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

Editorial

State Without Pity

December 27, 2007
The New York Times

It is a shameful distinction, but Texas is the undisputed capital of capital punishment. At a time when the rest of the country is having serious doubts about the death penalty, more than 60 percent of all American executions this year took place in Texas. That gaping disparity provides further evidence that Texas’s governor, Legislature, courts and voters should reassess their addiction to executions.

As Adam Liptak reported in The Times on Wednesday, in the last three years, Texas’s share of the nation’s executions has gone from 32 percent to 62 percent. This year, Texas executed 26 people. No other state executed more than three.

It is not that Texas sentences people to death at a much higher rate than other states. Rather, Texas has proved to be much more willing than others to carry out the sentences it has imposed.

The participants in Texas’s death penalty process, including the governor and the pardon board, are more enthusiastic about moving things along than they are in many states. Texas’s system also contains some special features, like the power of district attorneys to set execution dates. Prosecutors are likely to be more eager than judges to see an execution carried out.

While Texas has been forging ahead with capital punishment, many other states have been moving away from it. New Jersey abolished the death penalty this month, and other states have been considering doing the same thing. Illinois made headlines a few years ago when its governor, troubled about the number of innocent people who had been sent to death row, put in place a moratorium on executions.

These states have had good reasons for their doubts. The traditional objections to the death penalty remain as true as ever. It is barbaric — governments should simply not be in the business of putting people to death. It is imposed in racially discriminatory ways. And it is too subject to error, which cannot be corrected after an execution has taken place.

In recent years, two other developments have undercut the public’s faith in capital punishment.

There has been a tidal wave of DNA exonerations, in which it has been scientifically proved that the wrong people had been sentenced to death. There is also increasing awareness that even methods of execution considered relatively humane impose considerable suffering on the condemned.

The Supreme Court will hear arguments next month in a case about whether the pain caused by lethal injection is so great that it violates the Eighth Amendment injunction against cruel and unusual punishment. Those who study the death penalty say that if current trends continue, eventually almost all of the nation’s executions will occur in Texas. That is not a record any state should want. Some states, such as Illinois and New Jersey, have already had wide-ranging discussions about what role they want the death penalty to play in their criminal justice system. Texas is long overdue for such a debate.

If it is unwilling to abolish the death penalty, which all states should do, Texas should at least take a hard look at a system that still produces so many executions and is so wildly out of step with the rest of the country.

    State Without Pity, NYT, 27.12.2007, http://www.nytimes.com/2007/12/27/opinion/27thu1.html

U.S. Disparity in Executions Grows as Texas Bucks Trend

December 26, 2007
The New York Times
By ADAM LIPTAK

This year’s death penalty bombshells — a de facto national moratorium, a state abolition and the smallest number of executions in more than a decade — have masked what may be the most significant and lasting development. For the first time in the modern history of the death penalty, more than 60 percent of all American executions took place in Texas.

Over the past three decades, the proportion of executions nationwide performed in Texas has held relatively steady, averaging 37 percent. Only once before, in 1986, has the state accounted for even a slight majority of the executions, and that was in a year with 18 executions nationwide.

But enthusiasm for executions outside of Texas has dropped sharply. Of the 42 executions in the last year, 26 were in Texas. The remaining 16 were spread across nine other states, none of which executed more than three people. Many legal experts say the trend will probably continue.

Indeed, said David R. Dow, a law professor at the University of Houston who has represented death-row inmates, the day is not far off when essentially all executions in the United States will take place in Texas.

“The reason that Texas will end up monopolizing executions,” he said, “is because every other state will eliminate it de jure, as New Jersey did, or de facto, as other states have.”

Charles A. Rosenthal Jr., the district attorney of Harris County, Tex., which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system was working properly. The pace of executions in Texas, he said, “has to do with how many people are in the pipeline when certain rulings come down.”

The rate at which Texas sentences people to death is not especially high given its murder rate. But once a death sentence is imposed there, said Richard C. Dieter, the executive director of the Death Penalty Information Center, prosecutors, state and federal courts, the pardon board and the governor are united in moving the process along. “There’s almost an aggressiveness about carrying out executions,” said Mr. Dieter, whose organization opposes capital punishment.

Outside of Texas, even supporters of the death penalty say they detect a change in public attitudes about executions in light of the time and expense of capital litigation, the possibility of wrongful convictions and the remote chance that someone sent to death row will actually be executed.

“Any sane prosecutor who is involved in capital litigation will really be ambivalent about it,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. He said the families of murder victims suffered needless anguish during what could be decades of litigation and multiple retrials.

“We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture.”

As a consequence, Mr. Dieter said, “we’re simply not regularly using the death penalty as a country.”

Over the last three years, the number of executions in Texas has been relatively constant, averaging 23 per year, but the state’s share of the number of total executions nationwide has steadily increased as the national totals have dropped, from 32 percent in 2005 to 45 percent in 2006 to 62 percent in 2007.

The death penalty developments that have dominated the news in recent months are unlikely to have anything like the enduring consequences of Texas’ vigorous commitment to capital punishment.

A Supreme Court case concerns how to assess the constitutionality of lethal injection protocols. While it is possible that states may have to revise the ways they execute people, executions will almost certainly resume soon after the court’s decision, which is expected by June.

Similarly, New Jersey’s abolition of the death penalty last week and Gov. Jon Corzine’s decision to empty death row of its eight prisoners is almost entirely symbolic. New Jersey has not executed anyone since 1963.

And while the total number of executions in 2007 was low, it would have been similar to those in recent years but for the moratorium, if extrapolated to a full year.

There do seem to be slight stirrings suggesting that other states might follow New Jersey. Two state legislative bodies — the House in New Mexico and the Senate in Montana — passed bills to abolish capital punishment, and in Nebraska, the unicameral legislature came within one vote of doing so.

Texas has followed the rest of the country in one respect: the number of death sentences there has dropped sharply.

In the 10 years ending in 2004, Texas condemned an average of 34 prisoners each year — about 15 percent of the national total. In the last three years, as the number of death sentences nationwide dropped significantly, from almost 300 in 1998 to about 110 in 2007, the number in Texas has dropped along with it, to 13 — or 12 percent.

Indeed, according to a 2004 study by three professors of law and statistics at Cornell published in The Journal of Empirical Legal Studies, Texas prosecutors and juries were no more apt to seek and impose death sentences than those in the rest of the country.

“Texas’ reputation as a death-prone state should rest on its many murders and on its willingness to execute death-sentenced inmates,” the authors of the study, Theodore Eisenberg, John H. Blume and Martin T. Wells, wrote. “It should not rest on the false belief that Texas has a high rate of sentencing convicted murderers to death.”

There is reason to think that the number of death sentences in the state will fall farther, given the introduction of life without the possibility of parole as a sentencing option in capital cases in Texas in 2005. While a substantial majority of the public supports the death penalty, that support drops significantly when life without parole is included as an alternative.

Once an inmate is sent to death row, however, distinctive features of the Texas justice system kick in.

“Execution dates here, uniquely, are set by individual district attorneys,” Professor Dow said. “In no other state would the fact that a district attorney strongly supports the death penalty immediately translate into more executions.”

Texas courts, moreover, speed the process along, said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.

“It’s not coincidental that the debate over lethal injections had traction in other jurisdictions but not in Texas,” Professor Steiker said. “The courts in Texas have generally not been very solicitous of constitutional claims.”

Indeed, the Supreme Court has repeatedly rebuked the state and the federal courts that hear appeals in Texas capital cases, often in exasperated language suggesting that those courts are actively evading Supreme Court rulings.

The last execution before the Supreme Court imposed a de facto moratorium happened in Texas, and in emblematic fashion. The presiding judge on the state’s highest court for criminal matters, Judge Sharon Keller, closed the courthouse at its regular time of 5 p.m. and turned back an attempt to file appeal papers a few minutes later, according to a complaint in a wrongful-death suit filed in federal court last month.

The inmate, Michael Richard, was executed that evening.

Judge Keller, in a motion to dismiss the case filed this month, acknowledged that she alone had the authority to keep the court’s clerk’s office open but said that Mr. Richard’s lawyers could have tried to file their papers directly with another judge on the court.

    U.S. Disparity in Executions Grows as Texas Bucks Trend, NYT, 26.12.2007, http://www.nytimes.com/2007/12/26/us/26death.html?hp

4.45pm GMT update

Richey hospitalised a day after death row reprieve

Thursday December 20, 2007
Guardian Unlimited
Dan Glaister in Los Angeles, Fred Attewill and agencies


A British man who was due to be released today after spending 20 years on death row in the US has been taken to hospital suffering from chest pains.

Kenny Richey, 43, had hoped to fly back to Scotland for Christmas after a plea bargain deal was reached with prosecutors, but he fell ill in prison this morning.

He was due to enter a plea of no contest to charges of involuntary manslaughter, child endangering, and breaking and entering in a hearing scheduled for today at a court in Ohio. But now court officials have said his hearing has been postponed until January 8.

His lawyer said it was not clear if Richey, who has already suffered two heart attacks since he was sentenced to death in January 1987, would need surgery.

"We have an agreement with prosecutors that as soon as he is healthy enough we will move to gat him released," Ken Parsigan told Sky News.

"Sadly it's unlikely we will be able to get him home for Christmas."

The Scot's former fiancée Karen Torley, who has campaigned for his release, said his ill health was a "cruel blow".

Richey, a former US marine who left his mother's Edinburgh home to live with his American father in Ohio, was arrested in July 1986 for the murder of two-year-old Cynthia Collins. Prosecutors alleged he had deliberately started a fire to get even with a former girlfriend who lived in the same apartment building as the toddler.

Richey always maintained his innocence and in August this year a federal appeals court ruled that his trial lawyers had mishandled the case and ordered him to be retried or released within 90 days. The court ruling said expert testimony could have contended that the fire was not intentionally set.

Prosecutors said they would retry the case in March next year, but subsequently agreed to the plea deal, giving Richey credit for time served. Following the appeal Richey was moved off death row.

"It is the greatest Christmas present that I or Kenny could have asked for," Persigian told the Press Association. The state wanted him to plead guilty and he would not do that. They have agreed to drop murder, to drop the arson and took the most basic minor face-saving deal of no contest. There was nothing left for them to fight about."

A no contest plea is not an admission of guilt but a statement that no defence will be presented. Richey refused an earlier plea deal which would have seen him serve an 11-year sentence for arson and manslaughter.

Clive Stafford-Smith of the British legal charity Reprieve, who has helped Richey's legal case for 15 years, said: "This case epitomises what is wrong with the capital punishment system.

"An innocent man gets a death sentence because he had an incompetent lawyer at trial, his conviction is reversed two decades later, and then he has to enter a plea to avoid a second death sentence. It was the right thing to do - nobody can expect him to trust a system that already got it so terribly wrong - but it's an insane process, nevertheless."

Scottish MP Alistair Carmichael, who has campaigned for Richey's release, said: "The reality of somebody who is kept locked up in a cell for 23 hours a day for 19 years is quite mind-blowing. It is a dreadful, inhumane and dehumanising system. If one man is off it, then remember there are hundreds of people in America still enduring that dreadful situation."

