History
> 2015 > USA > Justice > Death Penalty (I)
Glenn Ford,
at his home in New Orleans
shortly after being freed from
death row in 2014.
Photograph:
Henrietta Wildsmith/The Shreveport Times, via
Associated Press
Glenn Ford, Spared Death Row, Dies at 65
NYT
JULY 2, 2015,
http://www.nytimes.com/2015/07/03/us/glenn-ford-spared-death-row-dies-at-65.html
Georgia Executes
Woman on Death Row
Despite Clemency Bid
and Pope’s Plea
SEPT. 29, 2015
The New York Times
By ALAN BLINDER
ATLANTA — Georgia executed the only woman on its death row on
Wednesday, hours after the State Board of Pardons and Paroles rejected her final
plea for clemency and nearly seven months after her execution was postponed
because a lethal injection drug had become “cloudy.”
A Georgia Department of Corrections spokeswoman said the inmate, Kelly Renee
Gissendaner, who was convicted of orchestrating her husband’s 1997 murder, died
at a state prison in Jackson, southeast of Atlanta, at 12:21 a.m.
Ms. Gissendaner, 47, was the fifth woman to be executed in the nation in the
past decade, according to the Death Penalty Information Center.
Two more executions are scheduled this week, including Richard Glossip, an
Oklahoma prisoner. He is among the inmates who this year lost a United States
Supreme Court case that challenged the use of a particular sedative, midazolam,
in executions.
In Georgia, Ms. Gissendaner was put to death after the federal courts refused to
intercede and the state panel turned down an application for clemency that drew
the support of Pope Francis. Visiting the United States last week, Francis had
urged Congress to abolish the death penalty.
Ms. Gissendaner’s guilt in the death of her husband, Douglas, was uncontested,
but her lawyers cited her “sincere remorse and acceptance of responsibility” in
a filing this month. Her supporters argued that her “good works in prison”
justified a commutation of her sentence to life imprisonment.
State officials and some members of Mr. Gissendaner’s family said that her death
sentence was appropriate.
“She had no mercy, gave him no rights, no choices, nor the opportunity to live
his life,” Mr. Gissendaner’s family said in a statement released by the district
attorney’s office in Gwinnett County, where the murder took place. “His life was
not hers to take.”
Ms. Gissendaner’s lawyers also argued that her sentence was inappropriately
severe because Georgia had not executed a “non-trigger person” since the death
penalty was reinstated in 1976.
The man who carried out the murder, Gregory Owen, Ms. Gissendaner’s boyfriend,
was sentenced to life imprisonment in a plea agreement. Ms. Gissendaner, who
rejected an offer to plead guilty in exchange for a sentence of life
imprisonment with the eventual possibility of parole, was convicted in 1998.
Ms. Gissendaner later achieved some renown for her spiritual development during
her incarceration, and the pope tried to intervene on Tuesday.
“While not wishing to minimize the gravity of the crime for which Ms.
Gissendaner has been convicted, and while sympathizing with the victims, I
nonetheless implore you, in consideration of the reasons that have been
presented to your board, to commute the sentence to one that would better
express both justice and mercy,” Archbishop Carlo Maria Viganò, the Vatican’s
ambassador to the United States, wrote in a letter on Francis’ behalf.
Popes have sometimes asked the American authorities to stop executions, as Pope
John Paul II did in 2001 when he wrote to President George W. Bush on behalf of
Timothy McVeigh, who bombed a federal building in Oklahoma City.
Ms. Gissendaner’s legal argument had recently focused on whether her postponed
execution in March amounted to a violation of the Constitution, which prohibits
cruel and unusual punishment.
Then, Georgia’s corrections commissioner canceled Ms. Gissendaner’s execution
because of concerns about the state’s supply of pentobarbital.
Georgia officials suspended executions amid a review of the state’s procedures,
and they later said that the pentobarbital had not been contaminated. Instead,
they said it had precipitated, most likely because the drug was “shipped and
stored at a temperature which was too low.”
After the postponement, Ms. Gissendaner’s lawyers argued that bumbling state
officials had essentially forced Ms. Gissendaner to face “hours of
unconstitutional torment and uncertainty — to which she had not been sentenced —
while defendants dithered about whether they could execute her.”
That argument failed in several federal courts, including the United States
Supreme Court, which rejected Ms. Gissendaner’s final appeal late Tuesday.
A version of this article appears in print on September 30, 2015,
on page A12 of the New York edition with the headline: Last Door Closes in
Georgia for Woman on Death Row.
Georgia Executes Woman on Death Row
Despite Clemency Bid and Pope’s Plea,
NYT, SEPT. 29, 2015,
http://www.nytimes.com/2015/09/30/us/kelly-gissendaner-execution-georgia.html
The Law That Keeps
People on Death Row
Despite Flawed Trials
JULY 17, 2015
The New York Times
By EMILY BAZELON
One of the more curious rulings the Supreme Court handed down
last month, overshadowed by its landmark health care and same-sex-marriage
decisions, concerned a death-row inmate named Hector Ayala. In 1989, Ayala was
charged with participating in the execution-style murder of three men in an
auto-body shop in San Diego, an apparent result of a heroin deal gone bad.
During jury selection for the trial, prosecutors struck all seven of the
prospective jurors who were black or (like Ayala) Hispanic.
The Supreme Court has ruled that systematically excluding jurors on the sole
basis of race violates the Constitution, so Ayala’s lawyer protested. The judge
asked the prosecution for an explanation for the strikes in a private session
and deemed it legitimate — without letting the defense hear or challenge the
rationale. Ayala was convicted and sentenced to death.
On appeal, the California Supreme Court said the trial judge had erred but
deemed the error “harmless,” letting Ayala’s conviction and sentence stand. The
United States Court of Appeals for the Ninth Circuit disagreed, found that
Ayala’s trial was unfair and ordered the state to either retry or release him.
When the case reached the United States Supreme Court this year, it mostly
garnered attention for a short concurring opinion in which Justice Anthony M.
Kennedy denounced solitary confinement, the form of imprisonment Ayala has
endured for most of the past 25 years. But Kennedy joined the court’s four other
conservative justices in ruling against Ayala in June. The majority opinion
chided the Ninth Circuit for misunderstanding the role of a federal court. A
federal court, Justice Samuel A. Alito Jr. wrote, was merely supposed to stand
guard against “extreme” judicial malpractice by state courts — not “substitute
its own opinions for the determination made on the scene by the trial judge.”
But how, exactly, do you draw the line between the two? This is a fight that is
waged over and over again when federal judges try to grant relief to prisoners
convicted in state courts — which handle a vast majority of criminal cases —
under circumstances of questionable fairness. It’s also a fight that federal
judges increasingly lose in the Supreme Court — to the point that some of them
are now raising the alarm that the law is systematically failing to provide the
necessary safeguards against miscarriages of justice. Congress, they say, should
fix it.
This state of affairs is the product of a semi-obscure 1996 law called the
Antiterrorism and Effective Death Penalty Act. Passed with bipartisan support
and signed by President Bill Clinton in the wake of the Oklahoma City bombing,
the law was based in part on Newt Gingrich’s “Contract With America” and was
designed to limit appeals of death-penalty sentences brought via the “Great
Writ,” as it’s known, of habeas corpus. As a legal concept, habeas corpus dates
to medieval England. The Latin translates literally as “you have the body.” The
idea is that a prisoner has a right to petition a court to show that he or she
is being held illegally.
Habeas rights aren’t entirely unshakable; President Abraham Lincoln famously
suspended them during the Civil War, and whether or not a similar suspension was
warranted in terrorism cases after the Sept. 11 attacks was central to the
challenges brought by detainees held in Guantánamo Bay. But these are
exceptional circumstances; for more prosaic criminal proceedings, states provide
post-conviction processes for demonstrating procedural failings in a trial.
After that, a prisoner may bring a habeas petition to a federal court, which has
traditionally had the power to overturn a state conviction. “Habeas lies to
enforce the right of personal liberty,” Justice William Brennan wrote in 1963;
“when that right is denied and a person confined, the federal court has the
power to release him.”
Supporters of this approach point out that state judges, who often face
re-election bids, may feel more pressure to push habeas aside in the name of
being tough on crime than federal judges, whose lifetime appointments insulate
them from politics. State courts also have far higher caseloads, leaving them
with less time and fewer resources to spend on habeas petitions, which often
leads to summary denials.
Conservative critics, on the other hand, have generally bristled at this federal
oversight. They point out — as Republican congressional supporters of the
Antiterrorism and Effective Death Penalty Act did in the 1990s — that the
additional means of appeal the procedure provides can add years to the process.
Many states don’t provide free counsel for habeas petitions unless the death
penalty is involved (and sometimes not even then). That leaves courts to sort
through tens of thousands of filings written by prisoners representing
themselves every year.
