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How does the death penalty in America end?

For decades that has been an abstract question. Now there may be an answer in the case of Shonda Walter, a 36-year-old black woman on Pennsylvania’s death row. On Friday, the Supreme Court met to discuss whether to hear a petition from Ms. Walter, who is asking the justices to rule that in all cases, including hers, the death penalty violates the Eighth Amendment’s ban on cruel and unusual punishments.

Ever since 1976, when the court allowed executions to resume after a four-year moratorium, the abolition movement has avoided bringing a broad constitutional challenge against the practice, believing that it would not succeed. In that time, 1,423 people have been put to death.

Yet there is no question that the national trend is moving away from capital punishment. Since the late 1990s, almost every year has seen fewer executions, fewer new death sentences and fewer states involved in the repugnant business of killing their citizens.

In 2015, there were 28 executions and 49 new death sentences, the lowest numbers in decades. Seven states have abandoned the practice entirely since 2004, for a total of 19 that no longer have the death penalty. Many others have not executed anyone for years. And only three states — Texas, Georgia and Missouri — were responsible for almost all of last year’s executions.

A majority of Americans still support capital punishment, but the percentage favoring it has dropped from around 80 percent in the 1990s to about 60 percent now. When polls offer a choice between death and life without parole, people roughly split evenly.

In the past 14 years alone, the Supreme Court has barred the execution of several categories of people: minors, the intellectually disabled, and those convicted of a crime other than murder. In that last case, decided in 2008, Justice Anthony Kennedy wrote for the court, “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Taken together, these signs have led some abolitionists to conclude that the conditions for ending capital punishment entirely are now as favorable as they might ever be. That argument got a major boost last June, when Justice Stephen Breyer, in a long dissent from a 5-to-4 ruling that allowed Oklahoma to proceed with its inhumane lethal-injection drug protocol, suggested he would be open to a case challenging the constitutionality of the death penalty itself.

In his dissent, which was joined by Justice Ruth Bader Ginsburg, Justice Breyer explained in detail how the death penalty was unreliable, arbitrary and racially discriminatory. He said it was no longer sufficient simply “to patch up the death penalty’s legal wounds one at a time,” because the practice as a whole “most likely” violates the Eighth Amendment.

Shonda Walter’s case is the first to take up Justice Breyer’s challenge. Ms. Walter was convicted of murdering an 83-year-old man named James Sementelli. Her appointed lawyers put on no defense and offered no argument that might have spared her from a death sentence. Pennsylvania appeals courts agreed that she had inexcusably bad representation, but they still upheld her conviction and sentence. Since Ms. Walter does not fit the special categories of defendants who are shielded from the death penalty, her appeal is based on the claim that all executions violate the Constitution.

The justices may not grant Ms. Walter’s petition (others are also expected to be filed in the coming weeks), but they can no longer ignore the clear movement of history. They already have all the evidence they need to join the rest of the civilized world and end the death penalty once and for all.

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A version of this editorial appears in print on January 17, 2016, on page SR10 of the New York edition with the headline: The Death Penalty Endgame.

The Death Penalty Endgame,
NYT,
JAN. 16, 2016,
http://www.nytimes.com/2016/01/17/
opinion/sunday/the-death-penalty-endgame.html

A Stunning Error in Mississippi

May 6, 2013
5:39 pm
The New York Times
By LINCOLN CAPLAN

Mississippi is scheduled to execute Willie Manning on Tuesday for his 1994 conviction for two murders. Mr. Manning is seeking DNA testing of hair, fingernail scrapings and other evidence connected to the crimes. His lawyers argue that no physical evidence links him to the crimes and that DNA testing could prove him innocent and identify another killer.

But last week, by 5-4, the Mississippi Supreme Court approved the state’s motion to proceed with the execution, having denied Mr. Manning’s motion for DNA testing last month by the same vote.

Since 1989 in the United States, there have been 306 people exonerated by DNA evidence after they were convicted, 18 on death row. In seven previous cases, DNA testing has exonerated men convicted and imprisoned in Mississippi. In each case, the killer left DNA at the crime scene.

Last week, the Justice Department provided extraordinary grounds for the state to allow DNA testing in the Manning case. In a letter to the prosecution and defense, the department said that testimony of an F.B.I. analyst who was a key prosecution witness “exceeded the limits of the science and was, therefore, invalid.”

That analyst testified that he could match a hair found at the crime scene to an individual with “a relatively high degree of certainty” and that the hair fragments collected from a victim’s car “came from an individual of the black race.” The Justice Department concluded that it was “error for an examiner to testify that he can determine that the questioned hairs were from an individual of a particular racial group.”

The F.B.I. has now offered to do the DNA testing requested by Mr. Manning, who is black. One dissenting opinion from the Mississippi Supreme Court said, “In asking the jury to convict Manning, an African American, of the murder of two white students, the prosecution seems to have placed great emphasis on the fact that hair samples, originating from an African American” were found in the car. The prosecution, however, did not connect the hair to Mr. Manning. Clearly, the Justice Department’s letter makes the emphasis placed on the hair samples deeply problematic.

Mr. Manning’s lawyers went back to the Mississippi Supreme Court on Monday to ask that the court stay his execution and set aside his convictions based on the Justice Department’s acknowledgment that the F.B.I. analyst’s testimony was false. That new evidence is crucial and stunning. The court should stay the execution and let the DNA testing go forward, but if it does not, then Gov. Phil Bryant must do that.

The whole case underscores the often racially discriminatory application of the death penalty in cases where the victims are white and the defendants are black, one of many reasons that capital punishment should be abolished.

    A Stunning Error in Mississippi, NYT, 6.5.2013,
    http://takingnote.blogs.nytimes.com/2013/05/06/
    a-stunning-error-in-mississippi/

Use of Death Sentences

Continues to Fall in U.S.

December 20, 2012
The New York Times
By ETHAN BRONNER

Thirty-six years after the Supreme Court reinstated the death penalty, its use is waning, with prosecutors and juries preferring to sentence convicted murderers to life in prison without parole. New data for 2012 show that nine states executed inmates this year, the fewest in two decades, and the number of death sentences handed down this year — 80 — was about a third of the total in 2000.

“We have done polling on this, and the biggest reason is lingering doubt about guilt,” said Richard C. Dieter, executive director of the Death Penalty Information Center, which tracks executions around the country and released the numbers this week. “Between 90 and 95 percent of the people are aware that there have been exonerations based on DNA evidence.”

While a majority of states — 33 — still have the death penalty on the books, that number has also been on the decline. Connecticut banned capital punishment this year, the fifth state in five years to do so, following Illinois, New Jersey, New Mexico and New York. Twenty-nine states either do not have the death penalty or have not carried out an execution in five years.

In addition, four states with histories of executing convicted murderers — Indiana, North Carolina, South Carolina and Virginia — sentenced no one to death this year. Three-quarters of the 43 people put to death in 2012 were in four states: Arizona, Mississippi, Oklahoma and Texas.

Another major reason for the decline is that the death penalty involves enormous expense and numerous appeals; some prosecutors say they prefer life imprisonment.

Stan Garnett, the district attorney in Boulder County, Colo., wrote recently that as his state considered repealing the death penalty, he would like his fellow citizens to know that he was “not morally or philosophically opposed” to it. But he considers the death penalty impractical because it is expensive, time-consuming and often unfairly applied.

“A 1994 Colorado death verdict currently pending before the U.S. Supreme Court has cost the state of Colorado nearly $18 million to fund through all the appeals,” Mr. Garnett wrote. He said his office’s operating budget is $4.6 million and prosecutes 1,900 felonies a year.

In California, a referendum last month seeking to end the death penalty because of its cost narrowly failed to achieve a majority. But the 47 percent of voters who supported the referendum represents a much larger number of Californians opposing capital punishment than ever before. The state has not carried out an execution in nearly seven years.

A year ago, the chief justice of the California Supreme Court, Tani Cantil-Sakauye, called for a re-evaluation of the death penalty system, saying it was ineffective. Asked if she supported the death penalty, she replied: “I don’t know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and, given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?”

Texas executed 15 people this year, by far the most in the country. But for the eighth consecutive year it executed more people than it sentenced to death, signaling that fewer executions will be carried out in the future, according to the Death Penalty Information Center, in Washington. The total number of people on death row in the country is 3,170, down from 3,670 in 2000.

James S. Liebman, a law professor at Columbia University, said he had studied the death penalty’s use by county, rather than by state, because punishment is sought at the county level, and he found that 60 percent of the nation’s counties no longer seek it. In addition, he said, some counties that in the past had led the country in its use, like Houston, did not hand down a single death penalty this year.

“A lot of officials have come to the conclusion that if they are concerned about deterrence and protection of their citizens and the diminishing of crime, the death penalty is not a very good strategy,” Professor Liebman said. “The counties that use it are ones that tend to spend a lot less money on law enforcement, criminal justice and the courts. They are using it instead of modern law enforcement.”

Professor Liebman, like Mr. Dieter of the Death Penalty Information Center, noted that murders account for a small percentage of crimes, yet seeking the death penalty can take up most of a prosecutor’s budget. Death penalty cases usually involve two trials — one to determine guilt, and the other to decide on the death penalty — and better lawyers for the defense. In addition, prosecutors do not like to lose death penalty cases, so they tend to put in far greater effort and resources.

“If you get someone into jail, the likelihood of his committing murder will at least be lower,” Professor Liebman said. “In addition, most people on death row are never going to get executed. Death row incarceration is more expensive. It requires single cells because the inmates are considered more dangerous and more desperate.”

Mr. Dieter added: “Juries know that mistakes have been made and have lingering doubts about absolute guilt. Life without parole gives them an alternative.”

    Use of Death Sentences Continues to Fall in U.S., NYT, 20.12.2012,
    http://www.nytimes.com/2012/12/21/us/
    use-of-death-sentences-continues-to-fall-numbers-show.html

Race and Death Penalty Juries

February 5, 2012

The New York Times

North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias.

In 173 cases between 1990 and 2010, the study examined decisions involving 7,421 potential jurors (82 percent were white; 16 percent were black). In 166 cases, where there was at least one black potential juror, prosecutors dismissed more than twice as many blacks from the jury (56 percent) as others (25 percent). With black defendants, like Mr. Robinson, the disparity was even greater. Even accounting for “alternative explanations” besides race for different “strike rates” — for instance, excluding those who expressed ambivalence about the death penalty — the study found blacks were still more than twice as likely to be dismissed.

Under a 1986 Supreme Court case, it is unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender. But the court allowed dismissals of jurors for other reasons — like their attitude toward the death penalty or even their demeanor. Prosecutors often use these reasons as pretexts to eliminate blacks from juries. North Carolina’s Racial Justice Act expressly allows consideration of a pattern across many cases. The study found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race, even though a judge had ruled that the potential jurors could be counted on to render a fair verdict and sentence in a death penalty case.

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.