Richey's case attracted considerable support, and was described by Amnesty International as "one of the most compelling cases of apparent innocence human rights campaigners have ever seen."

Amnesty International UK's director, Kate Allen, said: "This is really wonderful news and we're delighted for Kenny and his family and supporters. The death penalty is always a human rights outrage, achieving nothing but suffering and injustice, and in this case Kenny suffered from particularly shoddy justice."

Torley said: "It's been an incredibly long fight for justice but we're finally seeing some semblance of that. Along with his family I'll be planning a Welcome home to Scotland party for Kenny. He has a lot of life to catch up on."

    Richey hospitalised a day after death row reprieve, G, 20.12.2007, http://www.guardian.co.uk/usa/story/0,,2230527,00.html

Profile

The 'crazy head' who longs for the Scottish rain

Thursday December 20, 2007
Guardian Unlimited
Fred Attewill

Amnesty International have described Kenny Richey's plight as "the most compelling case of innocence we have come across on death row".

Richey, born in Holland to a Scottish mother and an American father, was aged 18 when he left his mother's home in Edinburgh in 1982 to live with his father in Ohio, where he joined the US marines.

He described himself as "wild man" and a "crazy head" in those days. He was regularly drunk and getting into fights.

He was planning to return to Scotland in July 1986 when he was arrested for the murder of two-year-old Cynthia Collins, who died in a fire in her mother's apartment in Columbus Grove.

The prosecution claimed Richey started the fire because his estranged former girlfriend and her new lover - supposedly the intended targets of the attack - lived in the apartment beneath.

Lawyers claimed he poured turpentine on to a carpet and left a trail from the flat to the wooden veranda outside, where he set it alight. No one saw him at the scene and he had no trace of turpentine on his clothing.

At his trial, Richey was represented by a young and inexperienced lawyer, William Kluge. His current lawyer, Kenneth Parsigian, says Kluge made some fundamental errors. Rather than opting for a jury trial, where the doubt of just one member would have saved Richey from execution, he accepted a trial in front of a panel of judges.

Cynthia, the girl who died, had previously started two fires. Witnesses told Kluge she was fascinated with matches but he did not bring this up at the trial. Another witness told him that Cynthia's mother regularly turned off the smoke alarm in her flat because it went off during cooking. Again, Kluge chose not to bring the witness to the courtroom.

Protesting his innocence, Richey refused a plea bargain that would have led to an 11-year sentence for arson and manslaughter. He was found guilty and sentenced to death on January 27 1987.

In 1996, he was just hours away from death, He had already said goodbye to his mother and been shaved in preparation for the electric chair when the stay of execution came through.

Since 1997, his new lawyers, led by Clive Stafford Smith of the British charity Reprieve, compiled a dossier of evidence that supported his claim of innocence and launched a long series of appeals in state and federal courts.

It included the fact that the local fire brigade chief had ordered that the burnt carpet be thrown on a rubbish dump, believing the blaze to be accidental.

Days later it was recovered, but kept outside the sheriff's office next to some petrol pumps. Richey's defence said scientific tests showed the carpet bore traces of petrol not turpentine.

Richey's hopes rose in 2004 when the sixth circuit federal court of appeal in Cincinnati overturned his death sentence. It ruled new evidence was sufficient to quash the conviction and ordered prosecutors to either appeal or start proceedings for a retrial.

However, the US supreme court reinstated his death sentence in December 2005 and he was returned to death row.

Richey said earlier this year: "I was packed and ready to go home. I'd already sent my CDs, tapes and clothes back to my brother in Scotland by post. The prosecution had indicated there would be no retrial. Then the axe fell. It was devastating in so many ways.'

Speaking on the 20th anniversary of his incarceration under threat of execution, Richey said he did not feel he could survive much longer.

In July 2005, he suffered a second heart attack and he has been on heavy medication. He says is "full of hostility and rage" at his incarceration.

"Doctors have told me I need to reduce my stress. How can I do that when I'm facing death for a crime I didn't commit?" Richey said.

"After 20 years in this hell, it's finally starting to beat me down and, if I don't get out soon, I won't get out at all. I'm overwhelmed by the feeling that I'm nearing the end of my life.

"I sit on my bed and dream of Scotland. I miss fish and chips and haggis, white pudding, bridies. I miss the rain, the mist, the dreary weather. My dearest wish before I die is to stand outside in Scottish rain and to feel it soak me."

In August, his death sentence was overturned for the second time by the Cincinnati court and, until this month, he had been preparing for a retrial.

While in prison, Richey got engaged to Karen Torley, 37, from Glasgow, who has been writing to him since hearing about his case. She has said they plan to live in the Scottish Highlands.

    The 'crazy head' who longs for the Scottish rain, G, 20.12.2007, http://www.guardian.co.uk/uk_news/story/0,,2230504,00.html

Court to Release Audio in Death Case

December 20, 2007
Filed at 12:10 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court said Thursday it will quickly release audio tapes after the Jan. 7 argument over the death penalty.

The death row cases of Kentucky inmates Ralph Baze and Thomas Clyde Bowling Jr. present the question of whether the mix of drugs and the way they are administered in executions in three dozen states violate the Constitution.

The last time the court considered a challenge to a method of execution was in 1879, when it upheld the use of a firing squad in Utah.

The immediate, same-day release of audio tapes following arguments in major cases started in the 2000 presidential election, when the justices decided appeals of the Florida recount controversy in favor of George W. Bush.

On Dec. 3, the court provided same-day audio from arguments over the rights of prisoners who have been detained by the U.S. military at Guantanamo Bay, Cuba.

The court records arguments and ordinarily releases them at the end of each term. With television cameras barred from the court and reporters prohibited from using tape recorders, the availability of audio provides the public a chance to hear the justices at work.

The case is Ralph Baze and Thomas C. Bowling, Petitioners v. John D. Rees, Commissioner, Kentucky Department of Corrections, et al., 07-5439.

------

On the Net:

Supreme Court: http://www.supremecourtus.gov/

    Court to Release Audio in Death Case, NYT, 20.12.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Audio.html

Executions in U.S. Decline to 13-Year Low, Study Finds

December 19, 2007
The New York Times
By DAN FROSCH

The number of executions in the United States has declined to a 13-year low, according to a study by a research group that has been critical of the way the death penalty is applied.

The 42 executions recorded in 2007 are the fewest since 1994, when there were 31, according to the Death Penalty Information Center, which compiled the report and released it Tuesday. In 1999, there were 98 executions, the highest number since capital punishment was reinstated in 1976.

The group attributes the decline to numerous factors, including public sentiment over innocence and fairness, but most notably the decision by the Supreme Court on Sept. 25 to hear a challenge to the constitutionality of lethal injection, causing a de facto moratorium on executions.

On Dec. 17, Gov. Jon S. Corzine of New Jersey, a Democrat, signed legislation abolishing the death penalty in the state, a development the report said exemplified a trend of states shifting away from the death penalty. Legislatures in other states, including New Mexico, Montana and Nebraska, came close to abolishing it this year.

Meanwhile, 40 of 50 states had no executions this year, while 86 percent of executions occurred in the South, the report said. Texas had by far the most executions, with 26.

“The decline in the use of the death penalty across the country is evidenced through fewer death sentences, fewer executions and states considering abolishing the death penalty,” said Richard C. Dieter, the group’s executive director. “I wouldn’t say the death penalty is being rejected by the public, but there’s definitely a reconsideration under way.”

    Executions in U.S. Decline to 13-Year Low, Study Finds, NYT, 19.12.2007, http://www.nytimes.com/2007/12/19/us/19executions.html

Corzine signs bill abolishing death penalty

17 December 2007
USA Today

TRENTON, N.J. (AP) — Gov. Jon Corzine signed into law Monday a measure that abolishes the death penalty, making New Jersey the first state in more than four decades to reject capital punishment.

The bill, approved last week by the state's Assembly and Senate, replaces the death sentence with life in prison without parole.

"This is a day of progress for us and for the millions of people across our nation and around the globe who reject the death penalty as a moral or practical response to the grievous, even heinous, crime of murder," Corzine said.

The measure spares eight men on the state's death row. On Sunday, Corzine signed orders commuting the sentences of those eight to life in prison without parole.

Among the eight spared is Jesse Timmendequas, a sex offender who murdered 7-year-old Megan Kanka in 1994. The case inspired Megan's Law, which requires law enforcement agencies to notify the public about convicted sex offenders living in their communities.

New Jersey reinstated the death penalty in 1982 — six years after the U.S. Supreme Court allowed states to resume executions — but it hasn't executed anyone since 1963.

The state's move is being hailed across the world as a historic victory against capital punishment. Rome plans to shine golden light on the Colosseum in support. Once the arena for deadly gladiator combat and executions, the Colosseum is now a symbol of the fight against the death penalty.

"The rest of America, and for that matter the entire world, is watching what we are doing here today," said Assemblyman Wilfredo Caraballo, a Democrat. "New Jersey is setting a precedent that I'm confident other states will follow."

The bill passed the Legislature largely along party lines, with controlling Democrats supporting the abolition and minority Republicans opposed. Republicans had sought to retain the death penalty for those who murder law enforcement officials, rape and murder children, and terrorists, but Democrats rejected that.

"It's simply a specious argument to say that, somehow, after six millennia of recorded history, the punishment no longer fits the crime," said Assemblyman Joseph Malone, a Republican.

Members of victims' families fought against the law.

"I will never forget how I've been abused by a state and a governor that was supposed to protect the innocent and enforce the laws," said Marilyn Flax, whose husband Irving was abducted and murdered in 1989 by death row inmate John Martini Sr.

Richard Kanka, Megan's father, noted Corzine signed the bill exactly 15 years to day that death row inmate Ambrose Harris kidnapped, raped and murdered 22-year-old artist Kristin Huggins of Lower Makefield, Pa..

"Just another slap in the face to the victims," Kanka said.

The last states to eliminate the death penalty were Iowa and West Virginia in 1965, according to the National Coalition to Abolish the Death Penalty.

The nation has executed 1,099 people since the U.S. Supreme Court reauthorized the death penalty in 1976. In 1999, 98 people were executed, the most since 1976; last year 53 people were executed, the lowest since 1996.

Other states have considered abolishing the death penalty recently, but none has advanced as far as New Jersey.

The nation's last execution was Sept. 25 in Texas. Since then, executions have been delayed pending a U.S. Supreme Court decision on whether execution through lethal injection violates the constitutional ban on cruel and unusual punishment.

    Corzine signs bill abolishing death penalty, UT, 17.12.2007, http://www.usatoday.com/news/nation/2007-12-17-newjersey-deathpenalty_N.htm

Corzine Signs Law Abolishes Death Penalty in New Jersey

December 17, 2007
The New York Times
By JEREMY W. PETERS

TRENTON — Gov. Jon S. Corzine signed into law a measure repealing New Jersey’s death penalty on Monday, making the state the first in a generation to abolish capital punishment.

Mr. Corzine also issued an order commuting the sentences of the eight men on New Jersey’ death row to life in prison with no possibility of parole, ensuring that they will stay behind bars for the rest of their lives.