The Antiterrorism and Effective Death Penalty Act changed the balance of state
and federal power over habeas petitions, by stipulating that a federal court may
step in only if the previous proceedings in state court “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established federal law” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.” But
over the past two decades, the Supreme Court’s unsparing interpretation of this
language has become an enormous source of frustration on the federal bench — to
the point that two influential judges on the Ninth Circuit bench, the liberal
Stephen Reinhardt and the more conservative Alex Kozinski, have each recently
called for its demise. They argue that the law, as interpreted by the court’s
conservative majority, trips up federal judges who try to undo unjust
convictions, rendering them powerless to address procedural unfairness — and, at
worst, preventing them from granting a potentially innocent person a new trial
or release, or even stopping his or her execution.
In a spring article in The Michigan Law Review, Reinhardt writes that the court
has fashioned “a twisted labyrinth of deliberately crafted legal obstacles that
make it as difficult for habeas petitioners to succeed in pursuing the writ as
it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio
and Mickey Mantle in succession.” The maze has expanded since Alito succeeded
Justice Sandra Day O’Connor in 2006, moving the court to the right on criminal
justice, among other issues. Over the course of the court’s 2007-13 terms,
Reinhardt found that the Supreme Court had ruled against prisoners in all but
two of the 28 habeas petitions it had considered.
Judge Kozinski, for his part, attacks the law in a preface to The Georgetown Law
Journal’s Annual Review of Criminal Procedure, which is remarkable in the
breadth of its criticism of the American criminal justice system. Kozinski, a
Reagan appointee, has voted to uphold many criminal penalties, including death
sentences. But viewing the law from the perspective of the federal bench, he
writes, “we now regularly have to stand by in impotent silence, even though it
may appear to us that an innocent person has been convicted.”
By way of example, Kozinski points to the Ninth Circuit’s 2006 review of the
conviction of Shirley Ree Smith, who was sentenced to 15 years to life after she
was found of guilty of shaking her 7-week-old grandson, Etzel Glass, to death in
1996. There was no evidence that Smith had previously mistreated Etzel in any
way. And while he had subdural bleeding in his brain, it was minimal, and only
one of the three symptoms classically associated with shaken-baby syndrome, a
diagnosis that has become increasingly controversial.
The California Supreme Court declined to review Smith’s case. When it reached
the Ninth Circuit, the three judges who reviewed her habeas petition said they
approached it “with a firm awareness of the very strict limits that the
Antiterrorism and Effective Death Penalty Act places” on federal courts. Still,
the Ninth Circuit judges looked at new medical evidence that called into doubt
the validity of Smith’s conviction, found that “there has very likely been a
miscarriage of justice in this case” and released her from prison, where she had
already spent 10 years. In 2011, the Supreme Court reversed the Ninth Circuit,
over a strong dissent from Justice Ruth Bader Ginsburg (joined by two other
justices), saying that the appeals court had run afoul of the law. The following
year, Gov. Jerry Brown commuted Smith’s sentence to time served.
The Antiterrorism and Effective Death Penalty Act is also at the heart of one of
the most disputed death-penalty cases of the last decade. Troy Davis was
convicted in Georgia of killing an off-duty police officer who came to the aid
of a homeless man in a Burger King parking lot. After the Georgia courts denied
Davis’s appeals, he went to the federal courts with a habeas petition,
describing new evidence of his innocence: Seven of the nine eyewitnesses who
testified against Davis at trial had recanted, and new witnesses implicated
someone else, whom the police ruled out as a suspect early in their
investigation. Procedural rules barred Davis from bringing this evidence on
appeal. The United States Court of Appeals for the 11th Circuit ruled that he
could not have a hearing for his new evidence in federal court, either.
In this case, the Supreme Court did step in and order such a hearing. “Imagine a
petitioner in Davis’s situation who possesses new evidence conclusively and
definitively proving, beyond any scintilla of doubt, that he is an innocent
man,” Justice John Paul Stevens wrote. But the decision prompted a dissent from
Justice Antonin Scalia, joined by Justice Clarence Thomas, that includes this
protest: “This court has never held that the Constitution forbids the execution
of a convicted defendant who has had a full and fair trial but is later able to
convince a habeas court that he is ‘actually’ innocent.”
As many commentators have pointed out, this statement is both true and stone
cold. “The proper question is, and always should have been, whether the detainee
has a constitutional right to be free,” Reinhardt writes of habeas corpus. But
19 years of Supreme Court decisions based on the Antiterrorism and Effective
Death Penalty Act have fundamentally narrowed the scope of habeas review, from a
fight over the merits of a claim of innocence or fairness to one over narrow
process issues: Has the state time limit for filing a habeas petition passed? Is
the petition barred by some other rule? This is what the federal courts now
spend their time parsing.
It is no surprise that the Supreme Court’s interpretation of the law has lowered
the rate of success for habeas petitions. But it has also failed at its stated
aim of reducing time-consuming appeals. According to a 2007 study by Nancy J.
King, Fred L. Cheeseman II and Brian J. Ostrom, the time courts spend processing
habeas cases has actually increased on average. “To the extent that [the law’s]
provisions were designed to streamline the overall processing of individual
cases, that result has not been achieved,” the authors concluded.
John H. Blume, a Cornell law professor who has been tracking the law’s effects
since its inception, once argued that it “has been less ‘bite’ than ‘hype.’” Now
he agrees with Reinhardt and Kozinski, he told me in an email, calling the
Supreme Court’s expansion of the law “agenda-driven judicial policy-making.”
This is a moment of increasing bipartisan interest in criminal justice reform,
including sustained attention from President Obama and regret from Bill Clinton
about mass incarceration. About the role the Antiterrorism and Effective Death
Penalty Act plays, Kozinski reaches a clear and dramatic conclusion. It “is a
cruel, unjust and unnecessary law that effectively removes federal judges as
safeguards against miscarriages of justice,” he writes. “It has resulted and
continues to result in much human suffering. It should be repealed.”
The Law That Keeps People on Death Row Despite Flawed Trials,
NYT, JULY 17, 2015,
http://www.nytimes.com/2015/07/17/magazine/
the-law-that-keeps-people-on-death-row-despite-flawed-trials.html
Is the Death Penalty Unconstitutional?
JULY 7, 2015
The New York Times
The Opinion Pages | Contributing Op-Ed Writer
CHICAGO — On the heels of major decisions about same-sex marriage
and health care, the Supreme Court closed the term that ended last week with one
more extremely contentious case, Glossip v. Gross, which was about the death
penalty. The narrow issue in the case was the legality of Oklahoma’s most recent
method of lethal injection, using a drug called midazolam. The court upheld that
execution method in a 5-to-4 ruling, concluding that the challengers had not
done enough to show that it was riskier than the alternatives. But the extensive
opinions in the case confronted fundamental questions about the place of the
death penalty in our constitutional system.
Marking the contentiousness of the issue, four justices announced their
competing opinions aloud in the courtroom. It is uncommon for more than one
justice to speak in a particular case. Four is almost unheard-of.
The separate opinions of Justices Antonin Scalia and Stephen G. Breyer, in
particular, are worthy of note, as they express starkly opposing views of the
death penalty’s place under our Constitution. Justice Breyer basically called
for the abolition of the death penalty, while Justice Scalia argued that the
Constitution itself protected the death penalty from judicial invalidation. But
both views are misguided; the best position lies in between them.
Let’s start with Justice Scalia, who argues that the Constitution explicitly
blesses the death penalty. The Fifth Amendment says that one cannot be “deprived
of life … without due process of law,” and that “capital, or otherwise infamous
crime” must proceed by grand jury. Justice Scalia contends that these provisions
insulate the death penalty from categorical challenge because it is “obvious”
that it “is impossible to hold unconstitutional that which the Constitution
explicitly contemplates.”
But this argument ignores the lesson of another constitutional amendment, the
Ninth, which is designed to stop precisely the sort of inference that Justice
Scalia is making here. The framers worried that codifying individual rights
could be dangerous, because identifying specific limits on government power may
imply that those are the only limits, with the government otherwise having a
free hand. When Congress decided to propose a Bill of Rights nonetheless, James
Madison included language to answer this objection — which ultimately became our
Ninth Amendment — that warns that no specific right should be taken to preclude
other possibly relevant rights.
Unfortunately, that is what Justice Scalia is doing. He considers the specific
right to due process before execution and infers from it that the death penalty
can never be a “cruel and unusual punishment,” which the Eighth Amendment
prohibits. To be clear, Justice Scalia is surely correct that the framers
assumed that the death penalty could be imposed without being cruel and unusual,
and their assumption may well turn out to be right. But that is an assumption
that has to be tested by interpreting the Eighth Amendment by its own lights.