Race and Death Penalty Juries, NYT, 5.2.2012,
http://www.nytimes.com/2012/02/06/opinion/race-and-death-penalty-juries.html

Execution Case Dropped

Against Abu-Jamal

December 7, 2011
The New York Times
By TIMOTHY WILLIAMS

Prosecutors in Philadelphia announced Wednesday that they had halted the state’s effort to execute Mumia Abu-Jamal, the death row inmate convicted of killing a police officer 30 years ago, whose subsequent legal case based on claims of innocence has received international attention.

Mr. Abu-Jamal will spend the rest of his life in prison without the possibility of parole, said Seth Williams, the district attorney for Philadelphia.

“This has been a very, very difficult decision,” Mr. Williams said at a news conference, adding that he believed Mr. Abu-Jamal was guilty of the murder and should be executed. “The sentence was appropriate. That would have been the just sentence for this defendant.”

In April, a federal appeals court ordered a new sentencing hearing for Mr. Abu-Jamal because jurors had received potentially misleading instructions during his 1982 trial. In October, the United States Supreme Court declined to hear the case.

Mr. Williams said Wednesday that the appeals court ruling — and others that have spared Mr. Abu-Jamal’s life over the years — had led him to drop his pursuit of the death penalty, in part because witnesses are no longer available. He said he made the decision after discussing it with Maureen Faulkner, the widow of Daniel Faulkner, the slain police officer.

During his long stay on death row, Mr. Abu-Jamal, 57, a former Black Panther and radio reporter, became a vocal and — to some — convincing advocate of his own “Free Mumia” movement. That cause became particularly prominent around college campuses, where students collected donations for his legal defense fund and sold buttons and posters carrying images of his pensive face and long dreadlocks beneath that slogan. The Beastie Boys and Rage Against the Machine performed at a benefit concert on his behalf in 1999, and a suburb of Paris named a street after him in 2006.

The case has been played out repeatedly in court and the news media, and found a place in popular culture that has extended into the Internet age on blogs and Facebook pages. The trial was said to be either a miscarriage of justice based on racism, or a cut-and-dried murder of a law enforcement officer in which the issue of race prevented justice from being carried out. Mr. Abu-Jamal survived at least two execution dates — in August 1995 and December 1999.

On Wednesday, Ms. Faulkner, who appeared at the news conference with Mr. Williams and other city officials, said she had agreed to give up her advocacy for Mr. Abu-Jamal’s execution because the case had dragged on for too long.

At times, she employed stinging language to express her vexation at Mr. Abu-Jamal’s ability to avoid execution, calling the judges who overturned Mr. Abu-Jamal’s death sentence “dishonest cowards.”

“Rest assured I will now fight with every ounce of energy I have to see that Mumia Abu-Jamal receives absolutely no special treatment when he is removed from death row,” she said. “I will not stand by and see him coddled as he had been in the past. And I am heartened by the thought that he will finally be taken from the protected cloister he has been living in all these years and begin living among his own kind — the thugs and common criminals that infest our prisons.”

But Christina Swarns, director of the criminal justice practice at the NAACP Legal Defense Fund, which is representing Mr. Abu-Jamal, said that she was “delighted” by the decision — and that the Free Mumia movement had some influence.

“We’re at a time in this country when support of the death penalty is at an all-time low, and that reflects some of the concerns expressed by Mumia’s supporters in terms of the fairness of the process,” she said.

Mr. Abu-Jamal, who is black, was convicted of fatally shooting Officer Faulkner, who was white, on Dec. 9, 1981, after the officer pulled over Mr. Abu-Jamal’s brother for driving the wrong way on a one-way street. A jury found that Mr. Abu-Jamal had shot Officer Faulkner in the back and then, as the officer lay bleeding, shot him four more times. Mr. Abu-Jamal had been shot in the chest by the officer.

Mr. Abu-Jamal has said that he was at the scene but that someone else — whom he has not identified — was the killer.

Execution Case Dropped Against Abu-Jamal, NYT, 7.12.2011,
http://www.nytimes.com/2011/12/08/us/
execution-case-dropped-against-convicted-cop-killer.html

An Indefensible Punishment

September 25, 2011
The New York Times

When the Supreme Court reinstituted the death penalty 35 years ago, it did so provisionally. Since then, it has sought to articulate legal standards for states to follow that would ensure the fair administration of capital punishment and avoid the arbitrariness and discrimination that had led it to strike down all state death penalty statutes in 1972.

As the unconscionable execution of Troy Davis in Georgia last week underscores, the court has failed because it is impossible to succeed at this task. The death penalty is grotesque and immoral and should be repealed.

The court’s 1976 framework for administering the death penalty, balancing aggravating factors like the cruelty of the crime against mitigating ones like the defendant’s lack of a prior criminal record, came from the American Law Institute, the nonpartisan group of judges, lawyers and law professors. In 2009, after a review of decades of executions, the group concluded that the system could not be fixed and abandoned trying.

Sentencing people to death without taking account of aggravating and mitigating circumstances leads to arbitrary results. Yet, the review found, so does considering such circumstances because it requires jurors to weigh competing factors and makes sentencing vulnerable to their biases.

Those biases are driven by race, class and politics, which influence all aspects of American life. As a result, they have made discrimination and arbitrariness the hallmarks of the death penalty in this country.

For example, two-thirds of all those sentenced to death since 1976 have been in five Southern states where “vigilante values” persist, according to the legal scholar Franklin Zimring. Racism continues to infect the system, as study after study has found in the past three decades.

The problems go on: Many defendants in capital cases are too poor to afford legal counsel. Many of the lawyers assigned to represent them are poorly equipped for the job. A major study done for the Senate Judiciary Committee found that “egregiously incompetent defense lawyering” accounted for about two-fifths of the errors in capital cases. Apart from the issue of counsel, these cases are more expensive at every stage of the criminal process than noncapital cases.

Politics also permeates the death penalty, adding to chances of arbitrary administration. Most prosecutors in jurisdictions with the penalty are elected and control the decision to seek the punishment. Within the same state, differing politics from county to county have led to huge disparities in use of the penalty, when the crime rates and demographics were similar. This has been true in Pennsylvania, Georgia, Texas and many other states.

So far, under this horrifying system, 17 innocent people sentenced to death have been exonerated and released based on DNA evidence, and 112 other people based on other evidence. All but a few developed nations have abolished the death penalty. It is time Americans acknowledged that the death penalty cannot be made to comply with the Constitution and is in every way indefensible.

An Indefensible Punishment, NYT, 25.9.2011,
http://www.nytimes.com/2011/09/26/opinion/an-indefensible-punishment.html

Justice After Troy Davis

September 24, 2011
The New York Times
By ROSS DOUTHAT

IT’S easy to see why the case of Troy Davis, the Georgia man executed last week for the 1989 killing of an off-duty police officer, became a cause célèbre for death penalty opponents. Davis was identified as the shooter by witnesses who later claimed to have been coerced by investigators. He was prosecuted and convicted based on the same dubious eyewitness testimony, rather than forensic evidence. And his appeals process managed to be ponderously slow without delivering anything like certainty: it took the courts 20 years to say a final no to the second trial that Davis may well have deserved.

For many observers, the lesson of this case is simple: We need to abolish the death penalty outright. The argument that capital punishment is inherently immoral has long been a losing one in American politics. But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.

If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent.

This is a healthy fear for a society to have. But there’s a danger here for advocates of criminal justice reform. After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.

Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.

Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked. We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received. And gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America.

This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene. In any penal system, he pointed out, but especially in our own — which can be brutal, overcrowded, rife with rape and other forms of violence — a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity. It’s just become better at self-deception about what’s really going on.

Fundamentally, most Americans who support the death penalty do so because they want to believe that our justice system is just, and not merely a mechanism for quarantining the dangerous in order to keep the law-abiding safe. The case for executing murderers is a case for proportionality in punishment: for sentences that fit the crime, and penalties that close the circle.

Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms. Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.

Abolishing capital punishment in a kind of despair over its fallibility would send a very different message. It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice. It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice.

    Justice After Troy Davis, NYT, 24.9.2011,
    http://www.nytimes.com/2011/09/25/opinion/
    sunday/douthat-justice-after-troy-davis.html

Davis Is Executed in Georgia

September 21, 2011
The New York Times
By KIM SEVERSON

JACKSON, Ga. — Proclaiming his innocence, Troy Davis was put to death by lethal injection on Wednesday night, his life — and the hopes of supporters worldwide — prolonged by several hours while the Supreme Court reviewed but then declined to act on a petition from his lawyers to stay the execution.

Mr. Davis, 42, who was convicted of murdering a Savannah police officer 22 years ago, entered the death chamber shortly before 11 p.m., four hours after the scheduled time. He died at 11:08.

This final chapter before his execution had become an international symbol of the battle over the death penalty and racial imbalance in the justice system.

“It harkens back to some ugly days in the history of this state,” said the Rev. Raphael Warnock of Ebenezer Baptist Church, who visited Mr. Davis on Monday.

Mr. Davis remained defiant at the end, according to reporters who witnessed his death. He looked directly at the members of the family of Mark MacPhail, the officer he was convicted of killing, and told them they had the wrong man.

“I did not personally kill your son, father, brother,” he said. “All I can ask is that you look deeper into this case so you really can finally see the truth.”

He then told his supporters and family to “keep the faith” and said to prison personnel, “May God have mercy on your souls; may God bless your souls.”

One of the witnesses, a radio reporter from WSB in Atlanta, said it appeared that the MacPhail family “seemed to get some satisfaction” from the execution.

For Mr. Davis’s family and other supporters gathered in front of the prison, the final hours were mixed with hope, tears and exhaustion. The crowd was buoyed by the Supreme Court’s involvement, but crushed when the justices issued their one-sentence refusal to consider a stay.

When the news of his death came, the family left quietly and the 500 or so supporters began to pack up and leave their position across the state highway from the prison entrance. Mr. Davis’s body was driven out of the grounds about midnight.

During the evening, a dozen supporters of the death penalty, including people who knew the MacPhail family sat quietly, separated from the Davises and their supporters by a stretch of lawn and rope barriers.

The appeal to the Supreme Court was one of several last-ditch efforts by Mr. Davis on Wednesday. Earlier in the day, an official with the National Association for the Advancement of Colored People said that the vote by the Georgia parole board to deny clemency to Mr. Davis was so close that he hoped there might be a chance to save him from execution.

The official, Edward O. DuBose, president of the Georgia chapter, said the group had “very reliable information from the board members directly that the board was split 3 to 2 on whether to grant clemency.”

“The fact that that kind of division was in the room is even more of a sign that there is a strong possibility to save Troy’s life,” he said.

The N.A.A.C.P said it had been in contact with the Department of Justice on Wednesday, in the hope that the federal government would intervene on the basis of civil rights violations, meaning irregularities in the original investigation and at the trial.

Earlier in the day, his lawyers had asked the state for another chance to spare him: a lie detector test.