In an extended and often passionate speech from his office at the state capitol, Mr. Corzine declared an end to what he called “state-endorsed killing,” and said that New Jersey could serve as a model for other states.

“Today New Jersey is truly evolving,” he said. “I believe society first must determine if its endorsement of violence begets violence, and if violence undermines our commitment to the sanctity of life. To these questions, I answer yes.”

New Jersey has not executed anyone since 1963, when Ralph Hudson was put to death in the electric chair for stabbing of his estranged wife.

In 1982, six years after the United States Supreme Court allowed states to start executing prisoners again, New Jersey re-established its death penalty. It switched its method of execution to lethal injection and built a new execution chamber at the New Jersey State Prison here, where death row is housed.

While juries have sentenced more than four dozen people to death since then, the vast majority of those sentences were overturned on appeal. And even if the state had wanted to follow through with an execution, it would not have been able to.

The state’s legal procedures for execution expired in 2004. Those procedures were rewritten but never finalized, and they ultimately expired in 2005.

The process of abolishing the death penalty moved forward at an unusually fast pace. A bill replacing capital punishment with life in prison with no chance of parole first passed a Senate committee in May, but did not advance any further until this month. Leaders of both chambers in state Legislature made the bill a top priority of the current legislative session, and vowed after the November elections to vote on the issue before the end of the year.

In less than two weeks, the bill passed the state Senate and General Assembly and was signed by the governor.

    Corzine Signs Law Abolishes Death Penalty in New Jersey, NYT, 17.12.2007, http://www.nytimes.com/2007/12/17/nyregion/17cnd-jersey.html?hp

New Jersey Moves to End Its Death Penalty

December 14, 2007
The New York Times
By JEREMY W. PETERS

TRENTON — The New Jersey General Assembly approved a bill eliminating capital punishment on Thursday, clearing the way for Gov. Jon S. Corzine to sign the measure as early as Monday.

Mr. Corzine said he would act quickly. “It will be very, very prompt,” he said at a news conference on Thursday. “I’m sure it will be within the next week.”

Once he signs the bill, New Jersey will become the first state in the modern era of capital punishment to repeal the death penalty.

The measure has moved at an unusually fast pace through the Legislature. In the last week, it passed a Senate committee, an Assembly committee and both houses, leading many Republicans to accuse the Democratic leadership of trying to rush the bill through a lame-duck session.

“I am ashamed the Assembly would consider this bill today,” said Assemblyman Richard A. Merkt, a conservative Republican from Randolph.

The voting did not break down exclusively along party lines, however. Three Republicans joined 41 Democrats in the Assembly to pass the bill, 44 to 36. Surprisingly, nine Democrats voted against the measure. On Monday in the Senate, 4 Republicans joined 17 Democrats to muster just enough support to get the 21 votes needed to pass a bill.

“We need to put politics aside,” said Christopher Bateman, a Republican from Somerville. “I think we have an opportunity today to change the course on this very important issue.”

Several state legislatures have tried to overturn their death penalties since 1976, when the United States Supreme Court set the framework for the current system of capital punishment. And while executions have come to a halt by other means — through a moratorium, for example, issued by the governor of Illinois, and a court ruling declaring New York’s penalty unconstitutional — no state legislature has ever flatly outlawed the death penalty.

Once the governor signs the bill, the New Jersey Department of Corrections will begin deciding what to do with the eight men on death row in the New Jersey State Prison here. Under the bill, inmates sentenced to death have 60 days to petition their sentencing courts to commute their sentences to life in prison with no possibility of parole. They also must agree to forego their rights to any further appeals.

If they do not petition the court, their death sentences remain in place. But since the state’s capital punishment statute will be repealed, their sentences will be effectively equivalent to life in prison without the possibility of parole.

Some of the most violent death-row inmates — those who are allowed no contact with other inmates — will probably be placed in a unit of the prison that is nearly identical to death row, confined for almost the entire day in a cell measuring 7 feet by 11 feet, correction officials said. The less violent death-row inmates may be moved to the prison’s general population.

The Department of Corrections has said it will take up the matter once Mr. Corzine signs the bill.

    New Jersey Moves to End Its Death Penalty, NYT, 14.12.2007, http://www.nytimes.com/2007/12/14/nyregion/14death.html

Arguing Against the Death Penalty, in a Gym Near Connecticut’s Death Row

December 14, 2007
The New York Times
By THOMAS KAPLAN and ALISON LEIGH COWAN

ROCKVILLE, Conn. — In a ground-floor courtroom here on Thursday morning, a plasma television offered a pixilated glimpse of what appeared to be a school gymnasium set up for a debate team tournament.

Yet the image of the gym was not from a school, but from the Northern Correctional Institution, a maximum security prison 13 miles away in Somers.

Judge Stanley T. Fuger Jr. of Superior Court usually presides over his cases in a courthouse. But with seven of the nine residents of Connecticut’s death row expected to appear before him — defending their claims that Connecticut’s death penalty discriminates against minorities — state officials had deemed no courthouse secure enough.

So Judge Fuger turned the prison’s basketball court into a real court. His bench — little more than a wooden desk, swivel chair and microphone — sat on one sideline. At half court, lawyers spoke at a lectern, flanked by plastic folding tables.

Behind them and opposite the judge were the five inmates who had chosen to attend the hearing, each shackled at the hands and feet and each in a makeshift cubicle meant to separate them. They were accompanied by their lawyers and correction officers.

Beyond the sheer oddity of the proceeding, John Massameno, a senior assistant state’s attorney, objected to the case as “the most egregious abuse of the writ of habeas corpus that we have witnessed and that the courts have accumulated a record of.”

At the least, it made for one of the most bizarre courtroom scenes in recent memory, and state officials were hard-pressed to say when an actual proceeding, judge and all, had taken place inside a prison.

“I can’t say it’s the first time,” said Brian Garnett, a spokesman for the Department of Correction, “but it’s highly unusual.”

It took place on the same day that the New Jersey Assembly approved legislation to abolish its death penalty. The bill is expected to be signed by Gov. Jon S. Corzine, making the state the first in four decades to ban executions. The State Senate approved the bill on Monday.

New York effectively banned its death penalty in 2004 when the State Supreme Court found flaws in the law, and legislators let the decision stand.

Although Connecticut has not executed anyone in decades, the murder of a mother and her two daughters in Cheshire this summer has again forced the issue of capital punishment into the state’s collective consciousness.

In the prison gym on Thursday, the lawyers for the inmates spent the morning arguing against a motion by the state to dismiss their habeas corpus challenge on the grounds that they had taken too long to develop their argument and had abandoned an earlier study, paid for by taxpayers, about whether the death penalty was discriminatory. He suggested that the inmates’ lawyers had abandoned it because it did not help their cause.

“While the state is certainly not in favor of any rush to judgment,” Mr. Massameno said, “we certainly don’t think it would be appropriate to countenance the kind of unwarranted delay and obstructionism and misstatements that have occurred in this case.”

Undaunted, lawyers for the inmates filed into evidence a newly completed 127-page report by John J. Donohue III, a Yale Law School professor and economist, that they said showed that the death penalty in Connecticut was applied in an unfair and almost random fashion.

David Golub, a lawyer for the inmates, defended the new report and said that the petitioners had followed every scheduling order throughout the case.

“The lawyer has the right to bring a case even if the evidence is to be developed while the case is in progress,” Mr. Golub said.

The inmates in the gym — two black, two white and one Hispanic — had little in common beyond their shared objection to the death penalty. They ranged in age from 28-year-old Eduardo Santiago, convicted of carrying out a murder-for-hire seven years ago in West Hartford, to 61-year-old Robert Breton, convicted of murdering his former wife and teenage son 20 years ago in Waterbury.

Two other death row members, both black, who are also participating in the habeas corpus petition, chose not to attend the hearing on Thursday. One of them, Russell Peeler Jr., only made his way to death row on Monday after a judge affirmed the death sentence he received for orchestrating the murder of a Bridgeport mother and her son in an effort to keep the boy from testifying against him in another trial.

None of the inmates spoke during the three-hour proceeding. On the closed-circuit video transmission, they stood out in their bright yellow jumpsuits, sitting, and occasionally fidgeting, in their individual cubicles.

State officials had not wanted them there in the first place. In a letter dated Nov. 21, Theresa C. Lantz, the state correction commissioner, said she wanted the hearing to take place without the inmates because of safety concerns. Short of that, she sought separate hearings to minimize the potential for violence.

Her third choice, she wrote, was for the proceeding to take place inside the prison, off-limits to the public.

And so it did. There were at least two correction officers for each inmate, and lawyers had to pass background checks, and leave their cellphones and BlackBerrys outside — along with paper clips.

Even with all the security precautions, the hearing began precisely at 10 a.m., allowing Mr. Massameno and Mr. Golub to conclude their arguments before the court system was shut down because of snow at 1 p.m.

And the gymnasium in Somers returned to being a gymnasium.

    Arguing Against the Death Penalty, in a Gym Near Connecticut’s Death Row, NYT, 14.12.2007, http://www.nytimes.com/2007/12/14/nyregion/14habeas.html

New Jersey legislature votes to end death penalty

Thu Dec 13, 2007
7:21pm EST
Reuters
By Jon Hurdle

TRENTON, New Jersey (Reuters) - New Jersey on Thursday became the first U.S. state to legislatively abolish the death penalty since the U.S. Supreme Court reinstated capital punishment in 1976.

Lawmakers in the Democrat-controlled state Assembly voted 44-36 in favor of a bill to scrap the death penalty and substitute it with life in prison without the possibility of parole for those found guilty of the most serious crimes.

The vote followed approval by the state Senate on Monday, and the measure was expected to be signed into law next week by Democratic Gov. Jon Corzine, a foe of capital punishment.

New Jersey, which has not executed anyone since 1963, becomes the 14th state without a death penalty at a time when its use is declining in most of the 36 states -- plus the federal government and U.S. military -- that retain it.

"If someone commits a heinous crime, we need to excise them from society like a cancer, and I believe we can do that without the death penalty," said Assembly Speaker Joseph Roberts, a leading backer of abolition.

Nationwide, the United States executed 53 people in 2006, the fewest in 10 years, and the tally is expected to fall further this year. The number of death sentences handed down by the courts fell 60 percent between 1999 and 2006, according to research group the Death Penalty Information Center.

Exonerations of convicts based on DNA testing have fueled concern about the risks of executing innocent people, and doubts persist about the death penalty's effectiveness as a deterrent to murder and other serious crimes.

In a 2-1/2-hour debate, most Democrats spoke in favor of repealing the death penalty while Republicans urged the Assembly to retain it.

'BARBARIC RELIC'

Republican Marcia Karrow urged lawmakers to reserve the death penalty for "monsters" like the man who murdered a relative of one of her constituents.

"He eviscerated her, a beautiful young woman, and he treated her like an animal," Karrow said.

Republican Assemblyman Richard Merkt called the abolition a victory for murderers and rapists and accused legislators of ignoring the wishes of voters.