Next let’s turn to Justice Breyer, who argues that it is “highly likely” that
the death penalty as a whole violates the Eighth Amendment, because it is
unreliable, arbitrary, slow and rare. This argument went well beyond the
specific challenge to the use of the midazolam that was the focus of the case.
Rather, Justice Breyer explained that he would stop trying “to patch up the
death penalty’s legal wounds one at a time” and likely bury the whole thing.
Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is
the first member of the current court to call for such a radical step.
We should not be too quick to embrace Justice Breyer’s thinking. If his
conclusion is something other than a personal moral intuition, it rests on
deeply contested claims about the accuracy, goals and costs of the death
penalty. And while Justice Breyer’s dissent advanced extensive evidence for his
claims, they are nonetheless claims that are hard for a judge, even a Supreme
Court justice, to resolve dispassionately. Moreover, even if those claims are
proved true, the more appropriate judicial course would be to invalidate the
problematic parts of the system, not the system as a whole.
If we reject the broad legal claims of both Justices Scalia and Breyer, what is
left? The court’s job is to continue resolving the fact-specific claims that a
given punishment is cruel and unusual, even if that means that the court must
only “patch up the death penalty’s legal wounds.” And the bigger question that
Justice Breyer would have us confront — whether our death penalty system is
necessary or oppressive — is best left to the states and the people.
William Baude, a contributing opinion writer, is an assistant professor of law
at the University of Chicago.
Is the Death Penalty Unconstitutional?,
NYT, JULY7, 2015,
http://www.nytimes.com/2015/07/07/opinion/is-the-death-penalty-unconstitutional.html
Glenn Ford,
Spared Death Row,
Dies at 65
JULY 2, 2015
The New York Times
By BRUCE WEBER
Glenn Ford, who spent nearly 30 years on death row in Louisiana
for a murder he almost certainly did not commit, died on Monday in New Orleans,
less than 16 months after his conviction and death sentence were vacated and he
was released. He was 65.
William Most, a lawyer for Mr. Ford, said the cause was lung cancer, a diagnosis
Mr. Ford received shortly after his release in March 2014. He died at a home
provided by Resurrection After Exoneration, a nonprofit group that assists freed
prisoners, Mr. Most said.
Mr. Ford walked out of the Louisiana State Penitentiary at Angola, one of the
nation’s toughest prisons, after spending 29 years, 3 months and 5 days behind
bars, nearly half his life, most of that time in solitary confinement for all
but an hour a day.
After years of failed appeals, Mr. Ford’s extraordinary release was precipitated
by “newly discovered and credible exculpatory evidence,” as prosecutors
described it. In 2013, it was provided by a confidential informant to Dale G.
Cox, then the first assistant district attorney and now the district attorney
for Caddo Parish, which includes Shreveport.
It was there, on Nov. 5, 1983, that Isadore Rozeman, a frail 58-year-old with
failing eyesight, was found shot to death in his small jewelry shop. Four men
were initially accused of the murder, as well as the theft of jewelry, but Mr.
Ford, who had done yardwork for Mr. Rozeman and was seen in the area of the shop
on the day of the crime, was the only one who stood trial.
He was convicted largely on the basis of testimony by a witness, the girlfriend
of one of the three other suspects, whose credibility was demonstrably
undermined during the trial — she admitted to lying — and on circumstantial
evidence. That evidence included a coroner’s claim that the fatal gunshot was
likely fired by a left-hander.
That conclusion came despite the absence of a murder weapon, which was never
found. And Mr. Ford was left-handed.
Also, Mr. Ford’s two court-appointed lawyers had scant experience in criminal
law, and neither had ever presented a case before a jury. Mr. Ford was black,
while the 12 jurors who convicted him and sentenced him to die — as well as the
judge and Mr. Rozeman — were white.
Mr. Ford, 34 when the crime took place, had had drug problems but had no history
of violence. He cooperated with the police investigation, acknowledging that he
had been given stolen merchandise from the store by the other accused men and
that he had pawned it, but denying that he was present when Mr. Rozeman was
robbed and shot.
“Any exoneration is remarkable, of course,” the legal analyst Andrew Cohen wrote
in The Atlantic on the eve of Mr. Ford’s release. “Any act of justice after
decades of injustice is laudable. It is never too late to put right a wrong. But
what also is striking about this case is how weak it always was, how frequently
Ford’s constitutional rights were denied, and yet how determined Louisiana’s
judges were over decades to defend an indefensible result.”
Mr. Ford was born in Shreveport on Oct. 22, 1949, and he had recently returned
there from Riverside, Calif., where he and two siblings were reared by their
mother’s mother. He went to school through the 11th grade and, Mr. Most said, at
some point earned a high school equivalency diploma. For a time he went to
cosmetology school.
He had returned to Shreveport, Mr. Most said, because he thought he needed a new
start. There he lived with his father, whom he barely knew, and earned money
doing odd jobs. For a time he worked at a sandwich shop.
He is survived by several children and more than 10 grandchildren, Mr. Most
said.
In an interview, Mr. Cox said that the new evidence came to him while he was
interviewing an informant regarding a different murder. To protect that source,
and because the Rozeman case has been reopened, Mr. Cox would not identify the
informant or disclose what he said. But the information he provided, Mr. Cox
said, had been investigated and deemed credible and pointed to two brothers,
Jake and Henry Robinson, who were among the original suspects. They are both in
jail for other violent crimes.
In March, A. M. Stroud III, lead prosecutor at trial, wrote a remorseful article
in The Shreveport Times, declaring, “Glenn Ford was an innocent man,” taking
responsibility for a rush to judgment and arguing for the abolition of the death
penalty.
“I apologize to Glenn Ford for all the misery I have caused him and his family,”
Mr. Stroud wrote. “I apologize to the family of Mr. Rozeman for giving them the
false hope of some closure. I apologize to the members of the jury for not
having all of the story that should have been disclosed to them. I apologize to
the court in not having been more diligent in my duty to ensure that proper
disclosures of any exculpatory evidence had been provided to the defense.”
He concluded: “I end with the hope that providence will have more mercy for me
than I showed Glenn Ford. But I am also sobered by the realization that I
certainly am not deserving of it.”
Mr. Stroud said that Mr. Ford deserved compensation from the state for his
wrongful conviction — he might have qualified for more than $300,000 under a
Louisiana statute — though others were not so sympathetic. A district court
judge, Katherine Dorroh, ruled that even though he was not the killer, he was
guilty of possession of stolen goods, accessory after the fact to armed robbery
and perhaps other crimes, and therefore not entitled to any payment.
And even though he was responsible for Mr. Ford’s release, Mr. Cox, who remains
an ardent supporter of the death penalty, agreed with the judge that Mr. Ford
“did not have clean hands in this matter.” In an interview, he was unwilling to
say Mr. Ford was not guilty. “There was no exoneration,” Mr. Cox said. “There
was new information that, had it been presented at trial, may have changed the
verdict. It may not.
“I don’t know whether Glenn Ford was the shooter or not. I have my doubts. But
that’s neither here nor there. I had to predict, in my mind, what 12 people
would have thought of this information 30 years ago.
“Since I couldn’t be sure, I had to err on the side of caution. If it were me,
I’d have changed my verdict, at least about the sentence.”
On the day he left Angola, Mr. Ford was asked what the conviction had cost him.
“Thirty years of my life, if not all of it,” he said. “I can’t go back and do
anything I should have been doing when I was 35, 38, 40, stuff like that.”
A version of this article appears in print on July 3, 2015, on page B14 of the
New York edition with the headline: Glenn Ford, Spared Death Row, Dies at 65.
Glenn Ford, Spared Death Row, Dies at 65,
NYT, JULY 2, 2015,
http://www.nytimes.com/2015/07/03/us/glenn-ford-spared-death-row-dies-at-65.html
A Divided Court on Three Big Rulings
JUNE 29, 2015
The New York Times
The Opinion Pages | Editorial
By THE EDITORIAL BOARD
Is the Death Penalty Constitutional?
An interesting thing happened on the way to Monday morning’s predictable Supreme
Court ruling upholding Oklahoma’s use of a controversial lethal-injection drug.
The 5-to-4 decision rejected a claim by three death-row inmates that use of the
sedative midazolam would put them at risk of severe pain. It also ruled
preposterously that in order to succeed the inmates had to show that there is an
alternative manner of execution that is significantly less painful but readily
available.
Justice Samuel Alito Jr., writing for the majority, and Justice Sonia Sotomayor,
writing the main dissent, battled bitterly over both of these issues.
But it was Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader
Ginsburg, that stood out above the usual noise: For 46 pages, a Supreme Court
justice made the case that the death penalty most likely violates the
Constitution.
