History > 2014 > USA > Justice > Death penalty (II)

Will Texas Kill an Insane Man?

 

NOV. 23, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was “scary” and “trance-like,” and called the trial “a judicial farce.”

It was not an act. Mr. Panetti, now 56, was first diagnosed with schizophrenia when he was 20, and in the years before the murders he was hospitalized several times for delusions and psychotic episodes.

In this respect, he is no different from the estimated 350,000 inmates around the country with mental illness — 10 times the number of people in state psychiatric hospitals. But Mr. Panetti is not just another insane prisoner; his name is synonymous with the Supreme Court’s modern jurisprudence about mental illness on death row. In Panetti v. Quarterman, decided in 2007, the justices held that it is not enough for a defendant simply to be aware that he is going to be executed and why — the previous standard the court had used in permitting the execution of the mentally ill. Rather, he must have a “rational understanding” of why the state plans to kill him.

Noting Mr. Panetti’s “well-documented history of mental illness,” the court held that capital punishment serves no retributive purpose when the defendant’s understanding of crime and punishment is so distorted that it “has little or no relation to the understanding of those concepts shared by the community as a whole.”

For example, Mr. Panetti understood that the state claimed the reason for his death sentence was the murder of his in-laws, but he believed the real reason was “spiritual warfare” between “the demons and the forces of the darkness and God and the angels and the forces of light.”

But the justices refused to set precise guidelines for determining whether someone is competent enough to be executed, and they did not overturn Mr. Panetti’s sentence. Instead, they sent the case back to the lower courts for a fuller reconsideration of his current mental state.

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty. The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”

Mr. Panetti has not had a mental-health evaluation since 2007. In a motion hastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse. For instance, he now claims that a prison dentist implanted a transmitter in his tooth.

The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.

On Nov. 19, a Texas court denied the lawyers’ motion. A civilized society should not be in the business of executing anybody. But it certainly cannot pretend to be adhering to any morally acceptable standard of culpability if it kills someone like Scott Panetti.


A version of this editorial appears in print on November 24, 2014, on page A28 of the New York edition with the headline: Will Texas Kill an Insane Man?.

    Will Texas Kill an Insane Man?, NYT, 23.11.2014,
    http://www.nytimes.com/2014/11/24/opinion/will-texas-kill-an-insane-man.html

What Will Doom the Death Penalty

Capital Punishment,

Another Failed Government Program?

SEPT. 8, 2014

The Opinion Pages | Op-Ed Contributor

The New York Times

By DANIEL LaCHANCE

ATLANTA — TO opponents of the death penalty, recent accounts of botched executions and DNA-based exonerations of death-row prisoners have revived hope that judges and voters will finally see capital punishment for what it is: an intolerable affront to human dignity.

But while such optimism is understandable, it is misplaced. Support for capital punishment is, in fact, in decline — but it’s less the result of a moral awakening on the part of the public than a symptom of a 40-year-plus process of disillusionment.

In 1972, the Supreme Court declared the death penalty unconstitutionally unfair, but left the door open for states to come up with new laws to remedy the arbitrary sentencing criteria it found troubling. Conservatives seized that opportunity to advance a broader agenda of reclaiming a government that, in their minds, had been captured by liberal elites — welfare-oriented bureaucracies and Earl Warren’s Supreme Court — that were intent on using big government to upend traditional values. The timing was right. Violent crime had been rising since the mid-1960s. More and more Americans wanted a government that would vanquish evil rather than manage it. The revival of capital punishment expressed a powerful moral clarity that “time off for good behavior” did not.

When it came to delivering punishment in a timely and dramatic fashion, moreover, the death penalty delivered the goods: As late as 1959, most of those executed spent less than two years on death row. Thus, as states created new death penalty laws, which the Supreme Court approved in 1976, few foresaw the degree to which federal oversight of capital cases would continue.