But Democrat Wilfredo Caraballo, the bill's leading sponsor, said the death penalty means there is always a risk that innocent people could be executed.

An opinion poll published on Tuesday found 78 percent of New Jersey voters would keep the death penalty for the worst criminals, such as serial killers or child murderers. But a Quinnipiac University poll also found 52 percent preferred life without parole for people guilty of first-degree murder.

Eddie Hicks, whose 26-year-old daughter was murdered in 2000, welcomed the vote and called the death penalty a "barbaric relic." Amnesty International and Human Rights Watch also applauded the decision.

The U.S. Supreme Court has imposed an effective moratorium on the death penalty pending its decision, due by mid-2008, on whether the method used for lethal injection -- the means of execution in all but one state -- is legal given the Constitution's ban on "cruel and unusual punishment."

Death penalty opponents say prisoners may be subjected to extreme pain by the cocktail of drugs used to kill them but cannot cry out because one of the substances causes paralysis.

The eight men on death row in New Jersey will now be able to request that their sentences be commuted to life imprisonment. If they fail to do so within 60 days, they may still be executed when appeals are exhausted.
 

(Editing by Michelle Nichols and Xavier Briand)

    New Jersey legislature votes to end death penalty, R, 13.12.2007,http://www.reuters.com/article/domesticNews/idUSN1324400820071214

Court Rejects Ala. Death Row Challenge

November 26, 2007
Filed at 10:26 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court on Monday refused to allow a death row inmate to try to prove his innocence through DNA testing.

Thomas Arthur, 65, was sentenced for the 1982 killing of Troy Wicker of Muscle Shoals, Ala. His execution has been set for Dec 6, but is expected to be delayed because of a pending Supreme Court case involving lethal injections.

The victim's wife, Judy Wicker, testified at Arthur's trial that she had sex with him and paid him $10,000 to kill her husband, who was shot in the face as he lay in bed. Earlier at her own trial, Wicker testified that a man burglarizing her home raped her, knocked her unconscious and then shot her husband.

In April, Arthur's lawyers sued the state claiming that the inmate was being deprived of his rights and was entitled to DNA testing of critical pieces of physical evidence, including a rape kit, bloodstained clothing and hairs aimed at showing that someone other than Arthur committed the murder.

The 11th U.S. Circuit Court of Appeals in Atlanta affirmed a federal judge's dismissal of Arthur's lawsuit, citing the authority of federal courts to dismiss such claims that are speculative or are filed too late in proceedings.

Arthur filed his claim five days before the state of Alabama moved to set an execution date.

The case is Arthur v. King, 07-397.

    Court Rejects Ala. Death Row Challenge, NYT, 26.11.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Arthur.html

Court Seeks Altered Death Penalty Appeal

November 20, 2007
Filed at 7:48 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

SAN FRANCISCO (AP) -- The state Supreme Court will seek an amendment to the California constitution that would change the death penalty appeals process to help ease the court's backlog of cases, the chief justice said.

Under the current system, death sentences are automatically appealed to the California Supreme Court.

The proposal would allow many cases to be handled by one of the state's six appeals courts, with the high court stepping in when a significant legal issue needs resolution or justices find another reason to review it.

The number of automatic death sentence appeals already threatens to overwhelm the Supreme Court's docket, making up about 20 percent of the court's caseload, Chief Justice Ronald M. George said.

''I don't want to pretend this is going to solve all the problems. But it will solve a big part of it,'' he said Monday.

The average wait for execution in the state is now 17.5 years. The backlog is likely to grow, considering the trend: Thirty people have been on death row for more than 25 years, 119 for more than 20 years and 408 for more than a decade.

California's death row, with 666 inmates, is the nation's largest. While 58 death row inmates have died of old age, suicide, or prison violence in the last 30 years, 13 have been executed since the death penalty's reinstatement in 1978.

A legal challenge to the constitutionality of execution by lethal injection has put all California executions on hold for the last 18 months.

A constitutional amendment is required to change the current appeals process.

George said he hopes to find a legislator who will sponsor the measure, which would then require two-thirds of lawmakers to approve it. A majority of voters also would need to approve the change.

California Attorneys for Criminal Justice, a defense lawyers' association, said ''constitutional amendments are not the appropriate remedy for court congestion. This proposal fails to address the major problem: lack of qualified attorneys.''

Death Penalty Focus, a San Francisco-based nonprofit agency that opposes capital punishment, hasn't yet taken an official position on the proposal, but a spokeswoman said she's ''very concerned.''

''Further increasing of the number of individuals reviewing these cases ... could cause increased disparities in the already unfair administration of the death penalty,'' Stefanie Faucher said.

All death sentences go through a similar appeals process.

First, the case undergoes an automatic direct appeal, which considers issues contained within the trial transcript like whether defendants were properly read their rights or whether a jury received proper instructions.

Next, outside issues like juror misconduct or inadequate legal representation are considered. After both appeals are complete, then the accused may begin the federal appeals process.

    Court Seeks Altered Death Penalty Appeal, NYT, 20.11.2007, http://www.nytimes.com/aponline/us/AP-Death-Penalty-Appeals-California.html

Morality and the Death Penalty

November 20, 2007
The New York Times

To the Editor:

Re “Does Death Penalty Save Lives? A New Debate” (front page, Nov. 18):

The revived debate over the death penalty already seems destined to miss the mark. It is not a technical or empirical issue, but a moral one. As such, economists and other social scientists have little to tell us as empirical chroniclers about the death penalty’s continued use.

Although a demonstration that the death penalty has no deterrent effect would be morally significant in curbing its use, there is no particular or free-standing moral significance to the claim that it does have some deterrent effect.

There are all manner of punishments and innovations that might be introduced if deterrence were the only or main determinant of its social acceptability: chopping off limbs, stoning people and corporal punishment might be usefully retried.

The fact is that the death penalty, like limb-chopping or stoning, is a morally outrageous practice whatever its deterrent effect: it reduces society to the ethical level of the murderer. In a society that aspires to be moral and just, there is no room for such a state-sanctioned uncivilized practice.

Allan C. Hutchinson
Cambridge, Mass., Nov. 18, 2007
The writer is a visiting professor at Harvard Law School.

•

To the Editor:

Statistical analysis may sound scientific, but people don’t behave according to economists’ mathematical formulas. If the death penalty deterred killers, we would be able to find at least one, in a state without the death penalty, who expected to be caught and imprisoned for life but committed murder anyway. No rational person would make that exchange.

Economists will keep debating the numbers, but they should support public policy that sends clear, rational messages. Here’s one: Killing people is wrong — whether they’re walking in a dark alley or strapped to a gurney.

Howard Tomb
Brooklyn, Nov. 18, 2007

•

To the Editor:

Even if we have no clue whether or not the death penalty actually deters, crime prevention is only one of a handful of reasons that a jurisdiction might consider when choosing to mete out the ultimate punishment.

Retribution and the community’s expression of moral outrage are at least as important. Failure to deter doesn’t inevitably drive us to the logical conclusion to execute the death penalty itself.

Jonathan Lubin
New Haven, Nov. 18, 2007
The writer is a student at Yale Law School.

•

To the Editor:

If the death penalty actually deterred others from committing murder, you would think that the death row in Texas would be almost empty by this time and our murder rate would be near zero. We have had 405 executions in Texas during the last 25 years, four times more than any other state in the nation, and we still have about 370 people on death row. Somehow, criminals are not getting the message.

The most recent study on deterrence in Texas was published in 1999. A team of university researchers found no evidence of a deterrent effect when the death penalty was carried out in Texas. I would think that this study done by university professionals in the most prolific death penalty state in the nation would have a high degree of credibility in this debate.

My personal experience from visiting prisoners on death row over many years is that they were often high on alcohol or drugs, were not thinking of consequences, and did not think that they would be caught.

If we want to deter violent crime, we must do a much better job in financing programs that prevent violent crime, such as drug and alcohol rehabilitation programs, mental health services, child protective services and anti-gang programs.

David Atwood
Houston, Nov. 18, 2007
The writer is founder of the Texas Coalition to Abolish the Death Penalty.

•

To the Editor:

Studies that suggest execution as a method of lowering the murder rate are invalid because the cost of alternative means was not considered. Your article doesn’t acknowledge that the assumption that underlies economics — rational choice — is inapplicable. If rational choice applied, communities would weigh the cost of execution against other means of prevention.

Of the men I have represented on death row, three were turned away from drug treatment centers shortly before the crimes. Other murders would have been prevented if social services had been sufficiently financed to intervene in horrific childhoods. Mentally ill individuals, too poor to afford care, ended up on death row after psychosis-driven murders.

Spending millions on execution, while cost-cutting on other services, is not a rational choice. The death penalty increases the murder rate, because it necessitates allocation of limited tax dollars to execution while cutting basic social and mental health services.

Marilyn Ozer
Chapel Hill, N.C., Nov. 18, 2007

•

To the Editor:

The possibility that the death penalty does in fact serve as a deterrent brings up an important, if unsettling, question: If we are going to execute criminals because doing so will prevent other crimes and save lives, shouldn’t we do everything possible to maximize that deterrence with as much publicity as possible? Shouldn’t we mandate public executions?

I think we know the answer: there is a deep, natural revulsion against seeing a person killed — by the state or anyone else. And that should tell us something about the death penalty.

It is antithetical to civilized society. It does more damage than good. Advocates for the death penalty might disagree. But then they would need to answer honestly why we keep the death penalty behind closed doors.

Fred P. Hochberg
New York, Nov. 18, 2007
The writer is dean of the Milano School for Management and Urban Policy at the New School.

    Morality and the Death Penalty, NYT, 20.11.2007, http://www.nytimes.com/2007/11/20/opinion/l20death.html

New Jersey Moves to End Death Penalty

November 19, 2007
The New York Times
By JEREMY W. PETERS

TRENTON, Nov. 18 — The eight men confined to the Capital Sentences Unit of 3 Wing in the New Jersey State Prison, ranging in age from 77 to 30, have a better chance of dying of old age than they do of lethal injection on an executioner’s gurney.

For one thing, the state has not executed anyone since 1963.

But in a move that is being closely watched by both sides of the capital punishment debate, New Jersey is on track to become the first state to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976.

A bill that would abolish New Jersey’s death penalty was approved by the Senate Judiciary Committee this spring and is now on a fast track to be considered by both houses within weeks. The Senate president, Richard J. Codey, who supports the measure, said this month that he planned to bring the bill to a vote before the full chamber by the end of the year.

In the Assembly, the speaker, Joseph J. Roberts Jr., has set a committee hearing on Dec. 6 for a nearly identical bill, and he said he expected a floor vote the following week.

Gov. Jon S. Corzine, who is opposed to the death penalty, has said that he will sign the measure into law if it reaches his desk.

There has been a growing call for states to take another look at their death penalty laws in recent years as more inmates on death row are exonerated. In addition, questions about whether executions amount to cruel and unusual punishment have prompted several states, including New Jersey, to review their methods of capital punishment.

But supporters of the death penalty have as ammunition a number of recent academic studies backing one of their principal arguments: that executions do have a deterrent effect on the murder rate.