In 1994, Justice Harry Blackmun announced that after a quarter century on the
court he had given up on capital punishment and would no longer “tinker with the
machinery of death.” It was a remarkable statement because the court has never
held that the death penalty is categorically unconstitutional.
On Monday, Justice Breyer revived the issue, “rather than try to patch up the
death penalty’s legal wounds one at a time.”
In a thorough, data-laden treatise, Justice Breyer explained why today’s death
penalty likely violates the Eighth Amendment’s ban on cruel and unusual
punishment. It is unreliable: More than 150 people sentenced to death since 1973
have been exonerated. It is arbitrary: Its application in any given case depends
on factors like race or geography. Decades-long delays negate its claimed
deterrent effect. And all but a very few jurisdictions have abandoned it.
All of these concerns, Justice Breyer wrote, are “quintessentially judicial
matters” that demand the court’s attention. And yet his engagement with this
important topic drew a one-word summation from Justice Antonin Scalia:
“gobbledygook.” He mocked Justice Breyer’s challenges as having been voiced for
years by death-penalty abolitionists. It did not seem to occur to Justice Scalia
that the same issues surface again and again because the problem lies with
capital punishment itself.
Redistricting by the People
The Supreme Court case challenging Arizona’s method of drawing election
districts could have been a big win for state lawmakers who regularly abuse
their power to stay in power. But the justices, by a 5-to-4 vote, handed the
victory to the people instead.
The ruling protected laws in Arizona, California, Hawaii and other states that
have delegated redistricting to independent commissions, and in the dozens of
other states where citizens, through constitutional amendments and ballot
measures, have claimed a greater say in how district maps are drawn and election
rules are written.
The case involved an electoral process so hopelessly corrupted by partisan
gerrymandering that Arizona’s voters approved a proposition to amend the
Constitution to remove redistricting authority from the Legislature and created
an independent five-member commission to draw congressional and state
legislative district lines. The lawmakers sued to get the mapmaking pen back.
The majority opinion, written by Justice Ginsburg, is plain and persuasive in
arguing that Arizona’s citizens acted properly to protect the integrity of their
elections. Under Arizona’s system, she wrote, “initiatives adopted by the voters
legislate for the state just as measures passed by the representative body do.”
Chief Justice John Roberts Jr., writing in dissent, sided with the legislators’
restrictive reading of the Constitution’s elections clause, which they read to
mean that only Congress or a state “legislature” can make a state’s election
laws.
In practice, in statehouses across the land, legislators and lobbyists, armed
with ever more sophisticated map-drawing programs, have created systems of
permanent incumbency and control. Had the court’s minority prevailed, the voice
of voters who have fought to end such practices would have been silenced.
Direct citizen democracy is not a substitute for elected representatives who do
their jobs. But the majority ruling is a timely reminder that rank partisan
gerrymandering is incompatible with democratic principles — and “that the people
themselves are the originating source of all the powers of government.”
Micromanaging the E.P.A.
The Environmental Protection Agency has a complicated job: It must make rules to
protect the nation’s air and waterways from toxic pollutants — like the mercury
emitted by coal-burning power plants — while weighing a wide range of factors,
including how harmful the pollutants are to human health and the environment,
and how much it would cost polluters to comply with the rules.
The agency considers those costs at many stages in the rule-making process, as
the Clean Air Act requires it to do. In the case of mercury and other harmful
pollutants, it determined that for a cost of about $10 billion in
well-established cleaner-coal technologies, the nation would enjoy benefits
valued at between $37 and $90 billion, including the prevention of as many as
11,000 premature deaths a year.
This is exactly the sort of complex, balanced determination that highly
experienced regulators are entrusted to make — and to which courts generally
defer.
But five justices ruled that the E.P.A. had failed to follow the law because it
did not consider the costs of its mercury rule at the start of the process.
Writing for the majority, Justice Scalia rejected the agency’s argument that it
considered costs at a later stage. The law requires regulations to be
“appropriate and necessary,” he wrote, so the agency cannot completely ignore
costs at the outset.
The problem, as Justice Elena Kagan explained in a sharp dissent, is that the
E.P.A. considered the costs connected to the emissions rule “over and over and
over again.” After finding that these harmful pollutants had to be regulated, it
set standards, considered how to make them as inexpensive as possible for
different types of plants, and did a thorough cost-benefit analysis. And yet the
majority opinion focused on only the initial decision to regulate, she wrote,
“with barely a glance at all the ways in which E.P.A. later took costs into
account.”
This “micromanagement” of rule making “runs counter to Congress’s allocation of
authority between the agency and the courts.”
The rule remains in place while it is reconsidered by a federal appeals court in
Washington that has already upheld it once. Meanwhile, there is no good argument
for the delinquent power plants to delay any longer.
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for the Opinion Today newsletter.
A version of this editorial appears in print on June 30, 2015, on page A22 of
the New York edition with the headline: A Divided Court on Three Big Rulings.
A Divided Court on Three Big Rulings,
NYT, JUNE 29, 2015,
http://www.nytimes.com/2015/06/30/opinion/a-divided-court-on-three-big-rulings.html
Supreme Court Allows
Use of Execution Drug
JUNE 29, 2015
The New York Times
By ADAM LIPTAK
WASHINGTON — The Supreme Court ruled on Monday against three
death row inmates who had sought to bar the use of an execution drug they said
risked causing excruciating pain.
In the process, two dissenting members of the court — Justices Stephen G. Breyer
and Ruth Bader Ginsburg — came very close to announcing that they were ready to
rule the death penalty unconstitutional. This gave rise to slashing debate with
Justices Antonin Scalia and Clarence Thomas about the reliability and
effectiveness of the punishment, a dispute that overshadowed the core issue in
the case.
The 5-to-4 decision on the execution drug broke along familiar lines, with
Justice Anthony M. Kennedy joining the court’s more conservative members to
allow its use.
Justice Samuel A. Alito Jr., writing for the majority, said the inmates had
failed to identify an available and preferable method of execution and failed to
make the case that the challenged drug entailed a substantial risk of severe
pain.
In dissent, Justice Sonia Sotomayor, who joined the other three members of the
court’s liberal wing, said, “The court’s available-alternative requirement leads
to patently absurd consequences.”
“Petitioners contend that Oklahoma’s current protocol is a barbarous method of
punishment — the chemical equivalent of being burned alive,” Justice Sotomayor
wrote. “But under the court’s new rule, it would not matter whether the state
intended to use midazolam, or instead to have petitioners drawn and quartered,
slowly tortured to death or actually burned at the stake.”
Justices Breyer, Ginsburg and Elena Kagan joined Justice Sotomayor’s dissent.
In a second, more sweeping dissent, Justice Breyer, joined by Justice Ginsburg,
said it was time to consider a larger issue.
“Rather than try to patch up the death penalty’s legal wounds one at a time,”
Justice Breyer wrote, “I would ask for full briefing on a more basic question:
whether the death penalty violates the Constitution.”
In a 46-page dissent that included charts and maps, he said that “it is highly
likely that the death penalty violates the Eighth Amendment,” which bars cruel
and unusual punishments. He said that there was evidence that innocent people
have been executed, that death row exonerations were frequent, that death
sentences were imposed arbitrarily and that the capital justice system was
warped by racial discrimination and politics.
Justice Breyer added that there was scant reason to think that
the death penalty deterred crime and that long delays between death sentences
and executions might themselves violate the Eighth Amendment. He noted that most
of the country did not use the death penalty and that the United States was an
international outlier in embracing it.
Justice Scalia responded to what he called “Justice Breyer’s plea for judicial
abolition of the death penalty” by calling it “gobbledygook.” The punishment is
contemplated by the Constitution, Justice Scalia said, and disingenuously
opposed on grounds created by its opponents.
Criticizing the death penalty on the ground that it is not carried out fast
enough, for instance, Justice Scalia said, “calls to mind the man sentenced to
death for killing his parents, who pleads for mercy on the ground that he is an
orphan.”
“We federal judges,” Justice Scalia continued, “live in a world apart from the
vast majority of Americans. After work, we retire to homes in placid suburbia or
to high-rise co-ops with guards at the door. We are not confronted with the
threat of violence that is ever present in many Americans’ everyday lives. The
suggestion that the incremental deterrent effect of capital punishment does not
seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness
to the needs of others. Let the people decide how much incremental deterrence is
appropriate.”
In a second concurrence, Justice Thomas described several cases in which the
Supreme Court had spared the lives of killers.
“Whatever one’s views on the permissibility or wisdom of the death penalty,”
Justice Thomas wrote, “I doubt anyone would disagree that each of these crimes
was egregious enough to merit the severest condemnation that society has to
offer. The only constitutional problem with the fact that these criminals were
spared that condemnation, while others were not, is that their amnesty came in
the form of unfounded claims. Arbitrariness has nothing to do with it.”
