History > 2015 > USA > Justice > Death Penalty (I)

 Glenn Ford,

at his home in New Orleans

shortly after being freed from death row in 2014.

Photograph:

Henrietta Wildsmith/The Shreveport Times, via Associated Press

Glenn Ford, Spared Death Row, Dies at 65

NYT

JULY 2, 2015,

http://www.nytimes.com/2015/07/03/us/glenn-ford-spared-death-row-dies-at-65.html 

Georgia Executes

Woman on Death Row

Despite Clemency Bid

and Pope’s Plea

 

SEPT. 29, 2015

The New York Times

By ALAN BLINDER

ATLANTA — Georgia executed the only woman on its death row on Wednesday, hours after the State Board of Pardons and Paroles rejected her final plea for clemency and nearly seven months after her execution was postponed because a lethal injection drug had become “cloudy.”

A Georgia Department of Corrections spokeswoman said the inmate, Kelly Renee Gissendaner, who was convicted of orchestrating her husband’s 1997 murder, died at a state prison in Jackson, southeast of Atlanta, at 12:21 a.m.

Ms. Gissendaner, 47, was the fifth woman to be executed in the nation in the past decade, according to the Death Penalty Information Center.

Two more executions are scheduled this week, including Richard Glossip, an Oklahoma prisoner. He is among the inmates who this year lost a United States Supreme Court case that challenged the use of a particular sedative, midazolam, in executions.

In Georgia, Ms. Gissendaner was put to death after the federal courts refused to intercede and the state panel turned down an application for clemency that drew the support of Pope Francis. Visiting the United States last week, Francis had urged Congress to abolish the death penalty.

Ms. Gissendaner’s guilt in the death of her husband, Douglas, was uncontested, but her lawyers cited her “sincere remorse and acceptance of responsibility” in a filing this month. Her supporters argued that her “good works in prison” justified a commutation of her sentence to life imprisonment.

State officials and some members of Mr. Gissendaner’s family said that her death sentence was appropriate.

“She had no mercy, gave him no rights, no choices, nor the opportunity to live his life,” Mr. Gissendaner’s family said in a statement released by the district attorney’s office in Gwinnett County, where the murder took place. “His life was not hers to take.”

Ms. Gissendaner’s lawyers also argued that her sentence was inappropriately severe because Georgia had not executed a “non-trigger person” since the death penalty was reinstated in 1976.

The man who carried out the murder, Gregory Owen, Ms. Gissendaner’s boyfriend, was sentenced to life imprisonment in a plea agreement. Ms. Gissendaner, who rejected an offer to plead guilty in exchange for a sentence of life imprisonment with the eventual possibility of parole, was convicted in 1998.

Ms. Gissendaner later achieved some renown for her spiritual development during her incarceration, and the pope tried to intervene on Tuesday.

“While not wishing to minimize the gravity of the crime for which Ms. Gissendaner has been convicted, and while sympathizing with the victims, I nonetheless implore you, in consideration of the reasons that have been presented to your board, to commute the sentence to one that would better express both justice and mercy,” Archbishop Carlo Maria Viganò, the Vatican’s ambassador to the United States, wrote in a letter on Francis’ behalf.

Popes have sometimes asked the American authorities to stop executions, as Pope John Paul II did in 2001 when he wrote to President George W. Bush on behalf of Timothy McVeigh, who bombed a federal building in Oklahoma City.

Ms. Gissendaner’s legal argument had recently focused on whether her postponed execution in March amounted to a violation of the Constitution, which prohibits cruel and unusual punishment.

Then, Georgia’s corrections commissioner canceled Ms. Gissendaner’s execution because of concerns about the state’s supply of pentobarbital.

Georgia officials suspended executions amid a review of the state’s procedures, and they later said that the pentobarbital had not been contaminated. Instead, they said it had precipitated, most likely because the drug was “shipped and stored at a temperature which was too low.”

After the postponement, Ms. Gissendaner’s lawyers argued that bumbling state officials had essentially forced Ms. Gissendaner to face “hours of unconstitutional torment and uncertainty — to which she had not been sentenced — while defendants dithered about whether they could execute her.”

That argument failed in several federal courts, including the United States Supreme Court, which rejected Ms. Gissendaner’s final appeal late Tuesday.

A version of this article appears in print on September 30, 2015, on page A12 of the New York edition with the headline: Last Door Closes in Georgia for Woman on Death Row.

Georgia Executes Woman on Death Row
Despite Clemency Bid and Pope’s Plea,
NYT, SEPT. 29, 2015,
http://www.nytimes.com/2015/09/30/us/kelly-gissendaner-execution-georgia.html

The Law That Keeps

People on Death Row

Despite Flawed Trials

 

JULY 17, 2015

The New York Times

By EMILY BAZELON

One of the more curious rulings the Supreme Court handed down last month, overshadowed by its landmark health care and same-sex-marriage decisions, concerned a death-row inmate named Hector Ayala. In 1989, Ayala was charged with participating in the execution-style murder of three men in an auto-body shop in San Diego, an apparent result of a heroin deal gone bad. During jury selection for the trial, prosecutors struck all seven of the prospective jurors who were black or (like Ayala) Hispanic.