But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr. Davis’s clemency after a daylong hearing on Monday, quickly responded that there would be no reconsideration of the case, and the polygraph test was abandoned.

Mr. Davis’s supporters also reached out to the prosecutor in the original case and asked him to persuade the original judge to rescind the death order. Benjamin Jealous, the president of the N.A.A.C.P, also tried to ask President Obama for a reprieve.

The Innocence Project, which has had a hand in the exoneration of 17 death-row inmates through the use of DNA testing, sent a letter to the Chatham County district attorney, Larry Chisolm, urging him to withdraw the execution warrant against Mr. Davis.

Mr. Davis was convicted of the 1989 shooting of Officer MacPhail, who was working a second job as a security guard. A homeless man called for help after a group that included Mr. Davis began to assault him, according to court testimony. When Officer MacPhail went to assist him, he was shot in the face and the heart.

Before Wednesday, Mr. Davis had walked to the brink of execution three times.

His conviction came after testimony by some witnesses who later recanted and on the scantest of physical evidence, adding fuel to those who rely on the Internet to rally against executions and to question the validity of eyewitness identification and of the court system itself.

But for the family of the slain officer and others who believed that two decades’ worth of legal appeals and Supreme Court intervention was more than enough to ensure justice, it was not an issue of race but of law.

Inside the prison, Officer MacPhail’s widow, Joan MacPhail-Harris, said calling Mr. Davis a victim was ludicrous.

“We have lived this for 22 years,” she said on Monday. “We are victims.”

She added: “We have laws in this land so that there is not chaos. We are not killing Troy because we want to.”

Mr. Davis, who refused a last meal, had been in good spirits and prayerful, said Wende Gozan Brown, a spokeswoman for Amnesty International, who visited him on Tuesday. She said he had told her his death was for all the Troy Davises who came before and after him.

“I will not stop fighting until I’ve taken my last breath,” she recounted him as saying. “Georgia is prepared to snuff out the life of an innocent man.”

The case has been a slow and convoluted exercise in legal maneuvering and death penalty politics.

The state parole board granted him a stay in 2007 as he was preparing for his final hours, saying the execution should not proceed unless its members “are convinced that there is no doubt as to the guilt of the accused.” The board has since added three new members.

In 2008, his execution was about 90 minutes away when the Supreme Court stepped in. Although the court kept Mr. Davis from execution, it later declined to hear the case.

This time around, the case catapulted into the national consciousness with record numbers of petitions — more than 630,000 — delivered to the board to stay the execution, and the list of people asking for clemency included former President Jimmy Carter, Archbishop Desmond Tutu, 51 members of Congress, entertainment figures like Cee Lo Green and even some death penalty supporters, including William S. Sessions, a former F.B.I. director.

Kim Severson reported from Jackson,

and John Schwartz from New York.

    Davis Is Executed in Georgia, NYT, 21.9.2011,
    http://www.nytimes.com/2011/09/22/us/
    final-pleas-and-vigils-in-troy-davis-execution.html

A Grievous Wrong

September 20, 2011
The New York Times

Troy Davis is scheduled to be executed on Wednesday for the 1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime.

This case has attracted worldwide attention, but it is, in essence, no different from other capital cases. Across the country, the legal process for the death penalty has shown itself to be discriminatory, unjust and incapable of being fixed. Just last week, the Supreme Court granted a stay of execution for Duane Buck, an African-American, hours before he was to die in Texas because a psychologist testified during his sentencing that Mr. Buck’s race increased the chances of future dangerousness. Case after case adds to the many reasons why the death penalty must be abolished.

The grievous errors in the Davis case were numerous, and many arose out of eyewitness identification. The Savannah police contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one. The police showed some of the witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses.

In the decades since the Davis trial, science-based research has shown how unreliable and easily manipulated witness identification can be. Studies of the hundreds of felony cases overturned because of DNA evidence have found that misidentifications accounted for between 75 percent and 85 percent of the wrongful convictions. The Davis case offers egregious examples of this kind of error.

Under proper practices, no one should know who the suspect is, including the officer administering a lineup. Each witness should view the lineup separately, and the witnesses should not confer about the crime. A new study has found that even presenting photos sequentially (one by one) to witnesses reduced misidentifications — from 18 percent to 12 percent of the time — compared with lineups where photos were presented all at once, as in this case.

Seven of nine witnesses against Mr. Davis recanted after trial. Six said the police threatened them if they did not identify Mr. Davis. The man who first told the police that Mr. Davis was the shooter later confessed to the crime. There are other reasons to doubt Mr. Davis’s guilt: There was no physical evidence linking him to the crime introduced at trial, and new ballistics evidence broke the link between him and a previous shooting that provided the motive for his conviction.

More than 630,000 letters pleading for a stay of execution were delivered to the Georgia board last week. Those asking for clemency included President Jimmy Carter, 51 members of Congress and death penalty supporters, such as William Sessions, a former F.B.I. director. The board’s failure to commute Mr. Davis’s death sentence to life without parole was a tragic miscarriage of justice.

    A Grievous Wrong, NYT, 20.9.2011,
    http://www.nytimes.com/2011/09/21/opinion/
    a-grievous-wrong-on-georgias-death-row.html

Digital Age Drives Rally to Keep

a Georgia Inmate From Execution

September 16, 2011
The New York Times
By KIM SEVERSON

ATLANTA — As Troy Davis faces his fourth execution date, the effort to save him has come to rival the most celebrated death row campaigns in recent history.

On Monday, the Georgia State Board of Pardons and Paroles will give Mr. Davis what is by all accounts his last chance to avoid death by lethal injection, scheduled for Wednesday.

Whether history will ultimately judge Mr. Davis guilty or innocent, cultural and legal observers will be left to examine why Mr. Davis, convicted of killing a Savannah police officer, Mark MacPhail, 22 years ago, has been catapulted to the forefront of the national conversation when most of the 3,251 other people on death row in the United States have not.

The answer, experts say, can be found in an amalgam of changing death penalty politics, concerns about cracks in the judicial system, the swift power of digital political organizing and, simply, a story with a strong narrative that caught the public’s attention.

“Compelling cases that make us second-guess our justice system have always struck a chord with the American public,” said Benjamin T. Jealous, president of the N.A.A.C.P. “Some are simply more compelling in that they seem to tap deeply into the psyche of this country. A case like this suggests that our justice system is flawed.”

Like others involved in the case, he credits Mr. Davis’s sister, Martina Correia, a media-friendly former soldier who has long argued that the police simply got the wrong man, with keeping the story alive.

And the story has been compelling. A parade of witnesses have recanted since the original trial, and new testimony suggests the prosecution’s main witness might be the killer.

There are racial undertones — Mr. Davis is black and the victim was white — and legal cliffhangers, including a stay in 2008 that came with less than 90 minutes to spare and a Hail Mary pass in 2009 that resulted in a rare Supreme Court decision.

Altogether, it had the makings of a story that has grabbed many armchair lawyers and even the most casual opponent of the death penalty.

The list of people asking that the Georgia parole board offer clemency has grown from the predictable (Jimmy Carter, Archbishop Desmond Tutu, the Indigo Girls) to the surprising, including 51 members of Congress, entertainment heavyweights like Cee Lo Green and death penalty supporters including William S. Sessions, a former F.B.I. director, and Bob Barr, a former member of Congress, and some leaders in the Southern Baptist church. (Unlike some other states, in Georgia the governor cannot commute a death sentence; only the parole board can.)

Propelled by a recent flood of digital media including Twitter traffic and online petition requests, the case has become fodder for discussion in fashionable Atlanta bistros, Harlem street corners and anywhere living room sleuths gather in their search for another Casey Anthony trial to dissect.

On Friday, about 1,000 people marched to Ebenezer Baptist Church here for a prayer vigil, one of hundreds of rallies being organized by Amnesty International around the world.

The facts of the case itself captured the attention of Nancie McDermott, a North Carolina cookbook author who usually spends her time in the kitchen but who took up the cause with a passion once she started reading about it on liberal Web sites.

“I think if my brother or son or dear friend from college were about to be put to death, and there was no physical evidence, and seven of nine witnesses had recanted and testified to coercion in that original testimony, would I shrug and say, ‘The jury made its decision?’ ” she wrote in an e-mail. “I just want people, particularly all the churchgoing people like me, to look me in the eye and tell me, just once, that this is justice.”

There are some larger political themes weaving through the case.

As executions becomes less common and sentences for executions decline — dropping to about 100 a year from three times that in the 1990s — the focus on execution as a means of punishment and a marker of the nation’s cultural and political divide becomes sharper, legal analysts said.

That divide results in a culture that in the same week can generate hundreds of thousands of letters of support for Troy Davis and, conversely, bring a cheering round of applause from the audience at a Republican presidential debate when Gov. Rick Perry of Texas was asked about the 234 executions in his state during his term of office.

“We’ve gotten to a critical point in the death penalty in this country,” said Ferrel Guillory, a professor of journalism and mass communication at the University of North Carolina. “These cases are being phased out but at the same time they don’t make the front page anymore, so when one comes along with a strong narrative and a good advocate, it gets our attention.”

Matthew Poncelet, a Louisiana convict, had Sister Helen Prejean, whose story of her work with him in the final phase of his life brought “dead man walking” into popular lexicon after Hollywood released a film version of the case in 1995.

Mumia Abu-Jamal, the former journalist and Black Panther who was convicted of shooting a white Philadelphia police officer in 1981, rode the power of his own charisma. His case became so popular globally that a road in a Parisian suburb bears his name.

Mr. Davis’s case not only offers a good narrative with strong characters people can relate to — his father was a law enforcement officer, his mother was a churchgoer, his sister is fighting both cancer and for her brother’s innocence — but has also benefited from an explosion in social media.

“Back in 2007, nobody outside of Savannah knew who Troy Davis was,” said Laura Moye, director of Amnesty International U.S.A.’s Death Penalty Abolition Campaign. “Now it’s safe to say over a million people do.”

For proof, she offers the 633,000 petitions she and others delivered to the parole board in an elaborate media event on Friday. About 200,000 of them were electronic signatures gathered by Change.org in less than a week.

“It’s a new era of activism,” she said.

Online organizing drew Anderia Bishop, 37, of Atlanta, to the case last week. She learned about Mr. Davis through an e-mail from ColorOfChange.org, a black political organization.

The fact that there was very little physical evidence and no DNA and a case built largely on witnesses who changed their story got her attention.

“I thought, literally, it could be me, and that’s something a lot of people who are casually watching this case think,” she said. “There are just too many questions.”

But public pressure and intense media attention can cut both ways, said Stephen Bright, president of the Southern Center for Human Rights and a longtime capital defense lawyer.

“It certainly heightens the attention a case gets, but there also can be some defensiveness,” he said. “There has historically been that worry that people from out of state will come in and not understand what really happened.”

The difference, he said, is that in today’s information-rich age, people around the world actually do know most of the facts in the case.

“It tells the State of Georgia that the whole world is watching,” he said.