The challenge to the execution drug was brought by four condemned inmates in
Oklahoma, who said it did not reliably render the person unconscious and so
violated the Eighth Amendment. Lower courts disagreed.
Oklahoma and several other states started to use midazolam in executions after
manufacturers in Europe and the United States refused to sell them the
barbiturates that were traditionally used to produce unconsciousness.
Justice Alito suggested that condemned inmates should not benefit from the
shortages, saying that “anti-death-penalty advocates pressured pharmaceutical
companies to refuse to supply the drugs used to carry out death sentences.”
Chief Justice John G. Roberts Jr. and Justices Scalia, Kennedy and Thomas joined
the majority opinion.
In dissent, Justice Sotomayor said the shortages had produced real risks.
“The execution protocols states hurriedly devise as they scramble to locate new
and untested drugs,” she wrote, “are all the more likely to be cruel and unusual
— presumably, these drugs would have been the states’ first choice were they in
fact more effective.”
Lawyers for the Oklahoma inmates, with the support of experts in pharmacology
and anesthetics, said midazolam, even if properly administered, was unreliable.
They pointed to three executions last year that seemed to go awry.
In April 2014, Clayton D. Lockett regained consciousness during the execution
procedure, writhing and moaning after the intravenous line was improperly
placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to
gasp and choke for extended periods.
The Supreme Court last considered lethal injections in 2008, in Baze v. Rees,
when it held that what was then the standard three-drug combination, using the
barbiturate sodium thiopental as the first agent, did not violate the Eighth
Amendment.
The new case, Glossip v. Gross, No. 14-7955, originally included a fourth
inmate, Charles F. Warner. But he was executed on Jan. 15 after the Supreme
Court denied his request for a stay by a 5-to-4 vote.
A little more than a week later, the court agreed to hear the remaining inmates’
appeals, and a few days after that it stayed their executions.
They are Richard E. Glossip, who was convicted of arranging the beating death of
his employer; John M. Grant, who was convicted of stabbing a prison cafeteria
worker to death; and Benjamin R. Cole Sr., who was convicted of breaking his
9-month-old daughter’s spine, killing her.
“While most humans wish to die a painless death,” Justice Alito wrote for the
majority, “many do not have that good fortune. Holding that the Eighth Amendment
demands the elimination of essentially all risk of pain would effectively outlaw
the death penalty altogether.”
A version of this article appears in print on June 30, 2015, on page A1 of the
New York edition with the headline: Justices Approve Execution Drug in a 5-to-4
Vote.
Supreme Court Allows Use of Execution Drug,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/30/us/supreme-court-execution-drug.html
Nebraska Legislature,
in Bipartisan Vote,
Bans Death Penalty
MAY 20, 2015
The New York Times
By JULIE BOSMAN
The Nebraska Legislature on Wednesday voted, 32 to 15, to abolish
the death penalty, setting up a final showdown between a bipartisan coalition
that supported the bill and the Republican governor, who has promised to veto
it. No conservative state has banned the death penalty since North Dakota did so
in 1973.
If the bill is vetoed by Nebraska’s Republican governor, Pete Ricketts, a vote
to override his veto could come as soon as Tuesday. Thirty votes are required to
override.
The bill, which would replace lethal injection with life imprisonment, passed
the unicameral Legislature on Wednesday after months of debate and lobbying on
both sides, with conservative Republicans lining up in opposition to a group of
Democrats and moderate Republicans who said they have come to oppose the death
penalty for reasons that are moral, fiscal or religious.
Nebraska has not executed an inmate since 1997, leading some lawmakers to argue
that the state has ended the death penalty in practice.
In Nebraska, bills must be approved three times before reaching the governor’s
desk. During the second round of voting on the death penalty bill, it garnered
30 votes in favor. Supporters of the bill said it had gained momentum in the
last several days, adding two more votes in favor on Wednesday after a two-hour
debate.
Senator Ernie Chambers, a long-serving independent from Omaha who sponsored the
bill, has been pushing for a repeal to the death penalty for four decades.
“Nebraska will step into history,” if the Legislature overturns the death
penalty, Mr. Chambers told lawmakers on Wednesday.
Stacy Anderson, the executive director of Nebraskans for Alternatives to the
Death Penalty, said it was “an exciting day for Nebraska.”
“I really feel that given the reasoning that the senators gave on the floor, it
was so clear that they had studied the issue and really thought long and hard on
this, and decided in the end that this was the best thing for the state of
Nebraska,” she said. “There was clear, strong bipartisan support for it.”
But Republicans who believe the death penalty is an essential deterrent to
violent crimes said the fight was not over.
Senator Bill Kintner, a Republican who has strongly opposed the bill, said that
the vote was the work of a “liberal Legislature” that did not care about the
views of Nebraskans.
At a news conference on Wednesday, Governor Ricketts said it appeared to be “a
dark day for public safety,” calling the Legislature “completely out of touch
with the overwhelming number of people I talk to.”
In a statement before the vote, the governor urged lawmakers to reconsider
repeal, a move that would “give our state’s most heinous criminals more lenient
sentences.”
Taylor Gage, a spokesman for Mr. Ricketts, said the governor would veto the bill
as promised.
As part of his push against the bill, Mr. Ricketts announced last week that the
state had procured lethal injection drugs. The state paid nearly $55,000 for the
drugs, the Nebraska News Service reported on Wednesday.
A version of this article appears in print on May 21, 2015, on page A18 of the
New York edition with the headline: Nebraska Legislature, in Bipartisan Vote,
Bans Death Penalty.
Nebraska Legislature, in Bipartisan Vote, Bans Death Penalty,
NYT, MAY 20, 2015,
http://www.nytimes.com/2015/05/21/us/
nebraska-lawmakers-vote-to-abolish-death-penalty.html
152 Innocents, Marked for Death
APRIL 13, 2015
The New York Times
The Opinion Pages | Editorial
By THE EDITORIAL BOARD
However much Americans may disagree about the morality of capital
punishment, no one wants to see an innocent person executed.
And yet, far too often, people end up on death row after being convicted of
horrific crimes they did not commit. The lucky ones are exonerated while they
are still alive — a macabre club that has grown to include 152 members since
1973.
The rest remain locked up for life in closet-size cells. Some die there of
natural causes; in at least two documented cases, inmates who were almost
certainly innocent were put to death.
How many more innocent people have met the same fate, or are awaiting it? That
may never be known. But over the past 42 years, someone on death row has been
exonerated, on average, every three months. According to one study, at least 4
percent of all death-row inmates in the United States have been wrongfully
convicted. That is far more than often enough to conclude that the death penalty
— besides being cruel, immoral, and ineffective at reducing crime — is so
riddled with error that no civilized nation should tolerate its use.
Innocent people get convicted for many reasons, including bad lawyering,
mistaken identifications and false confessions made under duress. But as
advances in DNA analysis have accelerated the pace of exonerations, it has also
become clear that prosecutorial misconduct is at the heart of an alarming number
of these cases.
In the past year alone, nine people who had been sentenced to death were
released — and in all but one case, prosecutors’ wrongdoing played a key role.
The latest was Anthony Ray Hinton, who on Apr. 3 walked out of the Alabama
prison where he had spent almost 30 years, half his life, on death row. Mr.
Hinton was convicted of two murders largely on faulty evidence that the bullets
had come from his gun. His prosecutor at the time said he knew Mr. Hinton was
guilty and “evil” just by looking at him. And later prosecutors continued to
insist on his guilt even when expert testimony clearly refuted the case against
him.
Why does this keep happening? In a remarkable letter to the editor published
last month in The Shreveport Times, A.M. Stroud III, a former prosecutor in
Louisiana’s Caddo Parish, offered a chillingly frank answer: “Winning became
everything.”
In 1984, Mr. Stroud convinced a jury to convict a man named Glenn Ford and
sentence him to death for murder. But Mr. Stroud now admits that because he was
so focused on winning rather than on seeking justice, he failed to identify and
turn over evidence that would have cleared Mr. Ford.
“How totally wrong was I,” Mr. Stroud wrote, apologizing to Mr. Ford — who spent
30 years in prison, 26 of those on death row — as well as his family, the judge,
the jury, and the family of the murder victim, a jeweler named Isadore Rozeman.
This is little consolation to Mr. Ford, who was released in 2014 but is now
dying from lung cancer that developed, and went untreated, while he wasted away
in prison. (Last month a Louisiana judge denied Mr. Ford any compensation beyond
the $20 debit card he received upon his release.) Still, Mr. Stroud’s powerful
message is a rare admission of prosecutorial hubris and the outrageously high
price many people pay for it.