The Supreme Court has ruled that systematically excluding jurors on the sole basis of race violates the Constitution, so Ayala’s lawyer protested. The judge asked the prosecution for an explanation for the strikes in a private session and deemed it legitimate — without letting the defense hear or challenge the rationale. Ayala was convicted and sentenced to death.

On appeal, the California Supreme Court said the trial judge had erred but deemed the error “harmless,” letting Ayala’s conviction and sentence stand. The United States Court of Appeals for the Ninth Circuit disagreed, found that Ayala’s trial was unfair and ordered the state to either retry or release him. When the case reached the United States Supreme Court this year, it mostly garnered attention for a short concurring opinion in which Justice Anthony M. Kennedy denounced solitary confinement, the form of imprisonment Ayala has endured for most of the past 25 years. But Kennedy joined the court’s four other conservative justices in ruling against Ayala in June. The majority opinion chided the Ninth Circuit for misunderstanding the role of a federal court. A federal court, Justice Samuel A. Alito Jr. wrote, was merely supposed to stand guard against “extreme” judicial malpractice by state courts — not “substitute its own opinions for the determination made on the scene by the trial judge.”

But how, exactly, do you draw the line between the two? This is a fight that is waged over and over again when federal judges try to grant relief to prisoners convicted in state courts — which handle a vast majority of criminal cases — under circumstances of questionable fairness. It’s also a fight that federal judges increasingly lose in the Supreme Court — to the point that some of them are now raising the alarm that the law is systematically failing to provide the necessary safeguards against miscarriages of justice. Congress, they say, should fix it.

This state of affairs is the product of a semi-obscure 1996 law called the Antiterrorism and Effective Death Penalty Act. Passed with bipartisan support and signed by President Bill Clinton in the wake of the Oklahoma City bombing, the law was based in part on Newt Gingrich’s “Contract With America” and was designed to limit appeals of death-penalty sentences brought via the “Great Writ,” as it’s known, of habeas corpus. As a legal concept, habeas corpus dates to medieval England. The Latin translates literally as “you have the body.” The idea is that a prisoner has a right to petition a court to show that he or she is being held illegally.

Habeas rights aren’t entirely unshakable; President Abraham Lincoln famously suspended them during the Civil War, and whether or not a similar suspension was warranted in terrorism cases after the Sept. 11 attacks was central to the challenges brought by detainees held in Guantánamo Bay. But these are exceptional circumstances; for more prosaic criminal proceedings, states provide post-conviction processes for demonstrating procedural failings in a trial. After that, a prisoner may bring a habeas petition to a federal court, which has traditionally had the power to overturn a state conviction. “Habeas lies to enforce the right of personal liberty,” Justice William Brennan wrote in 1963; “when that right is denied and a person confined, the federal court has the power to release him.”

Supporters of this approach point out that state judges, who often face re-election bids, may feel more pressure to push habeas aside in the name of being tough on crime than federal judges, whose lifetime appointments insulate them from politics. State courts also have far higher caseloads, leaving them with less time and fewer resources to spend on habeas petitions, which often leads to summary denials.

Conservative critics, on the other hand, have generally bristled at this federal oversight. They point out — as Republican congressional supporters of the Antiterrorism and Effective Death Penalty Act did in the 1990s — that the additional means of appeal the procedure provides can add years to the process. Many states don’t provide free counsel for habeas petitions unless the death penalty is involved (and sometimes not even then). That leaves courts to sort through tens of thousands of filings written by prisoners representing themselves every year.

The Antiterrorism and Effective Death Penalty Act changed the balance of state and federal power over habeas petitions, by stipulating that a federal court may step in only if the previous proceedings in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” But over the past two decades, the Supreme Court’s unsparing interpretation of this language has become an enormous source of frustration on the federal bench — to the point that two influential judges on the Ninth Circuit bench, the liberal Stephen Reinhardt and the more conservative Alex Kozinski, have each recently called for its demise. They argue that the law, as interpreted by the court’s conservative majority, trips up federal judges who try to undo unjust convictions, rendering them powerless to address procedural unfairness — and, at worst, preventing them from granting a potentially innocent person a new trial or release, or even stopping his or her execution.

In a spring article in The Michigan Law Review, Reinhardt writes that the court has fashioned “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.” The maze has expanded since Alito succeeded Justice Sandra Day O’Connor in 2006, moving the court to the right on criminal justice, among other issues. Over the course of the court’s 2007-13 terms, Reinhardt found that the Supreme Court had ruled against prisoners in all but two of the 28 habeas petitions it had considered.

Judge Kozinski, for his part, attacks the law in a preface to The Georgetown Law Journal’s Annual Review of Criminal Procedure, which is remarkable in the breadth of its criticism of the American criminal justice system. Kozinski, a Reagan appointee, has voted to uphold many criminal penalties, including death sentences. But viewing the law from the perspective of the federal bench, he writes, “we now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

By way of example, Kozinski points to the Ninth Circuit’s 2006 review of the conviction of Shirley Ree Smith, who was sentenced to 15 years to life after she was found of guilty of shaking her 7-week-old grandson, Etzel Glass, to death in 1996. There was no evidence that Smith had previously mistreated Etzel in any way. And while he had subdural bleeding in his brain, it was minimal, and only one of the three symptoms classically associated with shaken-baby syndrome, a diagnosis that has become increasingly controversial.

