New Jersey residents supported the death penalty and 37 percent preferred life imprisonment without parole, and a 2002 poll that asked the same question found that 36 percent supported the death penalty and 48 percent favored life without parole.

The commission’s report, which recommended the life-without-parole alternative, drew stinging responses from several Republicans. “How can they possibly arrive at that conclusion when New Jersey has not enforced the current law even once since its enactment?” the Assembly’s minority leader, Alex DeCroce, who represents Morris and Passaic Counties, asked in a written statement.

The dissenter on the commission, John F. Russo, a former State Senate president from Ocean County and a Democrat, said the problem was not in the law but in “the liberal judges and other individuals who have consistently disregarded the legislative will and refused to enforce the law as written.”

Mr. Russo, a former prosecutor, recounted a death penalty verdict that he had fought for but left him in tears. “I realize the gravity of the issue,” he said, adding that he believed the death penalty should still be available in cases of serial killings and terrorism.

Panel Seeks End to Death Penalty for New Jersey, NYT, 3.1.2007, http://www.nytimes.com/2007/01/03/nyregion/03death.html