Unfortunately, that message is unlikely to be heeded in places where it needs to
be heard most — in Caddo Parish itself, for example, which sentences more people
to death per capita than anywhere else in the country. Responding to the searing
honesty of Mr. Stroud’s letter, the parish’s current first assistant district
attorney, Dale Cox, offered up some candor of his own: “I’m a believer that the
death penalty serves society’s interest in revenge,” Mr. Cox told The Shreveport
Times. “I think we need to kill more people.”
The all-too-common mind-set to win at all costs has facilitated the executions
of people like Cameron Todd Willingham or Carlos DeLuna, whose convictions have
been convincingly debunked in recent years. And that mind-set led to the
wrongful conviction of people like Mr. Hinton, Mr. Ford and Henry Lee McCollum,
who was exonerated last year after spending three decades on North Carolina’s
death row.
If not for the extraordinary after-the-fact efforts of lawyers, investigators,
or just plain dumb luck, these men would be dead too, and neither Mr. Cox nor
anyone else would be the wiser.
A version of this editorial appears in print on April 13, 2015, on page A18 of
the New York edition with the headline: 152 Innocents, Marked for Death.
152 Innocents, Marked for Death, NYT,
APRIL 12, 2015,
http://www.nytimes.com/2015/04/13/opinion/152-innocents-marked-for-death.html
Executing Them Softly
February 9, 2015
3:45 am
The New York Times
By Zachary Fine
Opinionator - A Gathering of Opinion From Around the Web
The Stone
The Stone is a forum for contemporary philosophers
and other thinkers on issues
both timely and timeless.
I.
At the outset of his essay “On Pain,” the philosopher Ernst Junger offers a
passage from a 19th-century German cookbook: “Of all animals that serve as
nourishment to man,” it reads, “lobster must suffer the most torturous death,
for it is set in cold water on a hot flame.” Whether or not lobsters suffer — a
crustaceous quandary that once left David Foster Wallace ambivalent, even after
devouring the scientific literature — it is difficult to see their wriggling as
a sign of jubilation. But all too rarely does the fact of their death grab our
attention. Rather, it is the spectacle of pain amid the roiling water that sears
itself into our minds.
In the stream of reports and editorials responding to four botched executions in
the United States in 2014, and now an upcoming Supreme Court case that will
address the constitutionality of Oklahoma’s three-drug lethal injection
cocktail, the primary targets of outrage have been the pain experienced by the
condemned and the method of execution. In July, the execution of Joseph Wood III
in Arizona spanned one hour and 57 minutes. During the process, according to
reports, he “gasped” more than 600 times. Just three months before in Oklahoma,
Clayton D. Lockett reportedly writhed and screamed during his 43-minute-long
execution. And in January 2014, there were Dennis McGuire in Ohio and Michael
Wilson in Oklahoma. Before falling unconscious, Wilson’s last words were: “I
feel my whole body burning.”
In the wake of these executions, critics set their sights on the “barbarism” and
“inhumanity” of the punishments by citing the extraordinary minute counts from
injection to time of death, and the aesthetics of suffering: flailing limbs,
heaving chests and foaming mouths. Inside and outside courts, a number of
officials called for the improvement of chemical compounds (challenging the
“three-drug protocol”), while others demanded a return to the gallows or more
“foolproof” methods such as the firing squad.
In spite of harrowing witness accounts from these executions, the responses of
lawmakers and the media should attract our concern. As this Times editorial
points out, the fixation on the technologies of execution and the appearance of
pain often obscures the crucial debate over the abolition of capital punishment.
In 1972, for instance, the Supreme Court’s decision in Furman v. Georgia skirted
the issue of abolishing the death penalty by focusing on the cruelty of the
method of execution and the seemingly arbitrary imposition of the death sentence
across cases. With a 5-to-4 decision and no controlling opinion, the justices
ruled that an execution would violate the Eighth and Fourteenth Amendments.
Instead of debating the very principle of the death penalty itself, the justices
kicked the can down the road, and capital punishment returned in full force with
Gregg v. Georgia (1976) after only a de facto four-year moratorium.
And today, still skating around the issue, the Court has decided to take up a
case concerning Oklahoma’s three-chemical lethal injection procedure to
adjudicate on whether specific drugs, not capital punishment itself, violate the
Eighth Amendment. Justice Sonia Sotomayor remarked, “We should review such
findings with added care when what is at issue is the risk of the needless
infliction of severe pain.” Yet again, the pain inflicted, and not the principle
of capital punishment, has gripped lawmakers.
II.
Since the late 19th century in the United States, critical responses to the
spectacle of pain in executions have continued to spur ardent calls for the
improvement of killing technology. One of the most prolific legal theorists of
capital punishment, Austin Sarat, has concisely referred to this history: “The
movement from hanging to electrocution, from electrocution to the gas chamber,
from gas to lethal injection, reads like someone’s version of the triumph of
progress, with each new technique enthusiastically embraced as the latest and
best way to kill without imposing pain.” Recent debates over the administration
of midazolam and pentobarbital, and in what dosage, seamlessly integrate
themselves into Sarat’s grim progress narrative.
The inexhaustible impulse to seek out less painful killing technologies puts a
series of questions in sharp relief: What is, and should be, the role of pain in
retributive justice? And how has the law come to rationalize the condemned’s
experience of pain during an execution? While the Eighth Amendment stipulates
the necessity of avoiding “cruel and unusual punishment,” in 1890 the Supreme
Court decided this clause could mean that no method of execution should impose
“something more than the mere extinguishment of life.” And then, in 1958, the
court also determined that the amendment should reflect the “evolving standards
of decency that mark the progress of a maturing society.”
If we were to consider the “standard of decency” in our society today, we would
be pushed to ask: By what moral order have we continued to establish the
“extinguishment of life” as something “mere,” and the pain of the condemned as
excessive? In other words, how has the pain experienced during an execution
become considered cruel and unconstitutional but not the very act of killing
itself? We should dial back to older histories of law to tap into pain’s
perennially vexed role in retributive theories of justice.
Tracing the very origins of the legal subject in “On the Genealogy of Morals”
(1887), Nietzsche writes about a most powerful idea, only the vestiges of which
lingered in 19th-century German jurisprudence: “the idea that every injury has
its equivalent which can be paid in compensation, if only through the pain of
the person who injures.” According to Nietzsche, the genesis of this
“equivalence between injury and pain” can be found in Roman commercial law, in
the “contractual relationship between creditor and debtor.” The relationship
between crime and punishment, more broadly, can then be understood as an injury
or a wrong in the eyes of the law that generates a debt, repayable only through
punishment.
Nietzsche’s gripe is with the law’s attempt to draw an economic equivalence
between two incommensurable concepts: the injury of the victim and the pain of
the punished. The problem is that for the debt to be settled, the injury and the
pain of punishment would each have to be somehow calculable — otherwise, they
could not be made equivalent.
When accounting for pain in any system of crime and punishment, the challenge is
not only the impossibility of calculating it with an objective metric, but also
pain’s “unsharability” and “resistance to language,” as the philosopher Elaine
Scarry has argued. Beyond the subject experiencing pain, who struggles to
account for the sensation — resorting to a handful of adjectives that describe
intensities (severe, sharp, mild, burning, searing, crushing and so forth) or to
analogies (painful as…) — there is also the witness, who is called upon to
interpret the pain of another, as if transmuting the body into a text to be
read. In the case of the death penalty, the condemned experiences pain that
survives only in the language of the witness.
Lawmakers, despite the often inscrutable nature of pain and the difficulty of
representing it through language, still carry the power to adjudicate on how
much of it is enough. When botched executions prompt courts to probe the limits
of the “cruel” and “unusual,” as they often do, the tacit question is: How much
or how little pain is sufficient for the “debt,” as Nietzsche frames it, to be
repaid and justice to be served? In the upcoming Supreme Court case, for
example, where the “needless” infliction of pain is the concern, precisely how
much pain is needed?
After each of the four botched executions in 2014, some critics claimed that the
pain of the condemned was simply too great, drawn out and unjustified, whereas
others attested that no amount of pain could be enough, that the convicted
“deserves” to suffer in the name of justice.
Modern criminal law, however, aims for the high road. Our 21st-century legal
system has mostly parted with that archaic notion of “an eye for an eye” so
fundamental to the origins of retributive justice. Kant, though he listed a few
exceptions, belonged to this camp, proclaiming, “Whoever has committed murder
must die.” Today, even though the punishment is still supposed to fit the crime,
contemporary criminal laws in America tend toward more discreet economies of
pain, relying on prison sentences and painless deaths; punishment now is no
longer simply about matching pain to injury. Even when a state sentences
convicted murderers to death — a life for a life, if you will — the intended
painlessness makes the killing more palatable, seemingly procedural and distinct
from revenge.