The California Supreme Court declined to review Smith’s case. When it reached the Ninth Circuit, the three judges who reviewed her habeas petition said they approached it “with a firm awareness of the very strict limits that the Antiterrorism and Effective Death Penalty Act places” on federal courts. Still, the Ninth Circuit judges looked at new medical evidence that called into doubt the validity of Smith’s conviction, found that “there has very likely been a miscarriage of justice in this case” and released her from prison, where she had already spent 10 years. In 2011, the Supreme Court reversed the Ninth Circuit, over a strong dissent from Justice Ruth Bader Ginsburg (joined by two other justices), saying that the appeals court had run afoul of the law. The following year, Gov. Jerry Brown commuted Smith’s sentence to time served.

The Antiterrorism and Effective Death Penalty Act is also at the heart of one of the most disputed death-penalty cases of the last decade. Troy Davis was convicted in Georgia of killing an off-duty police officer who came to the aid of a homeless man in a Burger King parking lot. After the Georgia courts denied Davis’s appeals, he went to the federal courts with a habeas petition, describing new evidence of his innocence: Seven of the nine eyewitnesses who testified against Davis at trial had recanted, and new witnesses implicated someone else, whom the police ruled out as a suspect early in their investigation. Procedural rules barred Davis from bringing this evidence on appeal. The United States Court of Appeals for the 11th Circuit ruled that he could not have a hearing for his new evidence in federal court, either.

In this case, the Supreme Court did step in and order such a hearing. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man,” Justice John Paul Stevens wrote. But the decision prompted a dissent from Justice Antonin Scalia, joined by Justice Clarence Thomas, that includes this protest: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

As many commentators have pointed out, this statement is both true and stone cold. “The proper question is, and always should have been, whether the detainee has a constitutional right to be free,” Reinhardt writes of habeas corpus. But 19 years of Supreme Court decisions based on the Antiterrorism and Effective Death Penalty Act have fundamentally narrowed the scope of habeas review, from a fight over the merits of a claim of innocence or fairness to one over narrow process issues: Has the state time limit for filing a habeas petition passed? Is the petition barred by some other rule? This is what the federal courts now spend their time parsing.

It is no surprise that the Supreme Court’s interpretation of the law has lowered the rate of success for habeas petitions. But it has also failed at its stated aim of reducing time-consuming appeals. According to a 2007 study by Nancy J. King, Fred L. Cheeseman II and Brian J. Ostrom, the time courts spend processing habeas cases has actually increased on average. “To the extent that [the law’s] provisions were designed to streamline the overall processing of individual cases, that result has not been achieved,” the authors concluded.

John H. Blume, a Cornell law professor who has been tracking the law’s effects since its inception, once argued that it “has been less ‘bite’ than ‘hype.’” Now he agrees with Reinhardt and Kozinski, he told me in an email, calling the Supreme Court’s expansion of the law “agenda-driven judicial policy-making.”

This is a moment of increasing bipartisan interest in criminal justice reform, including sustained attention from President Obama and regret from Bill Clinton about mass incarceration. About the role the Antiterrorism and Effective Death Penalty Act plays, Kozinski reaches a clear and dramatic conclusion. It “is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice,” he writes. “It has resulted and continues to result in much human suffering. It should be repealed.”

The Law That Keeps People on Death Row Despite Flawed Trials,
NYT, JULY 17, 2015,
http://www.nytimes.com/2015/07/17/magazine/
the-law-that-keeps-people-on-death-row-despite-flawed-trials.html

Is the Death Penalty Unconstitutional?

JULY 7, 2015

The New York Times

The Opinion Pages | Contributing Op-Ed Writer

CHICAGO — On the heels of major decisions about same-sex marriage and health care, the Supreme Court closed the term that ended last week with one more extremely contentious case, Glossip v. Gross, which was about the death penalty. The narrow issue in the case was the legality of Oklahoma’s most recent method of lethal injection, using a drug called midazolam. The court upheld that execution method in a 5-to-4 ruling, concluding that the challengers had not done enough to show that it was riskier than the alternatives. But the extensive opinions in the case confronted fundamental questions about the place of the death penalty in our constitutional system.

Marking the contentiousness of the issue, four justices announced their competing opinions aloud in the courtroom. It is uncommon for more than one justice to speak in a particular case. Four is almost unheard-of.

The separate opinions of Justices Antonin Scalia and Stephen G. Breyer, in particular, are worthy of note, as they express starkly opposing views of the death penalty’s place under our Constitution. Justice Breyer basically called for the abolition of the death penalty, while Justice Scalia argued that the Constitution itself protected the death penalty from judicial invalidation. But both views are misguided; the best position lies in between them.