This, more than wrongful convictions and botched executions, is what is distinctive about the contemporary American death penalty. New layers of appeals and new issues to litigate at both the state and federal levels meant that inmates put to death in 2012 had waited an average of almost 16 years for their execution date. The deeply unsatisfying, decades-long limbo that follows a death sentence today is without precedent. The 3,054 men and women languishing on the nation’s death rows have become the unwitting cast of a never-ending production of “Waiting for Godot.”

A sense of moral solidarity is hard to generate when the devil appears in the execution chamber 20 years later, a middle-aged or elderly man whose crimes have long faded from popular memory. And it’s impossible to generate when he doesn’t appear in the execution chamber at all: A vast majority of those sentenced to death since 1977 were not, or have not yet been, executed.

Efforts to remedy the problem by reforming the appellate process have been unsuccessful. In 1996, when the average stay on death row was approaching 11 years, Congress enacted legislation restricting death-row inmates’ access to federal courts, in order to speed up executions. But it didn’t work; since then, the time between sentencing and execution has grown by over 50 percent.

The problem, it turns out, isn’t foot-dragging by defense lawyers or bleeding-heart judges. It’s money. In California, for instance, the low wages paid by the state to qualified lawyers who take on indigent inmates’ appeals have meant that there aren’t enough lawyers willing to do the work. Inmates wait an average of three to five years after sentencing for a government-appointed lawyer to handle their appeal. And that’s just the beginning of a process — sometimes lasting 25 years or more — that a federal judge recently determined was so protracted that it made capital punishment in California unconstitutionally cruel and unusual.

More money for defense lawyers would reduce the high error rates in capital trials and speed up appellate reviews. But it is unlikely to be forthcoming. The costs of capital trials and appeals overwhelm budgets everywhere, but particularly in places, like the South, where the political will to fund them is the weakest. It has simply become unsustainable to be both pro-death penalty and anti-taxation, as so many Americans are.

Delivering this message to voters, rather than a moralistic one, might change their thinking. A 2012 ballot measure to abolish the death penalty in California, the shrewdly named Savings Accountability and Full Enforcement for California campaign, appealed to voters’ wallets more than their hearts and came tantalizingly close to passing. Importantly, though, that near-win occurred after nearly seven years of no executions in the state, suggesting that it wasn’t just about the financial cost of the death penalty. It was about what that money had stopped delivering to taxpayers: the sense of control, closure and confidence that are the raison d’être of the death penalty.

As depressing as it may be to abolitionists driven by a commitment to human rights, Americans, most of whom are white and live above the poverty line, find it hard to sympathize with members of an indigent, mostly minority death-row population who have been convicted of horrible crimes. Preaching to the congregation rather than the choir, then, ought to focus on the failure of capital punishment to live up to the promise of retributive justice it once held.

Casual supporters of the death penalty can be made to recognize that the death penalty has become inextricably mired in the very bureaucracy and legalism it was once supposed to transcend, and that the only solutions to the problem — an elimination of appellate lawyers for death-row inmates or a financial bailout — are unlikely to be legal or feasible.

Resources for fighting the death penalty are scarce, and for too long, abolitionists have spent them appealing to the humanistic ideals they wished most Americans shared, instead of one they actually do: distrust of government. Arguing that the death penalty is an affront to human dignity just doesn’t work. But portraying it as another failed government program just might.
 

Daniel LaChance is an assistant professor of history at Emory University.

A version of this op-ed appears in print on September 9, 2014, on page A29 of the New York edition with the headline: What Will Doom the Death Penalty.

    What Will Doom the Death Penalty, NYT, 8.9.2014,
    http://www.nytimes.com/2014/09/09/opinion/
    what-will-finally-doom-the-death-penalty.html

The Innocent on Death Row

SEPT. 3, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

The exoneration of two North Carolina men who spent 30 years in prison — one on death row — provides a textbook example of so much that is broken in the American justice system. And it is further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.