Many legal scholars and philosophers see this turn toward supposedly less cruel
and painful deaths as a result of the gradual bureaucratization of executions.
Before the 20th century in Europe and the United States, as the philosopher
Michel Foucault showed in his celebrated 1975 book “Discipline and Punish,”
executions were not only public spectacles but events in which the state would
reconstitute its sovereignty. By publicly “beating down upon” and “mastering”
the body of the criminal, the state would aim to inspire lasting obedience in
the citizens who observed.
Gradually, though, states have sought to distance themselves from the brutality
of the very crimes they condemn. Aiming for retribution and not vengeance (the
former considered morally right), the law now compels the state to kill
“softly,” “gently” and “quietly,” as Sarat has noted. This movement toward a
quiet and medicalized death serves to dispel sympathy for the condemned: The
state’s killing seems more civilized than barbaric and, in comparison to the
condemned’s crime, appears even gracious.
III.
To better pre-empt instances of pain inflicted by the state, we would not only
have to abolish the death penalty but also to reckon with the conditions by
which it continues to exist. The problem is that abolitionism sets it sights too
narrowly. According to the philosopher Jacques Derrida, what makes the
abolitionist discourse “so fragile” is that it “banishes the death penalty at
home and maintains the right to kill at war.” To interdict one kind of execution
and to legally sanction another reveals that abolitionism is often concerned not
with killing itself but rather a locale and a technique.
The logic that allows for railing against certain technologies of killing or how
much pain they produce has repercussions for state-sanctioned violence abroad.
One could argue that this was the case with President Obama’s “red line”
(consistent with the international community’s 1997 Chemical Weapons
Convention), which pronounced the use of certain weaponry, not killing itself,
as the breaking point for intervention in Syria. And, subsequently, it was the
gruesome method and spectacle of the decapitations by the Islamic State, or
ISIS, that seems to have justified an expanded air campaign over Iraq and Syria.
While these grisly scenes can evoke our most impassioned responses, they present
a wound to be superficially sutured: disturbing problems and pains to be rooted
out, often with violence, only when they are seen and heard.
To attend to pain in a more systemic way, we would have to imagine a more
ambitious moral call. Emmanuel Levinas, a 20th-century French Jewish
philosopher, once wrote that “the justification of the neighbor’s pain is surely
the source of all suffering.” Levinas’s conceit suggests that by justifying the
pain of others during an execution or even at war abroad, whether criminals or
foreigners, we risk perpetuating conditions that afford more extensive kinds of
violence, more enduring kinds of pain.
We should continue to challenge the beliefs that lead us to consider a painful
execution as excessively cruel or unusual, and a painless death as justified, or
worse, compassionate.
Zachary Fine is a writer and a student at the New York University Gallatin
School for Individualized Study.
Executing Them Softly,
FEB 9, 2015, NYT,
http://opinionator.blogs.nytimes.com/2015/02/09/death-penalty-pain/
Oklahoma Asks Supreme Court
to Delay Executions
JAN. 26, 2015
The New York Times
By TIMOTHY WILLIAMS
Oklahoma officials asked the United States Supreme Court on
Monday to stay the execution of three inmates on death row until the court rules
on the constitutionality of the state’s lethal injection process. The court
agreed on Friday to decide a case on the constitutionality of the new
combinations of drugs that some states are using to execute prisoners, which
critics say cause intense suffering.
In a filing with the court on Monday, the attorney general of Oklahoma, Scott
Pruitt, said the application to delay the executions was necessary to provide
clarity as the state sought to resume its execution schedule. Oklahoma wants the
right to resume executions if it finds a different suitable combination of
drugs.
The state’s Constitution allows the governor to grant a 60-day reprieve. But
because the Supreme Court case probably will not be resolved in that time frame,
Mr. Pruitt sought the stay, said his spokesman, Will Gattenby. The Supreme Court
is not scheduled to hear the case until late April and is unlikely to issue a
decision before June 1.
“Likewise, the application must be filed with the Supreme Court instead of the
Oklahoma Criminal Court of Appeals because there is no pending case in the
Oklahoma court,” Mr. Gattenby said.
Dale Baich, a lawyer representing the three inmates, said on Monday that his
legal team agreed “that it is appropriate that executions in Oklahoma should be
stayed while the U.S. Supreme Court reviews the case.”
Oklahoma has scheduled executions for the inmates, who have each been convicted
of murder. They are Richard E. Glossip, who has been sentenced to die on
Thursday; John M. Grant, on Feb. 19; and Benjamin R. Cole Sr., on March 5. On
Jan. 15, the state executed another inmate, Charles F. Warner, after the Supreme
Court declined to issue a stay.
Mr. Pruitt said Monday that he believed Oklahoma’s lethal injection practices
were constitutional.
“The families of the victims in these three cases have waited a combined 48
years for the sentences of these heinous crimes to be carried out,” Mr. Pruitt
said in a statement. “Two federal courts have previously held the current
protocol as constitutional, and we believe the United States Supreme Court will
find the same. We thus support stays until a decision in the state’s favor is
final or until viable alternative drugs can be obtained.”
In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to
moan and struggle after the drug cocktail was administered. He died in the
execution chamber 43 minutes after the injections had begun.
Oklahoma, along with several other states, uses midazolam in executions as the
first medication administered to the condemned as a three-part drug cocktail.
The sedative is intended to render the prisoner unconscious before the injection
of a paralytic and then a caustic heart-stopping agent. Midazolam was also
involved in prolonged and what witnesses said appeared to be painful executions
last year in Arizona and Ohio.
Oklahoma and other states have switched to the drug in recent years because the
manufacturers of pentobarbital and sodium thiopental, which had been used
commonly in executions in the past, have refused to sell the drugs to be used
for executions.
After the bungled execution of Mr. Lockett last year, Oklahoma temporarily
suspended lethal injections. But after a review, the state restarted its
execution program while continuing to use midazolam, at a higher dosage.
Mr. Warner’s execution this month was the first since Mr. Lockett’s to be
carried out using midazolam.
According to journalists who witnessed the 18-minute procedure, it did not
appear that Mr. Warner suffered great pain, and he appeared to lose
consciousness quickly. As the injections began, however, he said, “My body is on
fire.” Intravenous lines were inserted into his arms, and he called out that he
had been “poked five times.”
Mr. Warner was convicted of raping and killing an 11-month-old girl in 1997.
A version of this article appears in print on January 27, 2015, on page A11 of
the New York edition with the headline: Oklahoma Asks Justices to Delay
Executions.
Oklahoma Asks Supreme Court to Delay Executions,
JAN 26, 2015, NYT,
http://www.nytimes.com/2015/01/27/us/oklahoma-asks-justices-to-delay-executions.html
Justices to Hear Case
Over Drugs Used in Executions
JAN. 23, 2015
The New York Times
By ADAM LIPTAK
and ERIK ECKHOLM
WASHINGTON — The Supreme Court on Friday agreed to decide a case
on the constitutionality of the new combinations of drugs that some states are
using to execute prisoners and that critics say cause intense suffering.
The court will hear a challenge to Oklahoma’s choice of drugs even though the
justices declined last week to stop an execution there that used the contested
chemicals.
With the addition of this case, the court’s term seems likely to end with three
major decisions — on same-sex marriage, on the fate of the Affordable Care Act
and, now, on the administration of capital punishment.
In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to
moan and struggle after the drugs were administered, then died in the execution
chamber 43 minutes after the injections had begun.
That led the state to suspend lethal injections and try to improve its
procedures. Oklahoma decided to continue using the sedative now under legal
challenge, but at a higher dosage.
The case will provide the Supreme Court’s first evaluation of lethal injections
during a time when the customary drugs have become scarce and states have tried
new combinations and refused to identify the sources of the lethal chemicals.
“Lethal injections are a subject on which everyone deserves clarity, but the law
has been thoroughly chaotic for the last seven years,” said Eric M. Freedman, a
law professor at Hofstra University. “The court’s decision to address the
confusion at last is welcome.”
The case the court agreed on Friday to hear, Glossip v. Gross, No. 14-7955,
involves three inmates who said Oklahoma’s three-chemical procedure violated the
Eighth Amendment because it posed a significant risk of terrible suffering.
The case originally included a fourth inmate, Charles F. Warner. He was executed
on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4
vote. Journalists who witnessed the 18-minute execution said that Mr. Warner did
not seem to suffer great pain and that he appeared to lose consciousness
quickly.
Mr. Warner, 47, was sentenced to death for sexually assaulting and murdering an
11-month-old girl in 1997.
It takes the vote of five justices to stay an execution, but only four to agree
to hear a case.
“We’re excited that the court took the case,” said Dale Baich, a lawyer for the
condemned prisoners.