Let’s start with Justice Scalia, who argues that the Constitution explicitly blesses the death penalty. The Fifth Amendment says that one cannot be “deprived of life … without due process of law,” and that “capital, or otherwise infamous crime” must proceed by grand jury. Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is “obvious” that it “is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”

But this argument ignores the lesson of another constitutional amendment, the Ninth, which is designed to stop precisely the sort of inference that Justice Scalia is making here. The framers worried that codifying individual rights could be dangerous, because identifying specific limits on government power may imply that those are the only limits, with the government otherwise having a free hand. When Congress decided to propose a Bill of Rights nonetheless, James Madison included language to answer this objection — which ultimately became our Ninth Amendment — that warns that no specific right should be taken to preclude other possibly relevant rights.

Unfortunately, that is what Justice Scalia is doing. He considers the specific right to due process before execution and infers from it that the death penalty can never be a “cruel and unusual punishment,” which the Eighth Amendment prohibits. To be clear, Justice Scalia is surely correct that the framers assumed that the death penalty could be imposed without being cruel and unusual, and their assumption may well turn out to be right. But that is an assumption that has to be tested by interpreting the Eighth Amendment by its own lights.

Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.

We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.

If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.

William Baude, a contributing opinion writer, is an assistant professor of law at the University of Chicago.

Is the Death Penalty Unconstitutional?,
NYT, JULY7, 2015,
http://www.nytimes.com/2015/07/07/opinion/is-the-death-penalty-unconstitutional.html

Glenn Ford,

Spared Death Row,

Dies at 65

JULY 2, 2015

The New York Times

By BRUCE WEBER

Glenn Ford, who spent nearly 30 years on death row in Louisiana for a murder he almost certainly did not commit, died on Monday in New Orleans, less than 16 months after his conviction and death sentence were vacated and he was released. He was 65.

William Most, a lawyer for Mr. Ford, said the cause was lung cancer, a diagnosis Mr. Ford received shortly after his release in March 2014. He died at a home provided by Resurrection After Exoneration, a nonprofit group that assists freed prisoners, Mr. Most said.

Mr. Ford walked out of the Louisiana State Penitentiary at Angola, one of the nation’s toughest prisons, after spending 29 years, 3 months and 5 days behind bars, nearly half his life, most of that time in solitary confinement for all but an hour a day.

After years of failed appeals, Mr. Ford’s extraordinary release was precipitated by “newly discovered and credible exculpatory evidence,” as prosecutors described it. In 2013, it was provided by a confidential informant to Dale G. Cox, then the first assistant district attorney and now the district attorney for Caddo Parish, which includes Shreveport.

It was there, on Nov. 5, 1983, that Isadore Rozeman, a frail 58-year-old with failing eyesight, was found shot to death in his small jewelry shop. Four men were initially accused of the murder, as well as the theft of jewelry, but Mr. Ford, who had done yardwork for Mr. Rozeman and was seen in the area of the shop on the day of the crime, was the only one who stood trial.

He was convicted largely on the basis of testimony by a witness, the girlfriend of one of the three other suspects, whose credibility was demonstrably undermined during the trial — she admitted to lying — and on circumstantial evidence. That evidence included a coroner’s claim that the fatal gunshot was likely fired by a left-hander.

That conclusion came despite the absence of a murder weapon, which was never found. And Mr. Ford was left-handed.

Also, Mr. Ford’s two court-appointed lawyers had scant experience in criminal law, and neither had ever presented a case before a jury. Mr. Ford was black, while the 12 jurors who convicted him and sentenced him to die — as well as the judge and Mr. Rozeman — were white.

Mr. Ford, 34 when the crime took place, had had drug problems but had no history of violence. He cooperated with the police investigation, acknowledging that he had been given stolen merchandise from the store by the other accused men and that he had pawned it, but denying that he was present when Mr. Rozeman was robbed and shot.

“Any exoneration is remarkable, of course,” the legal analyst Andrew Cohen wrote in The Atlantic on the eve of Mr. Ford’s release. “Any act of justice after decades of injustice is laudable. It is never too late to put right a wrong. But what also is striking about this case is how weak it always was, how frequently Ford’s constitutional rights were denied, and yet how determined Louisiana’s judges were over decades to defend an indefensible result.”

Mr. Ford was born in Shreveport on Oct. 22, 1949, and he had recently returned there from Riverside, Calif., where he and two siblings were reared by their mother’s mother. He went to school through the 11th grade and, Mr. Most said, at some point earned a high school equivalency diploma. For a time he went to cosmetology school.

He had returned to Shreveport, Mr. Most said, because he thought he needed a new start. There he lived with his father, whom he barely knew, and earned money doing odd jobs. For a time he worked at a sandwich shop.

He is survived by several children and more than 10 grandchildren, Mr. Most said.

In an interview, Mr. Cox said that the new evidence came to him while he was interviewing an informant regarding a different murder. To protect that source, and because the Rozeman case has been reopened, Mr. Cox would not identify the informant or disclose what he said. But the information he provided, Mr. Cox said, had been investigated and deemed credible and pointed to two brothers, Jake and Henry Robinson, who were among the original suspects. They are both in jail for other violent crimes.

In March, A. M. Stroud III, lead prosecutor at trial, wrote a remorseful article in The Shreveport Times, declaring, “Glenn Ford was an innocent man,” taking responsibility for a rush to judgment and arguing for the abolition of the death penalty.