Digital Age Drives Rally to Keep a Georgia Inmate From Execution, NYT, 16.9.2011,
http://www.nytimes.com/2011/09/17/us/supporters-rally-to-save-troy-davis-from-execution-in-georgia.html

Death Penalty,

Still Racist and Arbitrary

July 8, 2011
The New York Times
By DAVID R. DOW

Houston

LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.

Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks.

What became known as the Baldus study was the centerpiece of the Supreme Court’s 1987 decision in McCleskey v. Kemp. That case involved a black man, Warren McCleskey, who was sentenced to die for murdering a white Atlanta police officer. Mr. McCleskey argued that the Baldus study established that his death sentence was tainted by racial bias. In a 5-to-4 decision, the Supreme Court ruled that general patterns of discrimination do not prove that racial discrimination operated in particular cases.

Of course, the court had to say that, or America’s capital justice system would have screeched to a halt. Georgia is not special. Nationwide, blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of those executed had murdered white people. Over the past three decades, the Baldus study has been replicated in about a dozen other jurisdictions, and they all reflect the same basic racial bias. By insisting on direct evidence of racial discrimination, the court in McCleskey essentially made the fact of pervasive racism legally irrelevant, because prosecutors rarely write e-mails announcing they are seeking death in a given case because the murderer was black (or because the victim was white).

In Texas, though, they do come close. In 2008, the district attorney of Harris County, Chuck Rosenthal, resigned after news emerged that he had sent and received racist e-mails. His office had sought the death penalty in 25 cases; his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite defendant.

Since 1976, Texas has carried out 470 executions (well more than a third of the national total of 1,257). You can count on one hand the number of those executions that involved a white murderer and a black victim and you do not need to use your thumb, ring finger, index finger or pinkie.

Well, you might need the pinkie. On June 16, Texas executed Lee Taylor, who at age 16 beat an elderly couple while robbing their home. The 79-year-old husband died of his injuries. Mr. Taylor was sentenced to life in prison; there he joined the Aryan Brotherhood, a white gang, and, four years into his sentence, murdered a black inmate and was sentenced to death. When Mr. Taylor was executed, it was reported that he was the second white person in Texas executed for killing a black person. Actually, he should be counted as the first. The other inmate, Larry Hayes, executed in 2003, killed two people, one of whom was white.

The facts surrounding Lee Taylor’s execution are cause for further shame. John Balentine, a black inmate, was scheduled to die in Texas the day before Lee Taylor’s execution. Mr. Balentine’s lawyers argued that his court-appointed appellate lawyer had botched his case, and that he should have an opportunity to raise issues the lawyer had neglected. Less than an hour before Mr. Balentine was to die, the Supreme Court issued a stay.

Lee Taylor’s lawyers watched the Balentine case closely; their client too had received scandalously bad representation, and, they filed a petition virtually identical to the one in the Balentine case. But by a vote of 5-to-4, the justices permitted the Taylor execution to proceed. If there were differences between the Balentine and Taylor cases, they were far too minor to form the boundary between life and death. But trivial distinctions are commonplace in death penalty cases. Justice Lewis F. Powell Jr., one of the five justices in the McCleskey majority, retired from the court in 1987. Following his retirement he said he had voted the wrong way. If Justice Powell had changed his mind sooner, Warren McCleskey, who was executed in Georgia in 1991, would still be alive.

And because of a vote from a single Supreme Court justice, John Balentine lives while Lee Taylor died. When capital punishment was briefly struck down, in 1972, Justice Potter Stewart said the death penalty was arbitrary, like being struck by lightning.

It still is, and it’s the justices themselves who keep throwing the bolts.

David R. Dow, a professor

at the University of Houston Law Center,

is the author, most recently, of a memoir,

“The Autobiography of an Execution.”

This article has been revised

to reflect the following correction:

Correction: July 14, 2011

An Op-Ed article on Saturday about the death penalty misstated the year Justice Lewis F. Powell Jr. retired from the Supreme Court. It was 1987, not 1991. To have made a difference in the case of Warren McCleskey, who was executed in 1991, Justice Powell would have had to change his mind in 1987 (not “a year sooner” than 1991, as the article said), when he was in the 5-to-4 majority that said Mr. McCleskey could be executed.

Death Penalty, Still Racist and Arbitrary, NYT, 8.7.2011,
http://www.nytimes.com/2011/07/09/opinion/09dow.html

The Prosecution Rests, but I Can’t

April 9, 2011
The New York Times
By JOHN THOMPSON

New Orleans

I SPENT 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished. Last month, the Supreme Court decided 5-4 to overturn a case I’d won against them and the district attorney who oversaw my case, ruling that they were not liable for the failure to turn over that evidence — which included proof that blood at the robbery scene wasn’t mine.

Because of that, prosecutors are free to do the same thing to someone else today.

I was arrested in January 1985 in New Orleans. I remember the police coming to my grandmother’s house — we all knew it was the cops because of how hard they banged on the door before kicking it in. My grandmother and my mom were there, along with my little brother and sister, my two sons — John Jr., 4, and Dedric, 6 — my girlfriend and me. The officers had guns drawn and were yelling. I guess they thought they were coming for a murderer. All the children were scared and crying. I was 22.

They took me to the homicide division, and played a cassette tape on which a man I knew named Kevin Freeman accused me of shooting a man. He had also been arrested as a suspect in the murder. A few weeks earlier he had sold me a ring and a gun; it turned out that the ring belonged to the victim and the gun was the murder weapon.

My picture was on the news, and a man called in to report that I looked like someone who had recently tried to rob his children. Suddenly I was accused of that crime, too. I was tried for the robbery first. My lawyers never knew there was blood evidence at the scene, and I was convicted based on the victims’ identification.

After that, my lawyers thought it was best if I didn’t testify at the murder trial. So I never defended myself, or got to explain that I got the ring and the gun from Kevin Freeman. And now that I officially had a history of violent crime because of the robbery conviction, the prosecutors used it to get the death penalty.

I remember the judge telling the courtroom the number of volts of electricity they would put into my body. If the first attempt didn’t kill me, he said, they’d put more volts in.

On Sept. 1, 1987, I arrived on death row in the Louisiana State Penitentiary — the infamous Angola prison. I was put in a dead man’s cell. His things were still there; he had been executed only a few days before. That past summer they had executed eight men at Angola. I received my first execution date right before I arrived. I would end up knowing 12 men who were executed there.

Over the years, I was given six execution dates, but all of them were delayed until finally my appeals were exhausted. The seventh — and last — date was set for May 20, 1999. My lawyers had been with me for 11 years by then; they flew in from Philadelphia to give me the news. They didn’t want me to hear it from the prison officials. They said it would take a miracle to avoid this execution. I told them it was fine — I was innocent, but it was time to give up.

But then I remembered something about May 20. I had just finished reading a letter from my younger son about how he wanted to go on his senior class trip. I’d been thinking about how I could find a way to pay for it by selling my typewriter and radio. “Oh, no, hold on,” I said, “that’s the day before John Jr. is graduating from high school.” I begged them to get it delayed; I knew it would hurt him.

To make things worse, the next day, when John Jr. was at school, his teacher read the whole class an article from the newspaper about my execution. She didn’t know I was John Jr.’s dad; she was just trying to teach them a lesson about making bad choices. So he learned that his father was going to be killed from his teacher, reading the newspaper aloud. I panicked. I needed to talk to him, reassure him.

Amazingly, I got a miracle. The same day that my lawyers visited, an investigator they had hired to look through the evidence one last time found, on some forgotten microfiche, a report sent to the prosecutors on the blood type of the perpetrator of the armed robbery. It didn’t match mine; the report, hidden for 15 years, had never been turned over to my lawyers. The investigator later found the names of witnesses and police reports from the murder case that hadn’t been turned over either.

As a result, the armed robbery conviction was thrown out in 1999, and I was taken off death row. Then, in 2002, my murder conviction was thrown out. At a retrial the following year, the jury took only 35 minutes to acquit me.

The prosecutors involved in my two cases, from the office of the Orleans Parish district attorney, Harry Connick Sr., helped to cover up 10 separate pieces of evidence. And most of them are still able to practice law today.

Why weren’t they punished for what they did? When the hidden evidence first surfaced, Mr. Connick announced that his office would hold a grand jury investigation. But once it became clear how many people had been involved, he called it off.

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

John Thompson is the director of Resurrection

After Exoneration, a support group for exonerated inmates.

The Prosecution Rests, but I Can’t, NYT, 9.4.2011
http://www.nytimes.com/2011/04/10/opinion/10thompson.html

Death Penalty Down in U.S.,

Figures Show

December 21, 2010
The New York Times
By JOHN SCHWARTZ

States are continuing a trend of executing fewer prisoners and juries are wary of sentencing criminal defendants to die, according to year-end figures compiled by a group that opposes the death penalty.

The 46 executions in 2010 constituted a nearly 12 percent drop from the previous year’s total of 52, according to the group, Death Penalty Information Center, which produces an annual report on execution trends. The overall trend shows a marked drop when compared with the 85 executions in 2000.

Jurors, too, show a continuing preference for the alternative of punishing criminal defendants with sentences of life without parole. Juries handed out 114 death sentences in 2010, slightly higher than the 112 death sentences last year, and 50 percent fewer for the current decade than in the 1990s — before the widespread availability of life without parole sentences for juries in capital cases.

“There’s just a whole lot more concern about the accuracy of the death penalty, the fairness and even the costs — all are contributing,” said Richard C. Dieter, the author of the report and the executive director of the center, which is in Washington. The availability of the alternative to the death penalty, Mr. Dieter said, also means that “prosecutors know it’s going to be a harder sell and are seeking it less.”

The states continue to condemn far more prisoners to death than they actually execute.

There are 3,261 people on death row in the United States; California has the largest population, with 697, while New Hampshire and Wyoming have one apiece. A majority of Americans support the death penalty, with 64 percent of those surveyed by Gallup in October 2010 favoring it and 29 percent opposed.

One contributing factor in the low number of executions nationwide is the shortage of a drug used for executions — they were postponed or canceled in Arkansas, California, Kentucky, Oklahoma and Tennessee.

Hospira, the company that makes sodium thiopental, the drug, has said that it expects to resume production in the first quarter of 2011.

The legal director of a group that supports the death penalty, Kent S. Scheidegger, said Mr. Dieter’s group had interpreted facts selectively. Mr. Scheidegger, of the Criminal Justice Legal Foundation, said that at least half the drop in death sentences could be attributed in part to a smaller number of murders in recent years, a fact that he and his group argue is a result of the nation’s high rates of incarceration.

Death Penalty Down in U.S., Figures Show, NYT, 21.12.2010, http://www.nytimes.com/2010/12/21/us/21penalty.html

Ex-Justice Criticizes Death Penalty

November 27, 2010
The New York Times
By ADAM LIPTAK

WASHINGTON — In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.

He will be on “60 Minutes” on Sunday night.