For their part, opponents of the death penalty hope that that if the bill becomes law, it could spark further re-examination of capital sentence laws across the country.

“It would be a historic measure,” said Richard C. Dieter, executive director of the Death Penalty Information Center, a research group opposed to capital punishment. “I think it is part of this bigger picture where the death penalty is on the defensive.”

In recent rulings, the United States Supreme Court has narrowed the use of capital punishment, declaring it unconstitutional to execute juvenile killers or the mentally retarded. And late last month, the court effectively halted executions nationwide until it decides whether the drug cocktail most commonly used in lethal injections is constitutional.

What makes the New Jersey initiative unusual, groups opposed to the death penalty say, is that a state legislature rather than a court or a governor would be declaring an end to capital punishment. In other states where executions have recently been halted, the decision was based on a court ruling, as in New York, or through a moratorium imposed by the governor, as in Illinois and Maryland.

“When you have a legislature taking a stand, it’s not three or four people on a bench,” said Shari Silberstein, a director at Equal Justice USA, a group based in Maryland that advocates abolishing the death penalty. “It’s more reflective of the popular will.”

Ms. Silberstein added: “A state that deliberately decided to have a death penalty would be deliberately deciding not to have a death penalty. And I think that means something.”

Other states, like Nebraska and New Mexico, have considered bills that would abolish the death penalty, but those efforts have fallen short.

While opponents of the death penalty consider New Jersey their best hope for a legislative victory, approval is not assured. Although Democrats control both houses in the Legislature, not all of them are likely to vote along party lines. Democratic leaders in both houses agree that passage in the Assembly is highly likely, but they say getting the measure through the Senate could be more difficult.

Mr. Codey, who has thrown his full support behind the bill, said he was not declaring victory yet. “I think it’ll be close,” he said.

Complicating the task for Mr. Codey, proponents of the death penalty do not plan to sit by idly.

State Senator Gerald Cardinale, a Republican and the Senate’s leading social conservative, said he planned to start lobbying members to support a bill that would retain the death penalty but narrow the circumstances in which it would apply. That measure could attract votes from legislators who generally oppose capital punishment but do not want to appear soft on crime.

Robert Blecker, a professor of criminal law at New York Law School who has pushed for keeping New Jersey’s death penalty in place, said that fast-tracking the legislation does not leave time for the consideration that an issue as significant as capital punishment deserves. “This is being done without deliberation, without debate,” he said of the bill. “It’s a rush to judgment.”

Professor Blecker contended that Democrats were trying to speed the bill through the Legislature while ignoring the argument that society can benefit from the death penalty.

“There is something extraordinarily significant and symbolic about the process of condemning somebody to death, to say to someone, ‘You do not deserve to live,’ ” he said. “Even if it is not carried out, it still is a signal.”

A handful of recent studies that looked at murder rates around the country have concluded that the death penalty does prevent murders: from 3 to 18 for every inmate put to death. The effect is greatest in states, like Texas, that execute criminals relatively quickly and frequently, some studies say.

The studies have been criticized on a number of grounds, with some arguing that the effects of executions, if any, cannot be disentangled from larger social factors like the overall crime rate, police budgets and the economy. A 13-member commission in New Jersey that studied the death penalty reviewed some of the studies and found them “conflicting and inconclusive.”

The death penalty in the state has been effectively unenforceable since the state’s procedures for lethal injection expired in September 2005, and the Department of Corrections, which is charged with rewriting them, has no plans to do so.

After an extensive review, the state commission recommended in January that the death penalty be abolished and replaced with life in prison without the possibility of parole. The commission determined that capital punishment in New Jersey was a waste of state resources that served no legitimate punitive purpose. According to the most recent figures from the Corrections Department, the state spent $84,474 in 2006 housing each inmate on death row, compared with $32,400 for a prisoner in the general population.

In addition, those costs do not take into account what the state spends to defend capital cases through the public defender’s office, or to hear the numerous appeals that are usually filed after a death sentence is rendered.

Mr. Codey, who sponsored the bill that reinstated the death penalty in New Jersey in 1982, said that ending capital punishment here had nothing to do with shaping the national debate or sending a message to other states.

“People’s opinions since 1981 have changed,” he said. “And I can’t intelligently make the argument that it’s going to deter anybody because they know they’re never going to get executed.”

    New Jersey Moves to End Death Penalty, NYT, 19.11.2007, http://www.nytimes.com/2007/11/19/nyregion/19legis.html

Does Death Penalty Save Lives? A New Debate

November 18, 2007
The New York Times
By ADAM LIPTAK

For the first time in a generation, the question of whether the death penalty deters murders has captured the attention of scholars in law and economics, setting off an intense new debate about one of the central justifications for capital punishment.

According to roughly a dozen recent studies, executions save lives. For each inmate put to death, the studies say, 3 to 18 murders are prevented.

The effect is most pronounced, according to some studies, in Texas and other states that execute condemned inmates relatively often and relatively quickly.

The studies, performed by economists in the past decade, compare the number of executions in different jurisdictions with homicide rates over time — while trying to eliminate the effects of crime rates, conviction rates and other factors — and say that murder rates tend to fall as executions rise. One influential study looked at 3,054 counties over two decades.

“I personally am opposed to the death penalty,” said H. Naci Mocan, an economist at Louisiana State University and an author of a study finding that each execution saves five lives. “But my research shows that there is a deterrent effect.”

The studies have been the subject of sharp criticism, much of it from legal scholars who say that the theories of economists do not apply to the violent world of crime and punishment. Critics of the studies say they are based on faulty premises, insufficient data and flawed methodologies.

The death penalty “is applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors,” John J. Donohue III, a law professor at Yale with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote in the Stanford Law Review in 2005. “The existing evidence for deterrence,” they concluded, “is surprisingly fragile.”

Gary Becker, who won the Nobel Prize in economics in 1992 and has followed the debate, said the current empirical evidence was “certainly not decisive” because “we just don’t get enough variation to be confident we have isolated a deterrent effect.”

But, Mr. Becker added, “the evidence of a variety of types — not simply the quantitative evidence — has been enough to convince me that capital punishment does deter and is worth using for the worst sorts of offenses.”

The debate, which first gained significant academic attention two years ago, reprises one from the 1970’s, when early and since largely discredited studies on the deterrent effect of capital punishment were discussed in the Supreme Court’s decision to reinstitute capital punishment in 1976 after a four-year moratorium.

The early studies were inconclusive, Justice Potter Stewart wrote for three justices in the majority in that decision. But he nonetheless concluded that “the death penalty undoubtedly is a significant deterrent.”

The Supreme Court now appears to have once again imposed a moratorium on executions as it considers how to assess the constitutionality of lethal injections. The decision in that case, which is expected next year, will be much narrower than the one in 1976, and the new studies will probably not play any direct role in it.

But the studies have started to reshape the debate over capital punishment and to influence prominent legal scholars.

“The evidence on whether it has a significant deterrent effect seems sufficiently plausible that the moral issue becomes a difficult one,” said Cass R. Sunstein, a law professor at the University of Chicago who has frequently taken liberal positions. “I did shift from being against the death penalty to thinking that if it has a significant deterrent effect it’s probably justified.”

Professor Sunstein and Adrian Vermeule, a law professor at Harvard, wrote in their own Stanford Law Review article that “the recent evidence of a deterrent effect from capital punishment seems impressive, especially in light of its ‘apparent power and unanimity,’ ” quoting a conclusion of a separate overview of the evidence in 2005 by Robert Weisberg, a law professor at Stanford, in the Annual Review of Law and Social Science.

“Capital punishment may well save lives,” the two professors continued. “Those who object to capital punishment, and who do so in the name of protecting life, must come to terms with the possibility that the failure to inflict capital punishment will fail to protect life.”

To a large extent, the participants in the debate talk past one another because they work in different disciplines.

“You have two parallel universes — economists and others,” said Franklin E. Zimring, a law professor at the University of California, Berkeley, and the author of “The Contradictions of American Capital Punishment.” Responding to the new studies, he said, “is like learning to waltz with a cloud.”

To economists, it is obvious that if the cost of an activity rises, the amount of the activity will drop.

“To say anything else is to brand yourself an imbecile,” said Professor Wolfers, an author of the Stanford Law Review article criticizing the death penalty studies.

To many economists, then, it follows inexorably that there will be fewer murders as the likelihood of execution rises.

“I am definitely against the death penalty on lots of different grounds,” said Joanna M. Shepherd, a law professor at Emory with a doctorate in economics who wrote or contributed to several studies. “But I do believe that people respond to incentives.”

But not everyone agrees that potential murderers know enough or can think clearly enough to make rational calculations. And the chances of being caught, convicted, sentenced to death and executed are in any event quite remote. Only about one in 300 homicides results in an execution.

“I honestly think it’s a distraction,” Professor Wolfers said. “The debate here is over whether we kill 60 guys or not. The food stamps program is much more important.”

The studies try to explain changes in the murder rate over time, asking whether the use of the death penalty made a difference. They look at the experiences of states or counties, gauging whether executions at a given time seemed to affect the murder rate that year, the year after or at some other later time. And they try to remove the influence of broader social trends like the crime rate generally, the effectiveness of the criminal justice system, economic conditions and demographic changes.

Critics say the larger factors are impossible to disentangle from whatever effects executions may have. They add that the new studies’ conclusions are skewed by data from a few anomalous jurisdictions, notably Texas, and by a failure to distinguish among various kinds of homicide.

There is also a classic economics question lurking in the background, Professor Wolfers said. “Capital punishment is very expensive,” he said, “so if you choose to spend money on capital punishment you are choosing not to spend it somewhere else, like policing.”

A single capital litigation can cost more than $1 million. It is at least possible that devoting that money to crime prevention would prevent more murders than whatever number, if any, an execution would deter.

The recent studies are, some independent observers say, of good quality, given the limitations of the available data.

“These are sophisticated econometricians who know how to do multiple regression analysis at a pretty high level,” Professor Weisberg of Stanford said.

The economics studies are, moreover, typically published in peer-reviewed journals, while critiques tend to appear in law reviews edited by students.

The available data is nevertheless thin, mostly because there are so few executions.

In 2003, for instance, there were more than 16,000 homicides but only 153 death sentences and 65 executions.

“It seems unlikely,” Professor Donohue and Professor Wolfers concluded in their Stanford article, “that any study based only on recent U.S. data can find a reliable link between homicide and execution rates.”

The two professors offered one particularly compelling comparison. Canada has executed no one since 1962. Yet the murder rates in the United States and Canada have moved in close parallel since then, including before, during and after the four-year death penalty moratorium in the United States in the 1970s.

If criminals do not clearly respond to the slim possibility of an execution, another study suggested, they are affected by the kind of existence they will face in their state prison system.

A 2003 paper by Lawrence Katz, Steven D. Levitt and Ellen Shustorovich published in The American Law and Economics Review found a “a strong and robust negative relationship” between prison conditions, as measured by the number of deaths in prison from any cause, and the crime rate. The effect is, the authors say, “quite large: 30-100 violent crimes and a similar number or property crimes” were deterred per prison death.