“I apologize to Glenn Ford for all the misery I have caused him and his family,” Mr. Stroud wrote. “I apologize to the family of Mr. Rozeman for giving them the false hope of some closure. I apologize to the members of the jury for not having all of the story that should have been disclosed to them. I apologize to the court in not having been more diligent in my duty to ensure that proper disclosures of any exculpatory evidence had been provided to the defense.”

He concluded: “I end with the hope that providence will have more mercy for me than I showed Glenn Ford. But I am also sobered by the realization that I certainly am not deserving of it.”

Mr. Stroud said that Mr. Ford deserved compensation from the state for his wrongful conviction — he might have qualified for more than $300,000 under a Louisiana statute — though others were not so sympathetic. A district court judge, Katherine Dorroh, ruled that even though he was not the killer, he was guilty of possession of stolen goods, accessory after the fact to armed robbery and perhaps other crimes, and therefore not entitled to any payment.

And even though he was responsible for Mr. Ford’s release, Mr. Cox, who remains an ardent supporter of the death penalty, agreed with the judge that Mr. Ford “did not have clean hands in this matter.” In an interview, he was unwilling to say Mr. Ford was not guilty. “There was no exoneration,” Mr. Cox said. “There was new information that, had it been presented at trial, may have changed the verdict. It may not.

“I don’t know whether Glenn Ford was the shooter or not. I have my doubts. But that’s neither here nor there. I had to predict, in my mind, what 12 people would have thought of this information 30 years ago.

“Since I couldn’t be sure, I had to err on the side of caution. If it were me, I’d have changed my verdict, at least about the sentence.”

On the day he left Angola, Mr. Ford was asked what the conviction had cost him.

“Thirty years of my life, if not all of it,” he said. “I can’t go back and do anything I should have been doing when I was 35, 38, 40, stuff like that.”


A version of this article appears in print on July 3, 2015, on page B14 of the New York edition with the headline: Glenn Ford, Spared Death Row, Dies at 65.

Glenn Ford, Spared Death Row, Dies at 65,
NYT, JULY 2, 2015,
http://www.nytimes.com/2015/07/03/us/glenn-ford-spared-death-row-dies-at-65.html

A Divided Court on Three Big Rulings

JUNE 29, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

Is the Death Penalty Constitutional?

An interesting thing happened on the way to Monday morning’s predictable Supreme Court ruling upholding Oklahoma’s use of a controversial lethal-injection drug.

The 5-to-4 decision rejected a claim by three death-row inmates that use of the sedative midazolam would put them at risk of severe pain. It also ruled preposterously that in order to succeed the inmates had to show that there is an alternative manner of execution that is significantly less painful but readily available.

Justice Samuel Alito Jr., writing for the majority, and Justice Sonia Sotomayor, writing the main dissent, battled bitterly over both of these issues.

But it was Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, that stood out above the usual noise: For 46 pages, a Supreme Court justice made the case that the death penalty most likely violates the Constitution.

In 1994, Justice Harry Blackmun announced that after a quarter century on the court he had given up on capital punishment and would no longer “tinker with the machinery of death.” It was a remarkable statement because the court has never held that the death penalty is categorically unconstitutional.

On Monday, Justice Breyer revived the issue, “rather than try to patch up the death penalty’s legal wounds one at a time.”

In a thorough, data-laden treatise, Justice Breyer explained why today’s death penalty likely violates the Eighth Amendment’s ban on cruel and unusual punishment. It is unreliable: More than 150 people sentenced to death since 1973 have been exonerated. It is arbitrary: Its application in any given case depends on factors like race or geography. Decades-long delays negate its claimed deterrent effect. And all but a very few jurisdictions have abandoned it.

All of these concerns, Justice Breyer wrote, are “quintessentially judicial matters” that demand the court’s attention. And yet his engagement with this important topic drew a one-word summation from Justice Antonin Scalia: “gobbledygook.” He mocked Justice Breyer’s challenges as having been voiced for years by death-penalty abolitionists. It did not seem to occur to Justice Scalia that the same issues surface again and again because the problem lies with capital punishment itself.

Redistricting by the People

The Supreme Court case challenging Arizona’s method of drawing election districts could have been a big win for state lawmakers who regularly abuse their power to stay in power. But the justices, by a 5-to-4 vote, handed the victory to the people instead.

The ruling protected laws in Arizona, California, Hawaii and other states that have delegated redistricting to independent commissions, and in the dozens of other states where citizens, through constitutional amendments and ballot measures, have claimed a greater say in how district maps are drawn and election rules are written.

The case involved an electoral process so hopelessly corrupted by partisan gerrymandering that Arizona’s voters approved a proposition to amend the Constitution to remove redistricting authority from the Legislature and created an independent five-member commission to draw congressional and state legislative district lines. The lawmakers sued to get the mapmaking pen back.

The majority opinion, written by Justice Ginsburg, is plain and persuasive in arguing that Arizona’s citizens acted properly to protect the integrity of their elections. Under Arizona’s system, she wrote, “initiatives adopted by the voters legislate for the state just as measures passed by the representative body do.”

Chief Justice John Roberts Jr., writing in dissent, sided with the legislators’ restrictive reading of the Constitution’s elections clause, which they read to mean that only Congress or a state “legislature” can make a state’s election laws.