Another Oklahoma prisoner and plaintiff in the case, Richard Glossip, who was
convicted of a 1997 contract murder, is scheduled for execution on Thursday.
“Our immediate concern now is to try to get a stay for Mr. Glossip,” Mr. Baich
said. “The argument will be that since the court has decided it will hear the
case, that’s a new circumstance that would warrant a stay.”
“The time is right for the court to take a careful look at this important issue,
particularly given the bungled executions that have occurred since states
started using these novel and experimental drugs protocols,” Mr. Baich said.
Justice Sonia Sotomayor dissented from the denial of a stay for Mr. Warner,
saying the case presented two questions worthy of the court’s consideration.
The first, she said, was whether the inmates should be required to specify an
alternative method of execution, as courts have demanded in Oklahoma and
elsewhere, before challenging the method to be used by the state.
“It would be odd if the constitutionality of being burned alive, for example,
turned on a challenger’s ability to point to an available guillotine,” Justice
Sotomayor wrote.
The second issue, she wrote, was whether the state should be using midazolam, a
sedative, as its first chemical. Medical experts testifying on behalf of the
inmates at an evidentiary hearing said the effects of high doses of midazolam,
which Oklahoma adopted, were too unpredictable to justify its use.
Midazolam was also involved in prolonged, possibly painful executions last year
in Ohio and Arizona. The drug has also been used by Florida in a dozen
executions at the start of a three-drug combination, similar to that used in
Oklahoma. The sedative is intended to render the prisoner unconscious before
injection of a paralytic and then a caustic heart-stopping agent. If it does not
do so, medical experts say, the inmate will suffer excruciating pain, which
could go undetected because the prisoner would be paralyzed and unable to
communicate.
Those states have switched to midazolam because companies making the traditional
barbiturates, which have a longer track record and deeper anesthetic properties,
have refused to provide them for executions.
In the Supreme Court brief defending Oklahoma’s drug protocol, state officials
said, “Oklahoma chose midazolam because the state has a sacred duty to enforce
its criminal judgments, and the protocol pioneered by Florida represents the
best available mechanism to carry out these judgments.”
An expert witness for the state had defended the chemical, but Justice Sotomayor
wrote that his testimony was open to question. He “cited no studies,” Justice
Sotomayor wrote, “but instead appeared to rely primarily on the web site
www.drugs.com.”
She expressed surprise that a Federal District Court judge had ruled for the
state, allowing executions to proceed.
“It is true that we give deference to the district courts,” Justice Sotomayor
wrote. “But at some point we must question their findings of fact, unless we are
to abdicate our role of ensuring that no clear error has been committed.”
“We should review such findings with added care when what is at issue is the
risk of the needless infliction of severe pain,” she added. “Here, given the
evidence before the district court, I struggle to see how its decision to credit
the testimony of a single purported expert can be supported given the
substantial body of conflicting empirical and anecdotal evidence.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the
dissent on the denied stay last week.
In its order on Friday, the Supreme Court offered no explanation for agreeing to
review the issue.
The Supreme Court last considered lethal injection protocols in 2008 in Baze v.
Rees, which upheld Kentucky’s use of what was then the three-drug mixture used
in most executions.
Adam Liptak reported from Washington, and Erik Eckholm from New York.
A version of this article appears in print on January 24, 2015, on page A1 of
the New York edition with the headline: Justices to Hear Case on Drugs Used to
Execute.
Justices to Hear Case Over Drugs Used in Executions,
JAN 23, 2015,
http://www.nytimes.com/2015/01/24/us/justices-to-hear-case-on-execution-drugs.html
Oklahoma to Resume Executions,
9 Months After a Lethal Injection
Went Awry
JAN. 15, 2015
The New York Times
By ERIK ECKHOLM
With a renovated death chamber, new training and a higher dose of
drugs, corrections officials in Oklahoma were ready Thursday to carry out the
first execution there since April, when the slipshod, prolonged killing of
Clayton D. Lockett forced the state to suspend lethal injections and make
changes to its procedure.
The grisly details of Mr. Lockett’s execution led to new questions, in Oklahoma
and around the country, about the reliability of lethal injection as a humane
procedure and about the new drug combinations being tried as once-preferred
drugs became scarce.
But in the end, federal courts cleared the way for Oklahoma to resume lethal
injections, using a sedative that some medical experts say may not consistently
put prisoners into the deep coma needed to avoid suffering.
Barring a last-minute reprieve from the Supreme Court, Charles F. Warner is to
be put to death at 6 p.m. local time at the Oklahoma State Penitentiary in
McAlester. Mr. Warner, 47, was condemned for the murder and sexual assault of an
11-month-old girl in 1997.
Also on Thursday, Florida planned to execute Johnny Shane Kormondy, 42, who was
condemned for the murder of a man during a home invasion in 1993, using the same
three-drug combination that was challenged, without success, by the Oklahoma
prisoners’ lawyers.
Mr. Warner was originally scheduled to die on April 29, 2014, two hours after
Mr. Lockett. But his execution was postponed after the problems with Mr.
Lockett’s lethal injection. The prisoner seem to wake and writhed in agony after
a doctor failed to place the intravenous line in a vein, causing the sedative,
then a paralyzing agent and a caustic heart-stopping drug, to diffuse in his
groin. Mr. Lockett finally died 43 minutes into a procedure expected to take no
more than 10 to 15 minutes and after a doctor seeking to reinsert a needle
punctured an artery, resulting in what the prison warden later called “a bloody
mess.”
Lawyers for Mr. Warner and three other Oklahoma prisoners scheduled for
execution in the next two months, backed by several medical experts, argued that
the effects of high doses of midazolam, the sedative adopted by Oklahoma, are
not known completely and too unpredictable to justify its use. Midazolam was
also involved in prolonged, possibly painful executions last year in Ohio and
Arizona.
Oklahoma officials argued, in a brief on Jan. 6, that “the citizens should not
see their criminal justice system derailed” because of “baseless speculation of
theoretical harms.”
In turning down the prisoners’ motion for a delay, a federal district judge, and
then an appeals court, noted that Florida had used the same agent repeatedly
without apparent problems.
The execution of Mr. Kormondy would be Florida’s 12th using midazolam. But
defense lawyers in Florida argue that some of the men executed there showed
unexpected movements after receiving the sedative, and that once the paralytic
is administered, there is no way to know if the prisoner senses excruciating
pain as potassium chloride, the heart-stopping agent, courses through his
bloodstream.
Experts say that barbiturates more commonly used in executions in the past,
sodium thiopental and pentobarbital, produce a deeper unconsciousness and can
even be used alone to cause death. But suppliers of those drugs have refused to
sell them for use in executions.
After an investigation of what went wrong in the Lockett execution, Oklahoma put
new equipment in its death chamber to help ensure proper placement of
intravenous catheters and said that if the paramedic or doctor was unable to
place a needle within one hour, officials might postpone the event. They also
decided to multiply the dose of midazolam, to the level used in Florida.
The news media and civil liberties groups have complained that Oklahoma’s
remodeled execution chamber and new procedures have limited the ability of the
public to observe lethal injections there. Officials say there is room for only
five witnesses from the news media, compared with 12 before. Audio from the
chamber will be turned off, and the state’s corrections director can close the
curtains and block the view of the witnesses at his discretion.
“The officials are addressing some of the things that went wrong, but at the
same time they’re making sure that the public doesn’t know as much about what
happens,” said Brady Henderson, legal director of the American Civil Liberties
Union of Oklahoma.
The evidence of flaws in the Lockett execution led to discussions on talk radio
about the death penalty and how to administer it, Mr. Henderson said. But there
is no evidence that the state’s strong support for capital punishment was
shaken.
In a poll in June, 74 percent of likely voters in Oklahoma said they favored the
death penalty for those convicted of murder. The question had not been asked in
state polling over the previous decade because support was clearly so high, said
Bill Shapard of ShapardResearch, which conducted the survey for the Tulsa World
newspaper.
Nationally, 63 percent of adults supported the death penalty for convicted
murderers in a Gallup poll last October, down from a modern peak of 80 percent
in the mid-1990s but consistent with levels over the last seven years.
If core beliefs about capital punishment have not changed much, publicity about
repeated injection problems, exonerations of prisoners on death row and debates
about executing the mentally ill have all raised public awareness, said Jennifer
Moreno, a lawyer with the death penalty clinic of the University of California,
Berkeley.
“People are taking a look at lethal injection and realizing that it isn’t the
simple, easy process many thought it was,” she said.
Oklahoma to Resume Executions,
9 Months After a Lethal Injection
Went Awry,
NYT,
JAN 15, 2015,
http://www.nytimes.com/2015/01/16/us/
oklahoma-execution-charles-warner-lethal-injectionn.html
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