On the other hand, the authors found, “there simply does not appear to be enough information in the data on capital punishment to reliably estimate a deterrent effect.”

There is a lesson here, according to some scholars.

“Deterrence cannot be achieved with a half-hearted execution program,” Professor Shepherd of Emory wrote in the Michigan Law Review in 2005. She found a deterrent effect in only those states that executed at least nine people between 1977 and 1996.

Professor Wolfers said the answer to the question of whether the death penalty deterred was “not unknowable in the abstract,” given enough data.

“If I was allowed 1,000 executions and 1,000 exonerations, and I was allowed to do it in a random, focused way,” he said, “I could probably give you an answer.”

    Does Death Penalty Save Lives? A New Debate, NYT, 18.11.2007, http://www.nytimes.com/2007/11/18/us/18deter.html?hp

Doc Once Banned From Executions Hired

November 15, 2007
Filed at 11:52 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

ST. LOUIS (AP) -- A surgeon once barred from participating in state executions because of a federal judge's concerns about his dyslexia and lack of expertise has been hired for a federal government execution team, according to court records.

The federal ruling keeping Dr. Alan Doerhoff from working on Missouri executions was eventually overturned, but state officials have said they would not use Doerhoff again.

Doerhoff was the target of more than 20 malpractice lawsuits and was reprimanded by the state for not disclosing them.

The federal government has hired Doerhoff as part of a team that executes condemned prisoners by injection at the federal prison at Terre Haute, Ind., according to a court pleading filed by six inmates sentenced to die there. The inmates challenged the government for relying on Doerhoff's help in performing execution duties.

Calls to Doerhoff and the U.S. Department of Justice were not immediately returned. His hiring was first reported Thursday in the Los Angeles Times.

A spokeswoman for the federal Bureau of Prisons said the agency could not comment and would not identify anyone on its execution team.

Richard Dieter, executive director of the Death Penalty Information Center, called Doerhoff's federal role ''surprising and disturbing'' and proof that ''people are in the dark about much of this.''

Last year, U.S. District Judge Fernando Gaitan Jr. called for reforms to Missouri executions and ruled that Doerhoff, 63, of Jefferson City, could not participate ''in any manner, at any level'' in the state's lethal injection process.

The doctor said in a deposition hearing that he is dyslexic, transposes numbers, and mixed and administered lethal drugs without a written lethal injection protocol, despite his lack of training in anesthesiology. A federal appeals court overturned Gaitan's ruling.

According to the newly revealed court records, Doerhoff was brought on at Terre Haute to develop execution procedures, place and monitor intravenous lines, assess a condemned inmate's level of consciousness after anesthesia is administered, and make a determination of death.

It's the only federal prison where executions occur, though executions there are on hold because the U.S. Supreme Court has agreed to review the constitutionality of lethal injection in a Kentucky case.

It's not clear how long Doerhoff has been helping the federal government and whether he assisted in executions in the past, or in the planning for future ones. Some of the material in the court record was redacted, and attorney Paul Enzinna, who filed the inmates' pleading, declined to comment.

    Doc Once Banned From Executions Hired, NYT, 15.11.2007, http://www.nytimes.com/aponline/us/AP-Federal-Executions-Doctor.html

Justices Move Again to Postpone an Execution

November 16, 2007
The New York Times
By KIRK SEMPLE

MIAMI, Nov. 15 — The Supreme Court on Thursday blocked the execution of a Florida inmate, less than five hours before he was scheduled to die by lethal injection for killing an 11-year-old boy.

It was the fifth time in two months that the court has issued or upheld a stay of execution, strongly signaling once again that it intends to block all executions by lethal injection until it rules on the central issue in a case from Kentucky: whether the three-drug “cocktail” commonly used to execute prisoners is so likely to produce needless pain and suffering as to be unconstitutional.

The Supreme Court’s ruling capped a two-day series of seesawing court rulings in the Florida case.

On Wednesday, a federal judge in Orlando ordered a stay of the execution of the inmate, Mark D. Schwab, who had been scheduled to die at 6 p.m. Thursday for the rape and murder of his victim in 1991. The judge cited the pending lethal injection case before the Supreme Court as a reason for delaying the execution.

But that stay was vacated Thursday morning by the United States Court of Appeals for the 11th Circuit in Atlanta, which said in a written opinion that the evidence in the case did not prove that Florida’s lethal injection methods “pose an unnecessary risk of pain.”

While noting the case before the Supreme Court, the three-judge panel said it was not its “role to pre-empt” the higher court’s actions in pending cases.

“The interest of the State of Florida and the victim’s family in seeing that Schwab’s sentence is carried out without further delay is substantial,” the appellate panel wrote. Within hours, however, the Supreme Court reversed that ruling.

The Supreme Court did not give a reason for its decision, saying only in a one-paragraph order that the stay would remain in effect until it had evaluated a request by Mr. Schwab’s lawyers to review the case.

Mr. Schwab’s lead lawyer, Mark Gruber, said in an interview that he had spoken with his client by telephone after the Supreme Court’s midday decision. “He was terrified,” Mr. Gruber said, “and now he’s relieved.”

Mr. Schwab kidnapped, raped and killed Junny Rios-Martinez shortly after serving three years of an eight-year prison sentence for sexual assault. The case prompted the Florida Legislature to pass the Junny Rios-Martinez Act, which bars sex offenders from early release from prison.

    Justices Move Again to Postpone an Execution, NYT, 16.11.2007, http://www.nytimes.com/2007/11/16/washington/16florida.html

Appeals Court Allows Fla. Execution

November 15, 2007
Filed at 10:25 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

JACKSONVILLE, Fla. (AP) -- A federal appeals court ruled that the execution of a child killer can proceed Thursday, leaving the case in the hands of the U.S. Supreme Court.

Many observers expect the high court to block the killing of Mark Dean Schwab, who is scheduled to die by lethal injection at 6 p.m.

The court is considering the appeals of two Kentucky inmates challenging the toxic three-drug combination administered there during lethal injection. Florida uses the same drugs and Schwab's attorneys claim the chemicals violate the Eighth Amendment ban on cruel and unusual punishment.

Florida Attorney General Bill McCollum expected the execution to proceed.

''At this time, there is nothing impeding the execution,'' said spokeswoman Sandi Copes.

The decision by the 11th Circuit Court of Appeals in Atlanta, which came a day after a federal court in Orlando blocked the execution, noted the Supreme Court had not yet ruled in the Kentucky case and that it didn't want to preempt its actions.

''We don't know how the Supreme Court is going to decide the issues on which it has granted review,'' the court wrote in an 11-page opinion. ''And the Supreme Court itself probably does not know given the fact that briefing has not been completed in that case.''

Schwab is scheduled to die for the murder of 11-year-old Junny Rios-Martinez.

In March 1991, the month Schwab was released from prison on a sexual assault sentence, a newspaper published a picture of Junny for winning a kite contest. Schwab gained the confidence of Junny's family, claiming he was with the newspaper and was writing an article on the boy.

On April 18, Schwab called Junny's school and pretended to be Junny's father and asked that the boy meet him after school. Two days later, Schwab called his aunt in Ohio and claimed that someone named Donald had made him kidnap and rape the boy.

He was later arrested and told police where he left Junny's body -- in a footlocker in a rural part of Brevard County.

If Schwab's execution goes forward, it would be the first in the state since the botched execution of Angel Diaz on Dec. 13. It took 34 minutes for Diaz to die -- twice as long as normal -- because the guards pushed the needles through his veins.

    Appeals Court Allows Fla. Execution, NYT, 15.11.2007, http://www.nytimes.com/aponline/us/AP-Florida-Execution.html?hp

In hours before last execution, a frenzied legal fight


14 November 2007
USA Today
By Kevin Johnson

Michael Wayne Richard was dressed for his execution in Texas' death house on Sept. 25 when the U.S. Supreme Court announced at 7:30 p.m. that it wouldn't postpone the convicted killer's lethal injection.

"I'd like for my family to take care of each other," Richard, wearing a white smock, matching pants and slippers, called out. "Let's ride. I guess this is it."

By 8:23 p.m., Richard, 48, was dead. He was the 42nd person executed in the USA this year and the 26th in Texas, the leading death penalty state.

Richard's case stands out. His execution for the rape and murder of a nurse in 1986 has become the latest flash point in the national debate over whether the death penalty is applied fairly. It followed a frenzied, behind-the-scenes legal fight that led to intense criticism of Texas' courts and confusion about the actions of the nation's highest court.

The U.S. Supreme Court, without comment, refused to intervene in Richard's execution — even though, hours earlier, the court had said it would use a Kentucky case to review questions about lethal injection.

The court's decision to take that case has effectively put executions on hold across the USA. Since allowing Richard's execution, justices have stopped the three next scheduled, including one in Texas. On Wednesday, a federal court in Florida joined 11 other state and federal courts in delaying a lethal injection. The postponements mean that Richard's execution is likely to be the last until the high court rules in the Kentucky case next year.

The legal chaos that played out in the hours before Richard's execution emerges in interviews with defense lawyers and state officials, along with court and prison documents.

As defense attorneys raced to finish last-minute appeals, they were derailed by maddening breakdowns of their computer system. Then, with the execution scheduled for 6 p.m., the state's highest criminal court decided not to extend its office hours past 5 p.m. — blocking Richard's attorneys from asking the state court to delay the execution until the U.S. Supreme Court ruled in the Kentucky case.

Just before Richard's scheduled execution time, defense attorney Greg Wiercioch says, the Texas attorney general's office gave him an ultimatum: The state would give Richard's lawyers six minutes to file a final appeal to the U.S. Supreme Court, or it would move forward with the lethal injection. The lawyers, still struggling with computer problems, barely met the attorney general's deadline to appeal to the Supreme Court.

Jerry Strickland, spokesman for Texas Attorney General Greg Abbott, acknowledges the office "urged (Richard's attorneys) to file any remaining appeals as quickly as possible," but says that did not amount to a threat. Strickland says the state did delay the execution until it received word that the U.S. Supreme Court was not stepping in.

That concession did little to appease critics. For the first time in its 49-year history, the National Association of Criminal Defense Lawyers has filed a complaint against a sitting judge, calling the execution-night closure of the Texas Court of Criminal Appeals a "shocking breakdown" of the justice system.

Carmen Hernandez, president of the National Association of Criminal Defense Lawyers, says the group has asked Texas' State Commission on Judicial Conduct to review the actions of Judge Sharon Keller, the court's chief judge who authorized the closure. Keller declined to comment.

Last month, in an apparent concession to the criticism, the Court of Criminal Appeals said it would begin accepting electronic filings in death penalty cases and other emergency appeals.

Lee Coffee, who first prosecuted Richard more than two decades ago in Houston for the slaying of nurse Marguerite Dixon, concedes the legal process could have worked better at the end. However, Coffee says, any discomfort Richard might have felt before or during the execution is small compared with that suffered by Dixon's family.

"It's only a shame that the family of the victim has been tortured for more than 20 years," says Coffee, referring to Richard's lengthy stay on death row. "This case should have reached a conclusion some time ago."

The retardation argument

Even in death, Michael Richard will never be a particularly sympathetic figure.