In practice, in statehouses across the land, legislators and lobbyists, armed with ever more sophisticated map-drawing programs, have created systems of permanent incumbency and control. Had the court’s minority prevailed, the voice of voters who have fought to end such practices would have been silenced.

Direct citizen democracy is not a substitute for elected representatives who do their jobs. But the majority ruling is a timely reminder that rank partisan gerrymandering is incompatible with democratic principles — and “that the people themselves are the originating source of all the powers of government.”

Micromanaging the E.P.A.

The Environmental Protection Agency has a complicated job: It must make rules to protect the nation’s air and waterways from toxic pollutants — like the mercury emitted by coal-burning power plants — while weighing a wide range of factors, including how harmful the pollutants are to human health and the environment, and how much it would cost polluters to comply with the rules.

The agency considers those costs at many stages in the rule-making process, as the Clean Air Act requires it to do. In the case of mercury and other harmful pollutants, it determined that for a cost of about $10 billion in well-established cleaner-coal technologies, the nation would enjoy benefits valued at between $37 and $90 billion, including the prevention of as many as 11,000 premature deaths a year.

This is exactly the sort of complex, balanced determination that highly experienced regulators are entrusted to make — and to which courts generally defer.

But five justices ruled that the E.P.A. had failed to follow the law because it did not consider the costs of its mercury rule at the start of the process.

Writing for the majority, Justice Scalia rejected the agency’s argument that it considered costs at a later stage. The law requires regulations to be “appropriate and necessary,” he wrote, so the agency cannot completely ignore costs at the outset.

The problem, as Justice Elena Kagan explained in a sharp dissent, is that the E.P.A. considered the costs connected to the emissions rule “over and over and over again.” After finding that these harmful pollutants had to be regulated, it set standards, considered how to make them as inexpensive as possible for different types of plants, and did a thorough cost-benefit analysis. And yet the majority opinion focused on only the initial decision to regulate, she wrote, “with barely a glance at all the ways in which E.P.A. later took costs into account.”

This “micromanagement” of rule making “runs counter to Congress’s allocation of authority between the agency and the courts.”

The rule remains in place while it is reconsidered by a federal appeals court in Washington that has already upheld it once. Meanwhile, there is no good argument for the delinquent power plants to delay any longer.
 

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A version of this editorial appears in print on June 30, 2015, on page A22 of the New York edition with the headline: A Divided Court on Three Big Rulings.

A Divided Court on Three Big Rulings,
NYT, JUNE 29, 2015,
http://www.nytimes.com/2015/06/30/opinion/a-divided-court-on-three-big-rulings.html

Supreme Court Allows

Use of Execution Drug

 

JUNE 29, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

In the process, two dissenting members of the court — Justices Stephen G. Breyer and Ruth Bader Ginsburg — came very close to announcing that they were ready to rule the death penalty unconstitutional. This gave rise to slashing debate with Justices Antonin Scalia and Clarence Thomas about the reliability and effectiveness of the punishment, a dispute that overshadowed the core issue in the case.

The 5-to-4 decision on the execution drug broke along familiar lines, with Justice Anthony M. Kennedy joining the court’s more conservative members to allow its use.

Justice Samuel A. Alito Jr., writing for the majority, said the inmates had failed to identify an available and preferable method of execution and failed to make the case that the challenged drug entailed a substantial risk of severe pain.

In dissent, Justice Sonia Sotomayor, who joined the other three members of the court’s liberal wing, said, “The court’s available-alternative requirement leads to patently absurd consequences.”

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” Justice Sotomayor wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”

Justices Breyer, Ginsburg and Elena Kagan joined Justice Sotomayor’s dissent.

In a second, more sweeping dissent, Justice Breyer, joined by Justice Ginsburg, said it was time to consider a larger issue.

“Rather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

In a 46-page dissent that included charts and maps, he said that “it is highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was warped by racial discrimination and politics.

Justice Breyer added that there was scant reason to think that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment. He noted that most of the country did not use the death penalty and that the United States was an international outlier in embracing it.

Justice Scalia responded to what he called “Justice Breyer’s plea for judicial abolition of the death penalty” by calling it “gobbledygook.” The punishment is contemplated by the Constitution, Justice Scalia said, and disingenuously opposed on grounds created by its opponents.

Criticizing the death penalty on the ground that it is not carried out fast enough, for instance, Justice Scalia said, “calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.”

“We federal judges,” Justice Scalia continued, “live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the people decide how much incremental deterrence is appropriate.”

In a second concurrence, Justice Thomas described several cases in which the Supreme Court had spared the lives of killers.

“Whatever one’s views on the permissibility or wisdom of the death penalty,” Justice Thomas wrote, “I doubt anyone would disagree that each of these crimes was egregious enough to merit the severest condemnation that society has to offer. The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it.”

The challenge to the execution drug was brought by four condemned inmates in Oklahoma, who said it did not reliably render the person unconscious and so violated the Eighth Amendment. Lower courts disagreed.

Oklahoma and several other states started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.

Justice Alito suggested that condemned inmates should not benefit from the shortages, saying that “anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.”

Chief Justice John G. Roberts Jr. and Justices Scalia, Kennedy and Thomas joined the majority opinion.