In late September 1983, an 11-year-old girl named Sabrina Buie was found murdered in a soybean field in Robeson County. She had been raped, beaten with sticks and suffocated with her own underwear.

Within days, police got confessions from two local teenagers, Henry Lee McCollum, 19 at the time, and his half brother, Leon Brown, who was 15. Both were convicted and sentenced to death.

The crime was so horrific that it has echoed for decades through North Carolina politics and beyond. In 1994, after Justice Harry Blackmun of the Supreme Court announced that he opposed capital punishment in all circumstances, Justice Antonin Scalia cited the Buie murder as a case where it was clearly warranted. “How enviable a quiet death by lethal injection compared with that!” he wrote.

On Tuesday, a state judge ordered both men freed after multiple pieces of evidence, some of which had never been turned over to defense lawyers, proved that neither Mr. McCollum nor Mr. Brown was responsible for the crime. DNA taken from a cigarette found at the crime scene matched a different man, Roscoe Artis, who is already serving life in prison for a similar murder committed just weeks after Sabrina Buie’s killing.

Virtually everything about the arrests, confessions, trial and convictions of Mr. McCollum and Mr. Brown was polluted by official error and misconduct.

No physical evidence linked either man to the crime, so their false confessions, given under duress, were the heart of the case the prosecutors mounted against them. Both men’s confessions were handwritten by police after hours of intense questioning without a lawyer or parent present. Neither was recorded, and both men have maintained their innocence ever since.

Equally disturbing, Mr. Artis was a suspect from the start. Three days before the murder trial began, police requested that a fingerprint from the crime scene be tested for a match with Mr. Artis, who had a long history of sexual assaults against women. The test was never done, and prosecutors never revealed the request to the defense.

It was not until 2011 that the North Carolina Innocence Inquiry Commission, an independent state agency that had taken on the men’s case, discovered the old fingerprint request. The commission also found that multiple statements in the two confessions were inconsistent with each other and with the facts of the crime. In July, the commission finally got the full case file and matched the DNA to Mr. Artis.

None of these pieces mattered to the prosecution in 1984. The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned.

Mr. McCollum and Mr. Brown, who are now middle-aged, have a hard road ahead. In addition to the difficulties of adapting to life after three decades behind bars, both are intellectually disabled. (Since their conviction, the Supreme Court has banned the death penalty for both juveniles and those with intellectual disabilities.)

Cases of capital prosecutions based on flimsy evidence or marred by prosecutorial misconduct, not to mention racial bias, are distressingly common. Yet, even as death-penalty supporters insist that only guilty people are sent to their death, it is now clear that Justice Scalia was prepared 20 years ago to allow the execution of a man who, it turns out, was innocent.

How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.


A version of this editorial appears in print on September 4, 2014, on page A26 of the New York edition with the headline: The Innocent on Death Row.

    The Innocent on Death Row, NYT, 3.9.2014,
    http://www.nytimes.com/2014/09/04/opinion/the-innocent-on-death-row.html

Executed Arizona Inmate

Got 15 Times Standard Dose, Lawyers Say

AUG. 1, 2014

The New York Times

By FERNANDA SANTOS

PHOENIX — Lawyers for an inmate who was executed last month by lethal injection said Friday that his executioners injected him with 15 times the standard dose of a sedative and a painkiller during a procedure that lasted nearly two hours before their client was declared dead.

The execution of the inmate, Joseph R. Wood III, which was the fourth troubled one in the nation this year, renewed debate over the death penalty and prompted Arizona’s attorney general to order a temporary halt to executions in the state. The Arizona Department of Corrections announced Friday that it was seeking an outside investigator to conduct an independent inquiry into Mr. Wood’s execution.

Mr. Wood was executed on July 23 for the murders of his girlfriend and her father in 1989. He was injected with a two-drug combination of hydromorphone, an opioid painkiller that suppresses breathing, and midazolam, a sedative.