Two months after his parole for convictions on auto theft and forgery charges, Richard attacked Dixon inside her home in a Houston suburb, sexually assaulted her, shot her in the head, took two TVs and fled in the Dixon family's van, according to Texas prison records.

Whether Richard deserved to die for the 1986 attack wasn't part of the argument his attorneys made in their last request to the Supreme Court to delay the execution. Instead, the attorneys argued that because the Supreme Court had announced that day that it would review the entire lethal-injection process, it simply was not Richard's time to die.

For two months before the execution, Wiercioch, David Dow and other death penalty lawyers with the Texas Defender Service in Houston pursued appeals based on claims that Richard, a former mechanic, was mentally retarded.

His IQ once was measured at 64; a score of 70 or below generally indicates retardation, Wiercioch says. (In 2002, the Supreme Court ruled that executing mentally retarded offenders violated the Eighth Amendment's ban on cruel and unusual punishment.)

On the morning of Sept. 25, Richard's attorneys had filed what they thought would be their final appeal to the Supreme Court on the retardation issue. At 9 a.m. Texas time, the Supreme Court announced it had accepted the Kentucky case, which tests the standard for deciding whether the mix of three drugs used in lethal injections carries a risk of suffering. Most states, including Texas, have adopted the same mix of drugs: sodium thiopental, an anesthetic; pancuronium bromide, a muscle relaxant given in high dosage to cause paralysis; and potassium chloride, which stops the heart.

Dow learned of the Supreme Court's decision to review lethal injection at 10:15 a.m., after teaching a law class at the University of Houston.

By 11:40 a.m., he was on a conference call with six Texas Defender Service lawyers in Houston and Austin to devise a new appeal to the Texas Court of Criminal Appeals. If rejected, they would ask the U.S. Supreme Court to halt the execution until the justices ruled on the lethal-injection issue.

Word of the Supreme Court's action in the Kentucky case spread quickly to Texas' death row in Livingston. Near dawn that morning, Richard had packed all of his belongings — 24 packages of instant soup mixes, beef jerky, crackers, a soap dish, radio and a collection of correspondence — into five onion sacks. The bags were tagged for delivery to his family after death.

The new path for appeal offered fresh hope for Richard and his family. "He thought he was gonna get a stay," says Patricia Miller, Richard's sister. "That's all people were talking about."

Wiercioch says the defense team had not pursued an earlier challenge to lethal injection for two reasons: Attorneys believed the arguments for mental retardation were stronger, and past challenges to the execution procedure had failed.

"In Texas, (challenging lethal injection) was a dead dog," Wiercioch says.

The defense team's plans began to unravel about 3:15 p.m., when its computer system crashed at the Houston office of the Texas Defender Service, a privately funded group that specializes in death cases. The system crashed as attorneys were drafting the appeals.

The crash cut off electronic contact between Houston and the Texas Defender Service's office in Austin, where paralegals and attorneys were standing by to print the required 10 copies of the documents for delivery to the Texas appeals court before its 5 p.m. closing.

Efforts to repair the computer system failed. By 4:30 p.m., Dow says, the defense team in Austin began alerting the clerk at the state Court of Criminal Appeals about the problem, and the likelihood that Richard's appeal would be late.

Louise Pearson, the court clerk, did not respond to USA TODAY's request for comment.

Defense attorneys say at least four pleas for more time to file Richard's appeal were denied — the last at about 4:48 p.m., after attorneys had regained some computer functions. Dow says his team asked the court about filing the appeal electronically. The request was rejected, he says.

"Everybody in the office was outraged," Dow says.

Less than a half-hour before the scheduled 6 p.m. execution — as the defense team turned to its last option, the Supreme Court — the computer problems flared again.

The lethal-injection appeal took on added importance about 5:30 p.m., when the high court rejected the defense's mental retardation appeal. Dow says the last-ditch lethal injection appeal to the Supreme Court may have been undermined because the Texas court had never ruled on the issue, leaving no record for the Supreme Court to consider.

As defense attorneys raced to overcome technical problems, Wiercioch says he received an unusual telephone call from Texas Assistant Attorney General Baxter Morgan minutes before the 6 p.m. deadline.

Wiercioch says the attorney general's office was aware of the problems plaguing the defense team. He says Morgan called to say that the state still planned to proceed with the execution.

"I said, 'Whoa! Whoa!,' " Wiercioch recalls, adding that he pleaded for more time.

Morgan's response, says Wiercioch: "You've got six minutes."

"It was a stunning conversation," the defense lawyer says. "It was like I was talking to a robot."

Strickland, the spokesman for the attorney general's office, says that "the Texas Defender Service and Greg Wiercioch's recollection and characterization of the conversation are not accurate."

Strickland does not specifically dispute that Morgan referred to a six-minute deadline. He says Morgan's words were mischaracterized as an ultimatum.

"Richard's counsel knew full well that the execution warrant … would be effective as of 6 p.m.," Strickland says.

Even so, Strickland says that immediately after the conversation, the attorney general's office directed prison authorities to suspend the execution until the U.S. Supreme Court weighed in.

'The integrity of the process'

The 29 witnesses for the execution were gathered in holding rooms near the death chamber when the Supreme Court received Richard's new appeal.

As 6 p.m. passed and the delay lengthened, Miller — one of three Richard supporters designated to view the execution — says a prison worker suggested that the passing time might be "a good sign."

But about 8:10 p.m. — 40 minutes after the Supreme Court declined to intervene — the witnesses were ushered into the viewing rooms. Miller says she saw her brother strapped to the gurney.

"We could hear him," Miller says, referring to Richard's brief final statement. "He closed his eyes. We heard him take his final breath."

Nothing in Miller's description indicates Richard showed any signs of pain, a key issue before the Supreme Court in the Kentucky case. Richard's execution, if indeed painless, was eerily similar to how Richard predicted it might go more than two decades ago in a conversation with Coffee, now a judge in Tennessee.

Coffee says the conversation began when the former prosecutor offered Richard a life sentence in exchange for a guilty plea. Coffee says the Dixon family signed off on the offer to avoid the stress of a public trial. Coffee says Richard "coldly" rejected the deal.

"He told me the death penalty would be the last ultimate high," Coffee says. "He said the state of Texas would give him a bunch of drugs, and he would go to sleep."

Twenty years later, Coffee rejects the notion that Richard's words amounted to an empty boast or were clouded by mental deficiency. "You don't see many people that cold, that callous. He had no fear."

Hernandez, president of the national defense lawyers group, says the gruesome facts of the case and Richard's offensive conduct shouldn't be the issue.

"It's about the integrity of the process," Hernandez says. "The test of whether the system is fair is how it runs in a difficult case, when there are no mitigating factors and the defendant is not particularly sympathetic.

"In a death penalty case, there is irretrievable finality. You ought not to close the courtroom doors, especially on a day of an execution."

    In hours before last execution, a frenzied legal fight, UT, 14.11.2007, http://www.usatoday.com/news/nation/2007-11-14-lethal-injection_N.htm

Texas Inmate Spared Hours Before Death

November 12, 2007
Filed at 7:30 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

BEEVILLE, Texas (AP) -- Kenneth Foster, the only condemned Texas inmate to win a commutation from Gov. Rick Perry without the prodding of a court, believes other miracles may be headed his way.

''I don't feel I've come this far to stop here,'' Foster said from the Texas Department of Criminal Justice McConnell Unit, about 100 miles south of San Antonio. ''I think something more is going to happen... I don't know where it's going to come from, but I do believe it's going to happen.''

The 31-year-old Foster's new sentence, along with the time he's already been imprisoned, mean he won't be eligible for parole until 2036.

But at least he's alive.

He was in his cell on death row, expecting the parole board to answer his plea for mercy two days before his Aug. 30 scheduled execution for being present at a fatal shooting in San Antonio. Foster claimed he was in the car when a robbery turned deadly and had no idea his companions intended to kill anyone.

His death sentence brought protests -- and ultimately the state's decision to spare him -- because he was condemned under the state's law of parties, in which anyone involved in a crime is held equally responsible regardless of his or her role.

When his execution was to be held in 24 hours, prison officials and a squad of guards showed up outside his death row cell.

''They asked me to come out,'' he recalled. ''I didn't know what was going on. As I was coming out, it was like a frenzy out there.

''I laid down on the ground. I told them I'm not going anywhere until you tell me where we're going. I was supposed to have my last visits the next day.''

Concerned about protests, prison officials altered their usual schedule and planned to take him early to the death chamber in Huntsville, 45 miles away. He'd get his final visits with relatives there, they told him.

''I was pretty upset,'' Foster said. ''I couldn't say I trusted their word. I was calling them terrorists. They were terrorizing me.''

He was driven to the Huntsville Unit in a four-vehicle caravan.

''It's real dark,'' he said of the holding cell just outside the death chamber. ''It's like a catacomb. It's like a dungeon, almost medieval-like.''

The morning of his scheduled execution, he was permitted a visit with his Dutch wife and an attorney.

His father unexpectedly walked in just before noon.

''He goes: '6-1.' He was ecstatic, crying,'' Foster said. That was the parole board vote for commutation.

It ''might be your lucky day,'' a prison official said.

Then the warden walked up, a cell phone in his ear, and told Foster his sentence was being commuted.

''I said: 'Right now?' He said: 'Right now.'

''I dropped and said a prayer,'' Foster said. ''I was thinking about giving thanks.''

He was whisked back to death row, where people offered congratulations.

''They got me out of there quick,'' he said. ''And I was happy to go, too.''

Foster and a companion, Mauriceo Brown, were tried for the Aug. 15, 1996, shooting of Michael LaHood on the driveway of LaHood's home in San Antonio. Foster insisted he was 80 feet away in a car, had no idea Brown was going to kill LaHood and didn't participate in the shooting.

A Bexar County jury convicted Foster and Brown of capital murder and sentenced both to death. Brown was executed last year.

Perry, a staunch capital punishment supporter, said the commutation was the ''right and just decision'' in this case. He said he was troubled that the men had been tried together.

More than 17,000 messages of support for Foster were sent to the governor and the parole board.

''How can 17,285 people be stupid?'' Foster asked. ''How could all those people be wrong?''

Twelve messages called for his execution, and LaHood's relatives accused Perry of bowing to political pressure.

He said he planned to write Perry and the parole board thank-you letters but his typewriter broke.

''I appreciate it,'' Foster said of Perry's decision. ''He did a good thing.''

Life is dramatically different. On death row, inmates are in near total isolation, even spending their daily hour of recreation by themselves. Meals are served in the cells.

Now he gets some meals in a prison day room.

''Even the food is better,'' he said, reveling over the butter on his breakfast tray. ''I hadn't seen butter for years.''

Despite the publicity over his case, he said only a few inmates and officers were aware of his past.

''I'm not so talkative,'' he said. ''It's a positive thing because I like to stay out of the mix of things.''

But when asked about his history, he'll volunteer: ''I just got off death row.''

''That's kind of a conversation starter,'' he laughed.