Earlier this month, he weighed in on the controversy over the proposed Islamic center near ground zero in a speech to the National Japanese American Memorial Foundation.

During World War II, Justice Stevens served as a Navy cryptographer at Pearl Harbor for more than two years. On returning to Hawaii in 1994, he said he had an emotional reaction to seeing Japanese tourists at a memorial there. “We shouldn’t allow them to celebrate their attack on Pearl Harbor,” he remembered thinking.

He added that he understood why some New Yorkers would have a similar reaction to the proposed Islamic center near ground zero.

“But then, after a period of reflection, some of those New Yorkers may have second thoughts, just as I did,” he went on. “The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11.”

The two other retired justices have been active, too, but they have largely limited their public comments to more traditional matters like judicial independence and constitutional interpretation. Justice Sandra Day O’Connor, who is 80, speaks frequently on what she says are the problems inherent in electing state court judges.

Justice David H. Souter, 71, in a commencement address in May at Harvard, gave a detailed critique of the mode of constitutional interpretation associated with Justices Antonin Scalia and Clarence Thomas, who rely on the text and original meaning of the Constitution.

Justice Souter said those tools are inadequate given the “open-ended language” in the Constitution, which, moreover, “contains values that may well exist in tension with each other.”

But that sort of abstract discussion is nothing like the blow-by-blow critique in Justice Stevens’s death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

The essay is actually a review of the book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions.

Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.

In discussing the book, Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.

With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.

In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens did not name those new justices. One was Justice Anthony M. Kennedy, lately the court’s swing justice, who replaced Justice Powell.

The other was Justice Souter, who replaced Justice Brennan and in other cases generally voted with Justice Stevens and the rest of the court’s more liberal wing.

Justice Stevens also had harsh words for the 5-to-4 decision in 1987 in McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution. He said the decision effectively allowed “race-based prosecutorial decisions.”

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.

The problems with the administration of capital punishment extend beyond the courthouse and into the voting booth, Justice Stevens said.

“Local elections affect decisions of state prosecutors to seek the death penalty and of state judges to impose it,” he wrote.

He was also critical of decisions allowing prosecutors to exclude jurors with qualms about the death penalty, tilting the legal playing field toward conviction. The better approach, he said, is one in which “a jury composed of 12 local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community — would determine individual defendants’ fates.”

Robert B. Silvers, the editor of The New York Review of Books, said the idea of asking Justice Stevens to contribute occurred to him after he read passages from the justice’s dissent in Citizens United, the January decision that lifted restrictions on campaign spending.

“It was clear that he was a very strong writer,” Mr. Silvers said. “We simply sent him the book, and we got back a letter saying he’d be delighted to review it.”

Ex-Justice Criticizes Death Penalty, NYT, 27.11.2010,
http://www.nytimes.com/2010/11/28/us/28memo.html

No Justification

October 28, 2010
The New York Times

Two years ago, when a splintered Supreme Court approved lethal injection as a means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy. Instead of ending the controversy, he said, the ruling would raise questions “about the justification for the death penalty itself.” Since then, evidence has continued to mount, showing the huge injustice of the death penalty — and the particular barbarism of this form of execution.

In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.

Of the 35 states that allow the death penalty, all now execute by lethal injection. Most use a sequence of drugs that is supposed to provide a painless death, but when it is administered incorrectly it causes agony that amounts to torture. Veterinarians say the method doesn’t meet the standard for euthanizing animals.

Arizona’s plan for Mr. Landrigan’s execution was thrown off by a shortage of sodium thiopental, one of three drugs used in standard lethal injections. The only maker approved by the Food and Drug Administration hasn’t been able to get a critical ingredient for almost a year. The state obtained the drug from a foreign maker.

When Mr. Landrigan tried to ascertain its effectiveness for sedating him so he wouldn’t feel the pain of the other drugs, Arizona refused to divulge the information. After the state defied four orders from a federal district judge to produce it, the judge stayed the execution.

When the case got to the Supreme Court, the majority overturned the stay, saying there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” There was no evidence — either way — because Arizona defied orders to provide it.

The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution. Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently said, “Mr. Landrigan would not have been sentenced to death” if she had been given the medical evidence of the defendant’s brain damage and other factors. Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.

She no longer had the power to alter his fate, but, in an affidavit for the Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his death sentence commuted to life. “Since the courts have not corrected this injustice,” she stated, “I am compelled to submit this declaration on Mr. Landrigan’s behalf.” The Supreme Court should have upheld the stay of execution and forced the state to deliver the information called for. It failed, shamefully.

No Justification, NYT, 28.10.2010,
http://www.nytimes.com/2010/10/29/opinion/29fri1.html

Woman, 41, Is Executed in Virginia

September 23, 2010
The New York Times
By ANAHAD O’CONNOR

A woman convicted of orchestrating a plot that led to the murders of her husband and stepson was executed in Virginia Thursday night, becoming the first woman executed in the state in almost a century.

The woman, Teresa Lewis, 41, died by lethal injection at a correctional facility in southeastern Virginia. With a crowd of death penalty opponents protesting outside, Ms. Lewis was pronounced dead at 9:13 p.m., the Associated Press reported, citing officials at the Greensville Correctional Center in Jarratt. She was the 12th woman executed in the United States since the death penalty was reinstated in 1976.

The case against Ms. Lewis, the first woman executed in the country since 2005, had drawn international attention. Many of her supporters questioned the fairness of her sentence — her co-conspirators, who fired the fatal shots, were spared capital punishment — and doubts were raised about her mental capacity. Psychologists involved in her case said she was borderline retarded. And her supporters argued that she had been manipulated by the two triggermen, who stood to gain hundreds of thousands of dollars in savings and life insurance payoffs.

Ms. Lewis received support from an unlikely cast. The novelist John Grisham published an op-ed piece calling for leniency, and the European Union sent a letter to Robert F. McDonnell, the governor of Virginia, asking him to commute Ms. Lewis’s sentence to life because of her mental capacities. The case was also cited by Iranian President Mahmoud Ahmadinejad in a speech to Islamic clerics during a visit to New York this week.

Shortly after her execution, a lawyer for Ms. Lewis, Jim Rocap, called her death "a tragic loss."

“Tonight, the machinery of death in Virginia extinguished the beautiful, childlike and loving human spirit of Teresa Lewis," he said. "Teresa asked that I send her thanks and love to all of those who have supported her in this fight for her life. In her words, ’It’s just awesome.’ It is our hope that Teresa’s death will cause a re-examination of the badly broken system of justice that could allow something as wrong and unjust as this to happen.”

For her part, Ms. Lewis did not deny her involvement in the murders, which took place in October 2002. Prosecutors said Ms. Lewis hatched the murders with two men she had been sleeping with. They said she supplied them with money to buy the murder weapons and showered them with gifts.

On the night before Halloween, they said, Ms. Lewis left the doors of her home unlocked and got into bed as her conspirators entered the home. According to the authorities, Ms. Lewis stood by as the two men opened fire: first on her stepson, Charles J. Lewis, 25, a reservist about to be deployed, and then on her husband, Julian C. Lewis Jr., 51.

Ms. Lewis eventually confessed to the crimes and led the police to the gunmen. The judge presiding over the case, Charles J. Strauss of Pittsylvania Circuit Court, sentenced the two gunmen to life in prison. But Ms. Lewis, he concluded in 2003, had been the ringleader, showing a “depravity of mind” that justified the death penalty.

Lawyers for Ms. Lewis later revealed new evidence that pointed to one of the gunmen as the plot’s mastermind, including statements that he made in a letter and to a girlfriend. Ms. Lewis’s lawyers pleaded unsuccessfully for clemency. Her final, last-ditch appeal for a stay was turned down by the Supreme Court late Tuesday.

According to SkyNews, Ms. Lewis requested a last meal of fried chicken, a slice of German chocolate cake or apple pie, and Dr. Pepper soda. According to reports from the prison, her final words were a message for her stepdaughter.

“I just want Cathy to know that I love her and I’m very sorry,” she said.

Woman, 41, Is Executed in Virginia, NYT, 23.9.2010,
http://www.nytimes.com/2010/09/24/us/24execute.html

Death Sentences Dropped,

but Executions Rose in ’09

December 18, 2009
The New York Times
By JOHN SCHWARTZ

More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report.

Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment.

“This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group.

The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Mr. Wisner said that while polls showed continued general support for capital punishment, “there is a real worry by jurors of, ‘I believe in it, but what if we later find out it was someone else and it’s too late to do anything about it?’ ”

In 2005, Texas juries were given the option of sentencing defendants to life without parole.

While death sentences are in decline, executions rose in the past year, according to the new report. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

The report also noted that in 2009 New Mexico became the 15th state to repeal the death penalty, in part because of budget considerations and the high cost of death penalty appeals, which Gov. Bill Richardson called “a valid reason” for eliminating the ultimate sanction “in this era of austerity and tight budgets.”

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment, argued that the decline in death sentences also corresponded to a decline in the murder rate, and criticized efforts to use cost arguments against the death penalty. The government could “knock a large chunk off of the cost” of execution by streamlining the review process, he said.

Douglas A. Berman, an expert on sentencing law at Ohio State University, suggested that the rise in executions was due to last year’s relatively low number, as states grappled with the implications of a major 2008 Supreme Court decision on lethal injection.

In that case, Baze v. Rees, the court ended what amounted to a moratorium of several months, beginning in 2007, on lethal injection executions by proclaiming that the procedure used in Kentucky and other states with similar methods did not violate the constitutional prohibition against cruel and unusual punishment.

This “post-Baze echo” in the figures, Mr. Berman said, can be seen in the execution in Ohio this month of Kenneth Biros. It came after a legal challenge to Ohio’s protocol, a botched execution under the state’s three-drug method for another prisoner, and a shift to a one-drug execution method. While other court challenges to lethal injection are proceeding around the country, he said, Ohio’s action suggests that “states are moving forward.”

Death Sentences Dropped, but Executions Rose in ’09, NYT, 18.12.2009,
http://www.nytimes.com/2009/12/18/us/18death.html

New Execution Method

Is Used in Ohio

December 9, 2009
The New York Times
By IAN URBINA

Ohio prison officials executed a death row inmate, Kenneth Biros, Tuesday with a one-drug intravenous lethal injection, a method never before used on a human.

The new method, which involved a large dose of anesthesia, akin to how animals are euthanized, has been hailed by most experts as painless and an improvement over the three-drug cocktail used in most states, but it is unlikely to settle the debate over the death penalty.

While praising the shift to a single drug, death penalty opponents argue that Ohio’s new method, and specifically its backup plan of using intra-muscular injection, has not been properly vetted by legal and medical experts and that since it has never been tried out on humans before, it is the equivalent of human experimentation.

But the United States Supreme Court refused to intervene on Tuesday morning, and the procedure went largely as planned.

Mr. Biros, 51, died at 11:47 a.m., holding a white scarf. The scarf, which symbolizes a blessing, was given to Mr. Biros by two Buddhist spiritual advisers that Mr. Biros had consulted in recent weeks.