“The Arizona execution protocol explicitly states that a prisoner will be executed using 50 milligrams of hydromorphone and 50 milligrams of midazolam,” Dale A. Baich, one of the lawyers who represented Mr. Wood, said in a statement. “The execution logs released today by the Arizona Department of Corrections show that the experimental drug protocol did not work as promised.”

Referring to the corrections department, he added, “Instead of the one dose as required under the protocol, A.D.C. injected 15 separate doses of the drug combination, resulting in the most prolonged execution in recent memory.” Mr. Wood was injected with 750 milligrams of hydromorphone and 750 milligrams of midazolam in all.

Prison officials had estimated that it would take 10 minutes for the combination of drugs to kill Mr. Wood, but once a vein had been tapped and the drugs began to flow, it took an hour and 53 minutes before he was declared dead. Some witnesses to the execution said that Mr. Wood gasped — seemingly for air — more than 600 times as he died. Other witnesses disputed that account, and Arizona officials said that Mr. Wood was completely sedated and never suffered.

Mr. Baich, an assistant federal public defender, said that an independent investigation by a nongovernmental authority was needed.

The director of the Arizona Department of Corrections, Charles L. Ryan, said Friday that he had set in motion such an inquiry, starting with the search for an outside investigator to lead the effort.

“I am committed to a thorough, transparent and comprehensive review process,” Mr. Ryan said in a statement. “This will be an authoritative review to ensure that fact-based conclusions are reached regarding every aspect of this procedure, including the length of time it took for the execution to be lawfully completed.”

Mr. Ryan justified the use of repeated doses of the drugs by citing a state law authorizing “an intravenous injection of substance or substances in lethal quantity sufficient to cause death.”

Medical experts said the amount of the drugs used in Mr. Wood’s execution was unprecedented and its effect unknown. Joel Zivot, an assistant professor of anesthesiology and surgery at Emory University Hospital, said there was inherent danger in repurposing drugs “designed to treat patients, to cure diseases,” because there was no dosage “indicated or prescribed as having the intent to kill.”

“They’re making this up as they go along,” Dr. Zivot said in a telephone interview.

Dr. Zivot said that midazolam acts “like a key in a lock,” attaching to a receptor in the body and causing sedation. Once the receptor is saturated, he said, “it doesn’t matter if you give the person 500 additional doses or five million doses. It won’t have any more effect.”

Deborah W. Denno, a law professor at Fordham University and a death penalty opponent who has studied execution methods, said Friday that the use of numerous doses of drugs whose efficacy as an execution method had already been in question “demonstrates yet again the extraordinary level of reckless disregard and incompetency that departments of corrections bring to the execution process.”

Arizona is one in several states using midazolam and hydromorphone in lethal injections. That two-drug combination was picked as a replacement to a three-drug protocol that included medication that acted to stop the heart. States were forced to seek alternatives after manufacturers of the three-drug mixture refused to continue selling it to them.

As part of a standard procedure, the state of Arizona released to Mr. Wood’s lawyers the documents related to the execution — 331 pages, including logs detailing the amount of drugs he received, his reactions and the work of the medical team. The defense team then shared with the news media the logs pertaining to the execution.

Death penalty experts have said that it was one of the longest executions ever in the United States.

The documents showed that Mr. Ryan personally directed the execution team to use the additional doses. In his statement, Mr. Ryan said the doses ensured that “the inmate remained deeply sedated throughout the process, and did not endure pain.”

“The inmate’s sedation level was continually monitored and verified by the IV team,” Mr. Ryan said. The intravenous team included a doctor, he said.
 

A version of this article appears in print on August 2, 2014,
on page A11 of the New York edition with the headline: Executed Arizona Inmate Got 15 Times Standard Dose, Lawyers Say.

    Executed Arizona Inmate Got 15 Times Standard Dose, Lawyers Say,
    NYT, 1.8.2014,
    http://www.nytimes.com/2014/08/02/us/
    executed-arizona-man-given-15-times-standard-dose-lawyers-say.html