    Texas Inmate Spared Hours Before Death, NYT, 12.11.2007, http://www.nytimes.com/aponline/us/AP-Spared-From-Death.html

Obama Cites Death Penalty Reforms

November 12, 2007
Filed at 3:14 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

SPRINGFIELD, Ill. (AP) -- Barack Obama can honestly claim to have made a difference on a matter of life and death.

While an Illinois state senator, Obama was key in getting the state's notorious death penalty laws changed, including a requirement that in most cases police interrogations involving capital crimes must be recorded.

The changes enacted in 2003 reformed a system that had sent 13 people to death row, only to have them released because they were later determine to be innocent or had been convicted using improper methods.

''Without Barack's energy, imagination and commitment I do not believe the very substantial and meaningful reforms that became law in Illinois would have taken place,'' said author Scott Turow, a member of the state commission that recommended many of the changes.

Obama often cites his role in Illinois death penalty debate as evidence that he can resolve thorny issues through compromise.

''We brought police officers and civil rights advocates together to reform a death penalty system that had sent 13 innocent men to death row,'' he declare in a recent presidential debate.

Enactment of the 2003 law was a huge political achievement in a state that had been deeply divided over problems with capital punishment.

Obama was at the center of the emotional debate.

Legislators and lobbyists who worked with him describe a lawmaker who was personally involved, refused to abandon some needed changes but also demanded compromises from both law enforcement and death penalty critics.

A proposal to require that police record interrogations of murder suspects was opposed by police, prosecutors and the Democratic governor and considered so touchy it was separated from other legislation. It also was the issue that garnered Obama's special interest.

''I thought the prosecutors and law enforcement would kill it,'' said Peter Baroni, who was then a Republican aide to the Illinois Senate's judiciary committee. ''He (Obama) was the one who kept people at the table.''

In the end, police organizations supported the recording mandate, and the measure passed the Senate unanimously.

Illinois' death penalty was an emotional issue in 2003. The courts had released 13 people from death row because evidence had turned up proving their innocence or that their convictions had been tainted.

The previous governor, Republican George Ryan, had halted all executions and commuted the sentences of everyone awaiting execution, giving most of them life in prison.

The families of many murder victims felt betrayed. Police and prosecutors felt their every move was being criticized. Death penalty foes were jubilant but also divided over whether to push for an outright ban.

Lawmakers were looking for way to solve the problems in the law, but also worried being labeled ''soft on crime.''

For Obama, a student of constitutional law, it was an issue he relished to tackle -- and also one of keen importance to the black voters he would need if he ran for the U.S. Senate in 2004.

The idea that people might be executed for crimes they did not commit also enraged him. ''At minimum, we should agree that innocent people should not be put to death by the state. At minimum,'' Obama declared icily during one floor debate.

Obama saw the issue of police interrogations as key.

Among the men released from death row ''a consistent pattern was the faulty confession,'' argued Obama. ''It struck me that this was the hardest piece of the puzzle but the one that would ultimately make the most difference and have the most long-lasting effect.''

Participants in the negotiations describe Obama as standing firm on some issues, but willing to compromise on others.

They cite his refusal to narrow the law so that only a suspect's confession had to be recorded, insisting that the entire interrogation be put on tape, so a suspect cannot be threatened or beaten off camera.

''That was a first point at which he could have taken the easy route. He said no, we're not doing it that way,'' recalled Kathryn Saltmarsh, who represented the Illinois Appellate Defender's office in the negotiations.

On other things he was willing to compromise.

He went along with allowing departments to make audio recordings if they couldn't afford video equipment and training, and for a judge to allow an unrecorded statement in some cases -- but then prosecutors would have to prove it had been obtained without coercion.

These exceptions were critical to winning the support of law enforcement, said Laimutis ''Limey'' Nargelenas, who represented the Illinois Association of Chiefs of Police in the discussions.

Obama ''could have rammed (the legislation) through, but he was willing to work with us,'' recalls Nargelenas.

''He is just really a good legislator,'' says State Sen. John Cullerton, D-Chicago, who oversaw the broad package of reforms including raising standards for death sentences and making it easier for judges to overturn unfair sentences.

''I don't know if that will get you many votes for president, but he was an excellent negotiator.''

    Obama Cites Death Penalty Reforms, NYT, 12.11.2007, http://www.nytimes.com/aponline/us/AP-Obama-Death-Penalty.html

N.J. to Vote on Abolishing Death Penalty

November 9, 2007
Filed at 3:45 p.m. ET
By THE ASSOCIATED PRESS
The New York Times

TRENTON, N.J. (AP) -- Lawmakers in New Jersey, which hasn't executed anyone in 44 years, will decide within two months whether to wipe the death penalty off the books, legislative leaders said Friday.

If approved by the Legislature and Gov. Jon S. Corzine, a death penalty opponent, the move would make New Jersey the first state to abolish capital punishment since the Supreme Court reinstated it in 1976.

''The time has come,'' Assembly Speaker Joseph Roberts Jr. said after a breakfast meeting in his office with Sister Helen Prejean, the Roman Catholic nun who wrote ''Dead Man Walking.''

''This is such a special moment,'' said Prejean, whose book about serving as a spiritual adviser to death row inmates was made into an Oscar-winning movie starring Susan Sarandon and Sean Penn. ''New Jersey is going to be a beacon on the hill.''

The Assembly will vote Dec. 13 on whether to reduce the state's most severe punishment to life in prison without parole, Roberts said. Jennifer Sciortino, a spokeswoman for Senate President Richard J. Codey, said he expects taking similar action before the legislative session ends Jan. 8, though a vote hasn't been set.

Corzine spokeswoman Lilo Stainton said the governor looks forward to working with the Legislature to abolish the death penalty.

Roberts, a Democrat like Corzine and Codey, called the death penalty ''flawed public policy'' that is costly, discriminatory, immoral and cruel.

''The consequences are irreparable if mistakes are made,'' he said.

A Senate committee approved abolishing the death penalty in May, but the Senate didn't give the bill further consideration. The bill stems from a January report by a special state commission that found the death penalty was a more expensive sentence than life in prison and didn't deter murder.

The proposal hasn't sat well with relatives of the victims of those on death row.

Sharon Hazard-Johnson, whose parents were killed in their Pleasantville home in 2001 by Brian Wakefield, said lawmakers should focus on streamlining the state's death penalty law. She challenged them to put the question to voters.

''The majority would say that they are for the death penalty when it fits the crime,'' Hazard-Johnson said.

New Jersey reinstated the death penalty in 1982 but hasn't executed anyone since 1963. The Legislature imposed an execution moratorium in December 2005 when it formed the commission that studied the death penalty.

''The New Jersey death penalty has become a paper deterrent, the epitome of false security,'' Roberts said.

The state has eight men on death row.

Republicans, the state's minority party, vowed to fight the proposal, recalling the May arrests of five men charged with planning to mount a terrorist attack against Fort Dix.

''We live in dangerous times,'' said Sen. Gerald Cardinale. ''While there are problems with the way the death penalty is administered in New Jersey, abolishing it is not the solution.''

    N.J. to Vote on Abolishing Death Penalty, NYT, 9.11.2007, http://www.nytimes.com/aponline/us/AP-Death-Penalty-New-Jersey.html

Court to Hear Idaho Death Case

November 5, 2007
Filed at 11:20 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

WASHINGTON (AP) -- The Supreme Court stepped into a death penalty case Monday in which a defendant says his lawyers gave him bad advice by telling him to reject a plea deal that would have spared him a death sentence.

Maxwell Alton Hoffman was convicted in connection with a revenge killing in Idaho and sentenced to death in 1989. He appealed, claiming he should be allowed to take the deal prosecutors offered anyway.

The 9th U.S. Circuit Court of Appeals agreed. The San Francisco-based appeals court said the state must either release Hoffman or again offer him a plea deal that he originally turned down -- allowing him to plead guilty in exchange for prosecutors no longer seeking the death penalty.

The state appealed to the Supreme Court. The justices said they would decide whether Hoffman is entitled to the plea deal, even though he was later convicted and sentenced in a fair trial.

Hoffman was one of three men charged with the murder of a woman who served as a police informant in a drug deal. Hoffman slit Denise Williams' throat and another man stabbed her. Both men tried to bury her beneath rocks, eventually killing her with a blow from a rock.

The other two defendants avoided the death penalty. Hoffman, however, refused to plead guilty on the advice of his attorneys, even though prosecutors told him that if he refused the plea deal they would seek the death penalty.

One of Hoffman's attorneys -- William Wellman -- told Hoffman he believed that a recent appellate court ruling out of Arizona showed that Idaho's similar death penalty scheme was unconstitutional, and that it was only a matter of time before Idaho's death penalty scheme would be overturned in court.

But Idaho's death penalty scheme wasn't immediately overturned, and on June 9, 1989, Hoffman was sentenced to death.

The appeals court said Wellman made two mistakes that warranted overturning the death sentence.

''We do not expect counsel to be prescient about the direction the law will take,'' Judge Harry Pregerson wrote for the three-judge panel. ''We nonetheless find that Wellman's representation of Hoffman during the plea bargaining stage was deficient for two reasons: first, Wellman based his advice on incomplete research, and second, Wellman recommended that his client risk much in exchange for very little.''

That error, combined with Hoffman's compliant personality, meant that he was harmed by the attorney's recommendation, the court found.

Idaho's lawyers told the Supreme Court that the 9th Circuit made it too easy for defendants to prove that their lawyers were ineffective. The decision shouldn't turn on whether the advice was right or wrong, but on whether a competent lawyer would have made the same recommendation, the state said.

The case, which will be argued early next year, is Arave v. Hoffman, 07-110.

(This version CORRECTS ADDS 5 grafs at end. SUBS 5th graf to correct that victim was a woman, add details of killing.)

    Court to Hear Idaho Death Case, NYT, 5.11.2007, http://www.nytimes.com/aponline/us/AP-Scotus-Rejected-Plea.html

Jury: Man Should Die

for Sheriff's Death

November 2, 2007
Filed at 3:58 a.m. ET
By THE ASSOCIATED PRESS
The New York Times

EUREKA, Kan. (AP) -- A jury recommended the death penalty for a man convicted of fatally shooting a sheriff who was serving an arrest warrant.

Jurors deliberated for only two hours Thursday before finding aggravating circumstances justifying the death penalty for Scott Cheever. He was convicted Tuesday of capital murder in the 2005 death of Greenwood County Sheriff Matt Samuels.

Cheever, 26, admitted killing Samuels, but testified he was high on methamphetamine at the time. His public defender, Tim Frieden, argued that his client's actions weren't premeditated.

Samuels was shot Jan. 19, 2005, while serving arrest warrants on Cheever for allegedly stealing firearms from his stepfather and not reporting to his parole officer.

Neither Cheever nor Samuels' family showed emotion when the verdict was read. Earlier, Cheever apologized to the family, saying ''I'd do anything to take it back.''

A judge must approve the punishment at sentencing set for Jan. 23.

Cheever would be the 11th person sentenced to die under the state's 1994 capital punishment law, according to the attorney general's office.

Jury: Man Should Die for Sheriff's Death, NYT, 2.11.2007, http://www.nytimes.com/aponline/us/AP-Sheriff-Killed.html