Ohio became the first state to adopt the one-drug method after prison officials postponed an execution in September. During that execution attempt, they could not find a usable vein to inject three chemicals in the inmate, Romell Broom, 53, who was convicted of the 1984 abduction, rape and murder of a 14-year-old girl.

Mr. Biros was convicted of killing Tami Engstrom, 22, near Warren, in northeastern Ohio, in 1991 after offering to drive her home from a bar, then scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage.

Ms. Engstrom’s mother, brother and sister attended the execution, as did one of Mr. Biros’s lawyers, John Parker, and two of Mr. Biros’s friends.

As Ms. Engstrom’s family members entered the prison Tuesday, a reporter asked if they were ready. “We’ve been ready for 18 years,” one of the Engstroms said, according to The Columbus Dispatch.

Shortly before the execution, Mr. Biros gave his personal belongings — seven CDs, an address book, a portable CD player, a rosary and a notebook — to his siblings.

It was the second trip to the holding cell for Mr. Biros, who spent a day and night there in March 2007 as his lawyers scrambled to halt his execution. The Supreme Court intervened that time because of challenges over the use of the three-drug cocktail.

Opponents of the death penalty have long argued that using a single drug is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.

Still, death penalty opponents criticized the state for not allowing more time for closer scrutiny of the new protocol.

“The key is due process,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. He said that, for example, when New York introduced the electric chair in 1890, the case went to the Supreme Court, which decided that the punishment might be more humane than hanging.

“The court held that death row prisoner received due process because the New York Legislature had considered the punishment method carefully,” he added. “In this case, however, everyone has taken the Ohio Department of Corrections at their word, without an adversarial debate.”

Deborah W. Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, added that she believed the constitutionality of the new state protocol could be challenged if it is found not to be “substantially similar” to the three-drug method used by the state of Kentucky, which the court approved last year.

A federal judge in Ohio disagreed, however, and on Monday he denied a request from Mr. Biros to delay his execution until lawyers could conduct a review of the new protocol.

The judge, Gregory L. Frost of United States District Court, said that Mr. Biros had not demonstrated “at this juncture” that the new protocol is unconstitutional.

But the judge also said “It does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practice rise to a constitutional error.”

On Monday night, Mr. Biros’s lawyers filed an emergency request with the Supreme Court asking for his execution to be stopped.

Tim Sweeney, one of Mr. Biros’s lawyers, said that while the shift to a single-drug cocktail was a positive development, many concerns remained.

The state still relies on unqualified executioners who may not know how to find a usable vein, and the new protocol does not clearly set a limit on how long prison officials will keep sticking the patient with a needle if veins are collapsed before they transition to the backup plan, he said. The drug used in the backup plan has demonstrated side effects — nausea, vomiting, severe disorientation — which may make the experience more painful than prison officials realize, he added.

Mr. Biros was moved to the holding area for death row inmates about 15 feet from the death chamber at the Southern Ohio Correctional Facility in Lucasville on Monday morning, prison officials said.

In the afternoon, he had a snack of peanut butter and jelly sandwiches. At night, he was to be served a meal of cheese pizza, onion rings, fried mushrooms, Doritos chips, French onion dip, blueberry ice cream, cherry pie and Dr Pepper soda, they said.

On Tuesday, Mr. Biros received communion and seemed calm as he awaited his fate, prison officials said.

New Execution Method Is Used in Ohio, NYT, 9.12.2009,
http://www.nytimes.com/2009/12/09/us/09ohio.html

One Reporter’s Lonely Beat,

Witnessing Executions

October 21, 2009
The New York Times
By RICHARD PÉREZ-PEÑA

Of all the consequences of shrinking newsrooms, one of the oddest is this: Fewer journalists are available to watch people die. But Michael Graczyk has witnessed more than 300 deaths, and many of those were people he had come to know.

An Associated Press reporter based in Houston, Mr. Graczyk covers death penalty cases in Texas, the state that uses capital punishment far more than any other, and since the 1980s, he has attended nearly every execution the state has carried out — he has lost track of the precise count. Whenever possible, he has also interviewed the condemned killers and their victims’ families.

What makes his record all the more extraordinary is that often, Mr. Graczyk’s has been the only account of the execution given to the world at large. Covering executions was once considered an obligatory — if often ghoulish — part of what a newspaper did, like writing up school board meetings and printing box scores, but one by one, such dutiful traditions have fallen away.

A generation ago, he had plenty of company from other journalists at the prison at Huntsville, about an hour’s drive north of Houston, where executions in Texas are carried out. But then Texas executions went from rare to routine, and shrinking news organizations found it harder to justify the expense of what was, from most parts of the state, a long trip.

“There are times when I’m the only person present who doesn’t have a stake in the outcome,” he said.

Seeing inmates in the death chamber, strapped to a gurney and moments away from lethal injections, he has heard them greet him by name, confess to their crimes for the first time, sing, pray and, once, spit out a concealed handcuff key. He has stood shoulder to shoulder with other witnesses who stared, wept, fainted, turned their backs or, in one case, exchanged high-fives.

No reporter, warden, chaplain or guard has seen nearly as many executions as Mr. Graczyk, 59, Texas prison officials say. In fact, he has probably witnessed more than any other American. It could be emotionally and politically freighted work, but he takes it with a low-key, matter-of-fact lack of sentiment, refusing to hint at his own view of capital punishment.

Given a choice between the death chamber’s two viewing rooms, he usually chooses the one for the victim’s family rather than the side for the inmate’s, partly “because I can get out faster and file the story faster.”

“My job is to tell a story and tell what’s going on, and if I tell you that I get emotional on one side or another, I open myself to criticism,” he said.

The A.P. attends every execution, a policy that newspapers around the state encourage.

“Our staff is half the size it was three years ago, and so it’s just much more difficult to send somebody,” said Jim Witt, executive editor of The Fort Worth Star-Telegram. “But we know we can depend on The A.P., so I can send my reporters to something else.”

Newspapers sometimes use The A.P.’s reporting rather than their own — or they do not cover the executions at all. What was once a statewide story has become of strictly local interest.

A few papers, like The Houston Chronicle, still routinely cover executions in cases from their home counties, but not those from other parts of the state. Only one paper regularly covers executions no matter which part of the state the cases come from: The Huntsville Item, a small publication based near the prison.

This year, the state has put to death five inmates in cases from Tarrant County, which includes Fort Worth. The Star-Telegram covered one, wrote about two other cases in the days before the executions, and on the remaining two did not publish any articles, either its own or The A.P.’s.

“It depends on whether the crime was particularly newsworthy,” Mr. Witt said.

This year, a case from El Paso County resulted in an execution for that county for the first time in 22 years, but rather than send a reporter to Huntsville, some 650 miles away, The El Paso Times quoted extensively from Mr. Graczyk’s report.

“We actually put in to attend that one, and we were granted a spot, but when the editors explained the case to me, and the local connection was minimal, I said it wasn’t a compelling enough case,” said Chris V. Lopez, editor of The Times.

He said the expense of traveling to Huntsville was not a major consideration, but “it has to be a case that has a lot of local impact,” adding that the paper plans to attend a scheduled execution in a more prominent case.

Mr. Graczyk, who also writes on a wide range of other topics, developed his unusual specialty in the mid-1980s, a few years after Texas resumed executions after a long hiatus. He often covers the crimes, the trials and the appeals, immersed in details so gruesome it is hard to imagine they are real.

At first there were just a handful of executions each year, but the pace of capital punishment in Texas stepped up sharply through the next decade. The state has put 441 inmates to death since 1982, more than the next six states combined. That includes 334 since the start of 1997, a period in which Texas accounted for 41 percent of the national total.

“The act is very clinical, almost anticlimactic,” Mr. Graczyk said. “When we get into the chamber here in Texas, the inmate has already been strapped to the gurney and the needle is already in his arm.”

Witnesses are mostly subdued, he said, and while “some are in tears, outright jubilation or breakdowns are really rare.”

They stand on the other side of a barrier of plexiglass and bars, able to hear the prisoner through speakers. And the only sound regularly heard during the execution itself, is of all things, snoring. A three-drug cocktail puts the inmate to sleep within seconds, while death takes a few minutes. Victims’ family members often remark that the killer’s death seems too peaceful.

But before the drugs flow, the inmate is allowed to make a last statement, giving Mr. Graczyk what even he acknowledges are some lasting, eerie memories.

One inmate “sang ‘Silent Night,’ even though it wasn’t anywhere near Christmas,” Mr. Graczyk said. “I can’t hear that song without thinking about it. That one really stuck with me.”

    One Reporter’s Lonely Beat, Witnessing Executions,
    NYT, 21.10.2009,
    http://www.nytimes.com/2009/10/21/business/
    media/21execute.html

Ohio Plans to Try Again

as Execution Goes Wrong

September 17, 2009
The New York Times
By BOB DRIEHAUS

CINCINNATI — The State of Ohio plans to try again next week to execute a convicted rapist-murderer, after a team of technicians spent two hours on Tuesday in an unsuccessful effort to inject him with lethal drugs.

This is the first time an execution by lethal injection in the United States has failed and then been rescheduled, according to Richard C. Dieter, executive director of the Death Penalty Information Center, in Washington.

The only similar case in modern times, Mr. Dieter said, occurred in Louisiana in 1946, when electric shock failed to kill a convicted murderer, Willie Francis. He was electrocuted the next year, after the United States Supreme Court ruled that executing a prisoner in the wake of a failed first attempt was constitutional.

Tuesday’s one-week postponement was ordered by Gov. Ted Strickland after he was alerted by the Ohio corrections department that technicians at the state prison in Lucasville, some 70 miles east of Cincinnati, had struggled for more than two hours to find a suitable vein in either the arms or the legs of the inmate, Romell Broom, 53.

In a log reviewed by The Associated Press, the executioners attributed their troubles to past intravenous drug use by Mr. Broom. Amanda Wurst, a spokeswoman for the governor, said that Mr. Broom had once told officials he had been an IV drug user but that he had later recanted. His lawyers said they were not aware of any IV drug use.

Mr. Broom was convicted of the 1984 abduction, rape and killing of Tryna Middleton, 14, who had been walking home from a football game in Cleveland with two friends.

His lawyers described what happened Tuesday as torture and said they would try to block the execution. One of them, Adele Shank, said: “He survived this execution attempt, and they really can’t do it again. It was cruel and unusual punishment.”

Ms. Shank watched Tuesday’s procedure on closed-circuit television. “I could see him on the screen,” she said, “and it was apparent to me that he was wincing with pain.”

The Ohio chapter of the American Civil Liberties Union said Wednesday that the state must abolish lethal injection.

“This is the third screwed-up execution in three years,” said Jeffrey M. Gamso of the A.C.L.U. of Ohio. “They keep tweaking their protocol, but it takes more than tweaks. They don’t know how to do this competently, and they need to stop.”