In dissent, Justice Sotomayor said the shortages had produced real risks.

“The execution protocols states hurriedly devise as they scramble to locate new and untested drugs,” she wrote, “are all the more likely to be cruel and unusual — presumably, these drugs would have been the states’ first choice were they in fact more effective.”

Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.

In April 2014, Clayton D. Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.

The Supreme Court last considered lethal injections in 2008, in Baze v. Rees, when it held that what was then the standard three-drug combination, using the barbiturate sodium thiopental as the first agent, did not violate the Eighth Amendment.

The new case, Glossip v. Gross, No. 14-7955, originally included a fourth inmate, Charles F. Warner. But he was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote.

A little more than a week later, the court agreed to hear the remaining inmates’ appeals, and a few days after that it stayed their executions.

They are Richard E. Glossip, who was convicted of arranging the beating death of his employer; John M. Grant, who was convicted of stabbing a prison cafeteria worker to death; and Benjamin R. Cole Sr., who was convicted of breaking his 9-month-old daughter’s spine, killing her.

“While most humans wish to die a painless death,” Justice Alito wrote for the majority, “many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
 

A version of this article appears in print on June 30, 2015, on page A1 of the New York edition with the headline: Justices Approve Execution Drug in a 5-to-4 Vote.

Supreme Court Allows Use of Execution Drug,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/30/us/supreme-court-execution-drug.html

Nebraska Legislature,

in Bipartisan Vote,

Bans Death Penalty

MAY 20, 2015

The New York Times

By JULIE BOSMAN

The Nebraska Legislature on Wednesday voted, 32 to 15, to abolish the death penalty, setting up a final showdown between a bipartisan coalition that supported the bill and the Republican governor, who has promised to veto it. No conservative state has banned the death penalty since North Dakota did so in 1973.

If the bill is vetoed by Nebraska’s Republican governor, Pete Ricketts, a vote to override his veto could come as soon as Tuesday. Thirty votes are required to override.

The bill, which would replace lethal injection with life imprisonment, passed the unicameral Legislature on Wednesday after months of debate and lobbying on both sides, with conservative Republicans lining up in opposition to a group of Democrats and moderate Republicans who said they have come to oppose the death penalty for reasons that are moral, fiscal or religious.

Nebraska has not executed an inmate since 1997, leading some lawmakers to argue that the state has ended the death penalty in practice.

In Nebraska, bills must be approved three times before reaching the governor’s desk. During the second round of voting on the death penalty bill, it garnered 30 votes in favor. Supporters of the bill said it had gained momentum in the last several days, adding two more votes in favor on Wednesday after a two-hour debate.

Senator Ernie Chambers, a long-serving independent from Omaha who sponsored the bill, has been pushing for a repeal to the death penalty for four decades. “Nebraska will step into history,” if the Legislature overturns the death penalty, Mr. Chambers told lawmakers on Wednesday.

Stacy Anderson, the executive director of Nebraskans for Alternatives to the Death Penalty, said it was “an exciting day for Nebraska.”

“I really feel that given the reasoning that the senators gave on the floor, it was so clear that they had studied the issue and really thought long and hard on this, and decided in the end that this was the best thing for the state of Nebraska,” she said. “There was clear, strong bipartisan support for it.”

But Republicans who believe the death penalty is an essential deterrent to violent crimes said the fight was not over.

Senator Bill Kintner, a Republican who has strongly opposed the bill, said that the vote was the work of a “liberal Legislature” that did not care about the views of Nebraskans.

At a news conference on Wednesday, Governor Ricketts said it appeared to be “a dark day for public safety,” calling the Legislature “completely out of touch with the overwhelming number of people I talk to.”

In a statement before the vote, the governor urged lawmakers to reconsider repeal, a move that would “give our state’s most heinous criminals more lenient sentences.”

Taylor Gage, a spokesman for Mr. Ricketts, said the governor would veto the bill as promised.

As part of his push against the bill, Mr. Ricketts announced last week that the state had procured lethal injection drugs. The state paid nearly $55,000 for the drugs, the Nebraska News Service reported on Wednesday.
 

A version of this article appears in print on May 21, 2015, on page A18 of the New York edition with the headline: Nebraska Legislature, in Bipartisan Vote, Bans Death Penalty.

Nebraska Legislature, in Bipartisan Vote, Bans Death Penalty,
NYT, MAY 20, 2015,
http://www.nytimes.com/2015/05/21/us/
nebraska-lawmakers-vote-to-abolish-death-penalty.html

152 Innocents, Marked for Death

APRIL 13, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

However much Americans may disagree about the morality of capital punishment, no one wants to see an innocent person executed.

And yet, far too often, people end up on death row after being convicted of horrific crimes they did not commit. The lucky ones are exonerated while they are still alive — a macabre club that has grown to include 152 members since 1973.

The rest remain locked up for life in closet-size cells. Some die there of natural causes; in at least two documented cases, inmates who were almost certainly innocent were put to death.

How many more innocent people have met the same fate, or are awaiting it? That may never be known. But over the past 42 years, someone on death row has been exonerated, on average, every three months. According to one study, at least 4 percent of all death-row inmates in the United States have been wrongfully convicted. That is far more than often enough to conclude that the death penalty — besides being cruel, immoral, and ineffective at reducing crime — is so riddled with error that no civilized nation should tolerate its use.