In referring to two previous troubled executions in Ohio, Mr. Gamso was speaking of the death of Joseph Clark in 2006, delayed more than an hour because of problems with IV placement, and the 2007 execution of Christopher Newton, also delayed more than an hour while technicians tried at least 10 times to insert the IV.

The director of the state corrections department, Terry J. Collins, said he and his staff were seeking the advice of doctors and others to plan for a successful execution next Tuesday.

“I won’t have discussions about ‘what if it doesn’t work next week’ at this point,” Mr. Collins said, “because I have confidence that my team will be able to do its job.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said problems with veins were inevitable in lethal injection by IV.

Mr. Scheidegger said he favored execution methods involving intramuscular injection or a return to gas chambers, but with a poison other than cyanide, which was long under attack because of the suffering it can inflict.

Mr. Dieter, of the Death Penalty Information Center, said that given the likelihood of legal appeals, there was little chance that Mr. Broom would be put to death next Tuesday.

“The question of whether this is still an acceptable punishment in our society,” he said of executions generally, “is compounded by this mistake.”

John Schwartz

contributed reporting from New York.

    Ohio Plans to Try Again as Execution Goes Wrong,
    NYT, 17.9.2009,
    http://www.nytimes.com/2009/09/17/us/17ohio.html

Op-Ed Columnist

Innocent but Dead

September 1, 2009
The New York Times
By BOB HERBERT

There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.

In other words, it was an accident. No crime had occurred.

Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

It was inevitable that some case in which a clearly innocent person had been put to death would come to light. It was far from inevitable that this case would be the one. “I was extremely skeptical in the beginning,” said the New Yorker reporter, David Grann, who began investigating the case last December.

The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.

Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

There was no reason to believe at first that the fire was anything other than a horrible accident. But fire investigators, moving slowly through the ruined house, began seeing things (not unlike someone viewing a Rorschach pattern) that they interpreted as evidence of arson.

They noticed deep charring at the base of some of the walls and patterns of soot that made them suspicious. They noticed what they felt were ominous fracture patterns in pieces of broken window glass. They had no motive, but they were convinced the fire had been set. And if it had been set, who else but Willingham would have set it?

With no real motive in sight, the local district attorney, Pat Batchelor, was quoted as saying, “The children were interfering with his beer drinking and dart throwing.”

Willingham was arrested and charged with capital murder.

When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.

And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.

The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.

He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.

The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.

Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Grann told me on Monday that when he recently informed the jailhouse snitch, Johnny Webb, that new scientific evidence would show that the fire wasn’t arson and that an innocent man had been killed, Webb seemed taken aback. “Nothing can save me now,” he said.

Innocent but Dead, NYT, 1.9.2009,
http://www.nytimes.com/2009/09/01/opinion/01herbert.html

In ’98,

Hints From Sotomayor

on Death Penalty

June 25, 2009
The New York Times
By BENJAMIN WEISER

As a drug kingpin and his bodyguard, both black, faced the first death penalty trial in Manhattan since the days of the Rosenbergs, their lawyers argued that the practice of capital punishment was racist.

“We’re doing what the death penalty has always done historically, which is target minority people,” one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional.

That judge was Sonia Sotomayor — a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved “tensions” surrounding the death penalty.

But she flatly told the lawyers she had no power to resolve them. “I don’t as a judge,” she said. “They are not up to me. Ultimately, they are up to Congress and the Supreme Court.”

Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.

The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly — and weighing the lives of two men.

The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.

She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.

“We gave her enough ammunition that she could have struck down the death penalty,” recalled David A. Ruhnke, a defense lawyer in the case. “Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it — had she wanted to reach out and do it — and she didn’t.”

In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some two years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.

But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.

At one point, pressed by defense lawyers to resolve the death penalty’s inequities, she advised them to be careful what they wished for.

“As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That’s as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity.”

Judge Sotomayor, who turns 55 on Thursday, has spoken very little publicly about the death penalty during her long career, which included about five years as an assistant district attorney in Manhattan. But conservatives who oppose her nomination have seized on a 1981 internal memo signed by her and two other directors of the Puerto Rican Legal Defense and Education Fund recommending that the organization oppose restoration of the death penalty in New York State.

The memo said capital punishment was “associated with evident racism in our society” and cited statistics to show that “the number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population.”

Seventeen years later, she heard a similar argument on behalf of two defendants charged with multiple murders: Clarence Heatley, who led a multimillion-dollar crack-cocaine operation based in the Bronx, and his bodyguard, John Cuff, a former New York City housing police officer.

In 1997, Mary Jo White, the United States attorney in Manhattan, received authorization from Attorney General Janet Reno to seek the death penalty against both men. Congress had reinstituted the federal death penalty in recent years, and Ms. White’s office had considered a dozen other cases before settling on Mr. Heatley’s and Mr. Cuff’s.

Before the men could be tried, however, Judge Sotomayor had to consider their lawyers’ challenge to the law. They presented data showing that since 1988, the federal government had authorized 119 capital cases, with 79 percent involving minority defendants. Of the 16 men who had been sentenced to death, 13 were members of minorities.

But the judge agreed with prosecutors that the numbers alone did not prove discrimination in this case. The high percentage of minority defendants, she said, “tells me nothing about the pool from which that number comes from.” She said the defense had to offer more — “some actual proof of discrimination besides statistical evidence, because it can be manipulated.”

The defense had, indeed, tried to get more evidence, asking the judge to order the government to produce information on federal defendants across the country who had been considered for capital punishment, and on how each decision had been reached.

Judge Sotomayor balked. “The only way that we can end up with your getting anything that would be admissible,” she said, “is if we literally redid all of the deliberative processes in every single case that was eligible for the death penalty.”

Ultimately, she agreed to order data on the racial and ethnic composition of the pool of defendants.

“I would like to see the numbers myself,” she said. “I do agree with you that the death population in the federal system is so disparately different from the general population that one look more should be done, at least an initial inquiry.”

The judge also seemed open to the idea of allowing the defense, during a possible future sentencing hearing, to tell the jury that other murderers had been spared the death penalty.

She said: “You can very well see a potential argument by the defense that says, If Joe Blow, who kills his wife, 10 children, his mother, and didn’t get the death penalty, why should my client? Why shouldn’t society put to death murderers of more heinous crimes? These are drug dealers killing drug dealers.”

Judge Sotomayor was not shy about asserting a personal opinion. She allowed that in the past five years, she had noticed “a sea change” in Manhattan federal prosecutors’ handling of the death penalty — an apparent reference to an increase in cases considered for capital punishment and new policies on how such decisions were made. But she dismissed the defense’s claim that racial bias was the cause.

“It may be based on politics,” she said, “since it’s the only explanation that could justify the sea change. But I have no basis to believe, in what you presented me with or otherwise, that it’s based on race.”

Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be two executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on one point, she cautioned that his approach could lead to a reversal of any verdict.

“Remember two things,” she told him. “A conviction is important. Surviving conviction is more important.”

She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.

Mr. Ruhnke, the defense lawyer, had suggested that in 50 years there might not be a death penalty. He asserted that the Supreme Court almost struck down capital punishment in a 1987 case involving racial disparities. The author of the 5-to-4 ruling, Justice Lewis F. Powell Jr., later said he regretted his vote.

“It was that close to being no death penalty,” Mr. Ruhnke said.

Judge Sotomayor suggested that the Supreme Court of 1998 was even less likely to overturn the penalty than the court had been in 1987.

“Unfortunately for your client, regardless of what the makeup of the decision-making will be 50 years from now, in the short run,” she said, the death penalty “will still be here.”

    In ’98, Hints From Sotomayor on Death Penalty,
    NYT, 25.6.2009,
    http://www.nytimes.com/2009/06/25/us/politics/25death.html

Op-Ed Contributor

Death Penalty Disgrace

June 1, 2009
The New York Times
By BOB BARR

THERE is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

This threat of injustice has come about because the lower courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, a law I helped write when I was in Congress. As a member of the House Judiciary Committee in the 1990s, I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

With the effective death penalty act, Congress limited the number of habeas corpus petitions that a defendant could file, and set a time after which those petitions could no longer be filed. But nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis’s.

It would seem in everyone’s interest to find out as best we can what really happened that night 20 years ago in a dim parking lot where Officer Mark MacPhail was shot dead. With no murder weapon, surveillance videotape or DNA evidence left behind, the jury that judged Mr. Davis had to weigh the conflicting testimony of several eyewitnesses to sift out the gunman from the onlookers who had nothing to do with the heinous crime.

A litany of affidavits from prosecution witnesses now tell of an investigation that was focused not on scrutinizing all suspects, but on building a case against Mr. Davis. One witness, for instance, has said she testified against Mr. Davis because she was on parole and was afraid the police would send her back to prison if she did not cooperate.

So far, the federal courts have said it is enough that the state courts reviewed the affidavits of the witnesses who recanted their testimony. This reasoning is misplaced in a capital case. Reading an affidavit is a far cry from seeing a witness testify in open court.

Because Mr. Davis’s claim of innocence has never been heard in a court, the Supreme Court should remand his case to a federal district court and order an evidentiary hearing. (I was among those who signed an amicus brief in support of Mr. Davis.) Only a hearing where witnesses are subject to cross-examination will put this case to rest.

Although the Supreme Court issued a stay of execution last fall, the court declined to review the case itself, and its intervention still has not provided an opportunity for Mr. Davis to have a hearing on new evidence. This has become a matter of no small urgency: Georgia could set an execution date at any time.

I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.

Bob Barr

served in the House of Representatives

from 1995 to 2003

and was the United States attorney

for the Northern District of Georgia

from 1986 to 1990.

Death Penalty Disgrace, NYT, 31.5.2009,
http://www.nytimes.com/2009/06/01/opinion/01barr.html

Ethics Dilemma for Lawyers

When Inmates Seek Death

November 19, 2008
Filed at 2:42 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

LOUISVILLE, Ky. (AP) -- John Delaney faced the toughest moment of his legal career -- his condemned client wanted to drop his appeals and die by injection, an act Delaney opposed and had been trained to try to prevent.

''What do you say?'' asked Delaney, a public defender in northern Kentucky who represented Marco Allen Chapman.

It's a question that has arisen 131 times since states resumed executions in 1977, and each time it leaves defense lawyers struggling against their training to act in the best interest of their clients and justice.

''We're trained as lawyers to be an advocate for someone and fight as hard as we can,'' said Stephen Harris, a University of Baltimore law professor who represented execution volunteer John Thanos in Maryland in 1994. ''Here's someone who says, 'I don't want you,' then, 'I want to die.'''

The first volunteer after the U.S. Supreme Court reinstated the death penalty in 1976 was Gary Mark Gilmore, put to death a year later by a firing squad in Utah for killing a gas station attendant. The 128 men and two women who have followed suit often gave similar reasons -- mainly remorse, a desire for atonement and not wanting to spend their lives in prison -- according to the Death Penalty Information Center, an anti-capital punishment group that compiles statistics on executions.

About 12 percent of the 1,133 inmates executed in the U.S. since 1977 abandoned their appeals and asked for their sentences to be carried out, said Richard Dieter, executive director of the center and a law professor at Catholic University in Washington. Each time, the inmate either fired the defense lawyer or told them to stop filing appeals.

''It amounts to the same thing,'' Dieter said.

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law.

''Their hands are pretty well tied,'' Mello said. ''These are the cases that haunt you. This is the most hideous of cases.''

That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he wanted to die. Wells was convicted of beating a couple to death in 1990 in Idaho. He went through the mandatory appeals, then decided to waive any remaining legal options and was lethally injected in 1994.

''I really liked Keith,'' said Cahill, a public defender in Boise. ''You're just thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to do.'''

Harris, who opted not to try to talk Thanos into sticking with his appeals, said cases of death penalty volunteers always come with second thoughts, but knowing that a client went willingly to his execution is something attorneys just have to come to grips with.

''I don't know what was in his mind,'' he said. ''You always have regrets about that stuff. But I think I made the right decision.''

Chapman, 36, is to die Friday at the Kentucky State Penitentiary in Eddyville for killing a 7-year-old girl and her 6-year-old brother six years ago in a crack cocaine-fueled attack on a family for whom he'd worked as a handyman.

Delaney, 49, was assigned the case in 2004, and Chapman quickly made it clear that he didn't want a defense and didn't want his life spared. Chapman said at several court hearings and in letters to judges that he wanted to plead guilty and be sentenced to death.

To Delaney, Chapman's reasoning for dropping his appeals made sense on some level.

''Marc wanted to try to make amends to the family,'' Delaney said.

That didn't make it easy to step out of the way of Chapman's execution. Delaney repeatedly tried to get the inmate to at least let a jury determine what sentence to impose. He refused.

Delaney told Chapman to fire him before pleading guilty.

''I wasn't going to help him,'' Delaney said. ''He wasn't in left field for what he wants, though.''

A judge granted Chapman's request to dismiss Delaney and appointed him standby counsel in case Chapman changed his mind.

Delaney tells himself he did everything possible for his reluctant client.

If the execution goes through as scheduled Friday night, he said, he'll be having a drink and tell himself that at least one more time.

    Ethics Dilemma for Lawyers When Inmates Seek Death,
    NYT, 20.11.2008,
    http://www.nytimes.com/aponline/us/AP-Suicide-By-Court.html

FACTBOX:

The death penalty

in the United States

Wed Apr 16, 2008
10:48am EDT
Reuters

(Reuters) - The U.S. Supreme Court on Wednesday rejected a challenge to the lethal three-drug cocktail used in most U.S. executions during the past 30 years. This cleared the way for a resumption of executions halted since last September pending the court's decision.

Following are some facts and figures about the death penalty in the United States since 1977, when executions resumed following the lifting of a ban on the practice by the U.S. Supreme Court the previous year.

- There have been 1,099 executions in the United States since 1977. The peak year was 1999, when 98 were carried out while no inmates were put to death in 1978 and 1980.

- 42 people were executed in the United States in 2007, the lowest number since 1994 when 31 were put to death.

- 2005, the last year for which data is available, saw 128 death sentences imposed, the lowest number over the past three decades. The peak year was 1996 when 317 were handed down.

- The death penalty is sanctioned by 37 of the 50 states and the U.S. government and the military. Lethal injection is the main method used by all of the death penalty states except for Nebraska which uses the electric chair.

- The standard method involves administering three separate chemicals: sodium pentothal, an anesthetic to make the inmate unconscious; pancuronium bromide, which paralyzes all muscles except the heart; and then potassium chloride, which stops the heart, causing death.

- Texas has been by far the most active death penalty state in the post-1976 era with 405 executions. Virginia is a distant second at 98.

- Amnesty International this week issued a report that ranked the United States fifth in the world in the number of executions in 2007, behind China (470), Iran (317), Saudi Arabia (143), Pakistan (135). These five countries accounted for 88 percent of all known executions.

(Sources: Death Penalty Information Center,

Texas Department of Criminal Justice,

Amnesty International, Reuters)

(Reporting by Ed Stoddard,

editing by David Storey)

    FACTBOX: The death penalty in the United States,
    R, 16.4.2008,
    http://www.reuters.com/article/topNews/
    idUSN1634277620080416

Court Rules

Nebraska Electric Chair Not Legal

February 8, 2008
Filed at 12:26 p.m. ET
The New York Times
By THE ASSOCIATED PRESS

LINCOLN, Neb. (AP) -- The Nebraska Supreme Court ruled Friday that electrocution is cruel and unusual punishment, outlawing the electric chair in the only state that still used it as its sole means of execution.

In the landmark ruling, the court said the state Legislature may vote to have a death penalty, just not one that offends rights under the state constitution. The evidence shows that electrocution inflicts ''intense pain and agonizing suffering,'' it said.

''Condemned prisoners must not be tortured to death, regardless of their crimes,'' Judge William Connolly wrote in the 6-1 opinion.

''Contrary to the State's argument, there is abundant evidence that prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body,'' Connolly wrote.

In his dissent, Chief Justice Mike Heavican said he did not think electrocution was cruel and unusual.

The high court made the ruling in the case of Raymond Mata Jr., convicted for the 1999 killing and dismemberment of 3-year-old Adam Gomez of Scottsbluff, the son of his former girlfriend.

Investigators testified that parts of the toddler's body were found at Mata's home in a freezer, a dog bowl and dog-food bag. Human bone fragments also were recovered from the stomach of Mata's dog.

The court stressed that its ruling Friday did not strike down the death penalty -- just electrocution as the method. In fact, Mata's death sentence was affirmed by the high court.

That could leave lawmakers scrambling to approve another means of execution during this legislative session.

Attorney General Jon Bruning was not immediately available to comment about the state's next legal move.

Nebraska Solicitor General J. Kirk Brown had argued for the state that the legal standard a method of execution must meet is to minimize the risk of unnecessary pain, violence and mutilation, not eliminate it. He said electrocution meets that test.

But the high court said electrocution ''has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein'' than a state prison.

The use of the electric chair began to decline when Oklahoma adopted lethal injection in 1977, said Richard Dieter, executive director of the Death Penalty Information Center. As more states followed suit, it became more difficult to justify the electric chair, he said.

While Nebraska is the only state with electrocution as its sole method of execution, it is still an option or a backup method in nine other states: Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia.

All normally use lethal injection but have electrocution as an option if an inmate chooses it or in case state courts rule lethal injection unconstitutional, Dieter said.

------

Associated Press Writer Oskar Garcia in Omaha, Neb., contributed to this report

------

On the Net:

Read the opinion:

http://hosted.ap.org/specials/interactives/--documents/ne--sc--deathpenalty.pdf

Death Penalty Information Center: http://www.deathpenaltyinfo.org/

    Court Rules Nebraska Electric Chair Not Legal, NYT, 8.2.2008,
    http://www.nytimes.com/aponline/us/
    AP-Nebraska-Death-Penalty.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

TEXAS PENAL CODE

LAW OF PARTIES

PENAL CODE

CHAPTER 7.

CRIMINAL RESPONSIBILITY

FOR CONDUCT OF ANOTHER

SUBCHAPTER A. COMPLICITY

Sec. 7.01. PARTIES TO OFFENSES.

(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.03. DEFENSES EXCLUDED. In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

SUBCHAPTER B. CORPORATIONS AND ASSOCIATIONS

Sec. 7.21. DEFINITIONS. In this subchapter:
(1) "Agent" means a director, officer, employee, or other person authorized to act in behalf of a corporation or association.
(2) "High managerial agent" means:
(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who has duties of such responsibility that his conduct reasonably may be assumed to represent the policy of the corporation or association.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.22. CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. (a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:
(1) in this code where corporations and associations are made subject thereto;
(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or
(3) by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.
(b) A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:
(1) a majority of the governing board acting in behalf of the corporation or association; or
(2) a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.23. CRIMINAL RESPONSIBILITY OF PERSON FOR CONDUCT IN BEHALF OF CORPORATION OR ASSOCIATION. (a) An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.
(b) An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him.
(c) If an individual is convicted of conduct constituting an offense performed in the name of or on behalf of a corporation or association, he is subject to the sentence authorized by law for an individual convicted of the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.24. DEFENSE TO CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. It is an affirmative defense to prosecution of a corporation or association under Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 5, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

TEXAS PENAL CODE > LAW OF PARTIES,
added to Anglonautes 1 Septemlber 2007,
http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/word/
pe.002.00.000007.00.doc

June 20 1953

Rosenbergs executed

despite pleas

From The Guardian archive

June 20 1953

The Guardian

Julius and Ethel Rosenberg were executed early this morning at Sing Sing Prison for conspiring to pass atomic secrets to Russia in World War II.

Only a few minutes before, President Eisenhower had rejected a last plea written in her cell by Ethel Rosenberg. Mr Emanuel Bloch, the couple's lawyer, took the note to the White House where guards turned him away.

Neither of the two said anything before they died. The news of their execution was announced at 1.43 a.m.

Julius Rosenberg, aged 35, was the first to die. They were executed just before the setting sun heralded the Jewish Sabbath. Prison officials had advanced the execution time to spare religious feelings.

Mrs Rosenberg turned just before she was placed in the electric chair, drew Mrs Evans, the prison matron towards her, and they kissed. The matron was visibly affected. She quickly turned and left. In the corridor outside Rabbi Irving Koslowe could be heard intoning the 23rd Psalm.

The couple were the first civilians in American history to be executed for espionage. The last hope of reprieve for the Rosenbergs vanished early this afternoon when President Eisenhower rejected a final appeal for clemency. The President's decision was announced in the following statement: "I am convinced that the Rosenbergs have received the benefits of every safeguard which American justice can provide. Their original trial and the long series of appeals constitute the fullest measure of justice and due process of law. No Judge has ever expressed any doubt that they committed most serious acts of espionage.

"I am not unmindful of the fact that this case has aroused grave concern both here and abroad in the minds of serious people. I can only say that, by immeasurably increasing the chances of atomic war, the Rosenbergs may have condemned to death tens of mil lions of innocent people all over the world. I will not intervene."

[Outside Winston Churchill's country home] a deputation scribbled a note addressed "Dear P.M.," asking the Prime Minister to appeal direct "to President Eisenhower over the Transatlantic telephone immediately". They received a typewritten note saying: "It is not within my duty or my power to intervene in this matter. (Signed) Winston Churchill."

At one o'clock this morning in Manchester a crowd of two hundred stood quietly outside the offices of the "Manchester Guardian" waiting for news of the Rosenberg executions. A telegram sent earlier to the Queen had asked her to use her influence towards securing a reprieve.

From The Guardian archive,
June 20 1953,
Rosenbergs executed despite pleas,
G,
Republished 20.6.2007, p. 34,
http://digital.guardian.co.uk/guardian/2007/06/20/
pages/ber34.shtml