Innocent people get convicted for many reasons, including bad lawyering, mistaken identifications and false confessions made under duress. But as advances in DNA analysis have accelerated the pace of exonerations, it has also become clear that prosecutorial misconduct is at the heart of an alarming number of these cases.

In the past year alone, nine people who had been sentenced to death were released — and in all but one case, prosecutors’ wrongdoing played a key role.

The latest was Anthony Ray Hinton, who on Apr. 3 walked out of the Alabama prison where he had spent almost 30 years, half his life, on death row. Mr. Hinton was convicted of two murders largely on faulty evidence that the bullets had come from his gun. His prosecutor at the time said he knew Mr. Hinton was guilty and “evil” just by looking at him. And later prosecutors continued to insist on his guilt even when expert testimony clearly refuted the case against him.

Why does this keep happening? In a remarkable letter to the editor published last month in The Shreveport Times, A.M. Stroud III, a former prosecutor in Louisiana’s Caddo Parish, offered a chillingly frank answer: “Winning became everything.”

In 1984, Mr. Stroud convinced a jury to convict a man named Glenn Ford and sentence him to death for murder. But Mr. Stroud now admits that because he was so focused on winning rather than on seeking justice, he failed to identify and turn over evidence that would have cleared Mr. Ford.

“How totally wrong was I,” Mr. Stroud wrote, apologizing to Mr. Ford — who spent 30 years in prison, 26 of those on death row — as well as his family, the judge, the jury, and the family of the murder victim, a jeweler named Isadore Rozeman.

This is little consolation to Mr. Ford, who was released in 2014 but is now dying from lung cancer that developed, and went untreated, while he wasted away in prison. (Last month a Louisiana judge denied Mr. Ford any compensation beyond the $20 debit card he received upon his release.) Still, Mr. Stroud’s powerful message is a rare admission of prosecutorial hubris and the outrageously high price many people pay for it.

Unfortunately, that message is unlikely to be heeded in places where it needs to be heard most — in Caddo Parish itself, for example, which sentences more people to death per capita than anywhere else in the country. Responding to the searing honesty of Mr. Stroud’s letter, the parish’s current first assistant district attorney, Dale Cox, offered up some candor of his own: “I’m a believer that the death penalty serves society’s interest in revenge,” Mr. Cox told The Shreveport Times. “I think we need to kill more people.”

The all-too-common mind-set to win at all costs has facilitated the executions of people like Cameron Todd Willingham or Carlos DeLuna, whose convictions have been convincingly debunked in recent years. And that mind-set led to the wrongful conviction of people like Mr. Hinton, Mr. Ford and Henry Lee McCollum, who was exonerated last year after spending three decades on North Carolina’s death row.

If not for the extraordinary after-the-fact efforts of lawyers, investigators, or just plain dumb luck, these men would be dead too, and neither Mr. Cox nor anyone else would be the wiser.
 

A version of this editorial appears in print on April 13, 2015, on page A18 of the New York edition with the headline: 152 Innocents, Marked for Death.

152 Innocents, Marked for Death, NYT,
APRIL 12, 2015,
http://www.nytimes.com/2015/04/13/opinion/152-innocents-marked-for-death.html

Executing Them Softly

February 9, 2015

3:45 am

The New York Times

By Zachary Fine

Opinionator - A Gathering of Opinion From Around the Web

The Stone

The Stone is a forum for contemporary philosophers

and other thinkers on issues both timely and timeless.


I.

At the outset of his essay “On Pain,” the philosopher Ernst Junger offers a passage from a 19th-century German cookbook: “Of all animals that serve as nourishment to man,” it reads, “lobster must suffer the most torturous death, for it is set in cold water on a hot flame.” Whether or not lobsters suffer — a crustaceous quandary that once left David Foster Wallace ambivalent, even after devouring the scientific literature — it is difficult to see their wriggling as a sign of jubilation. But all too rarely does the fact of their death grab our attention. Rather, it is the spectacle of pain amid the roiling water that sears itself into our minds.

In the stream of reports and editorials responding to four botched executions in the United States in 2014, and now an upcoming Supreme Court case that will address the constitutionality of Oklahoma’s three-drug lethal injection cocktail, the primary targets of outrage have been the pain experienced by the condemned and the method of execution. In July, the execution of Joseph Wood III in Arizona spanned one hour and 57 minutes. During the process, according to reports, he “gasped” more than 600 times. Just three months before in Oklahoma, Clayton D. Lockett reportedly writhed and screamed during his 43-minute-long execution. And in January 2014, there were Dennis McGuire in Ohio and Michael Wilson in Oklahoma. Before falling unconscious, Wilson’s last words were: “I feel my whole body burning.”

In the wake of these executions, critics set their sights on the “barbarism” and “inhumanity” of the punishments by citing the extraordinary minute counts from injection to time of death, and the aesthetics of suffering: flailing limbs, heaving chests and foaming mouths. Inside and outside courts, a number of officials called for the improvement of chemical compounds (challenging the “three-drug protocol”), while others demanded a return to the gallows or more “foolproof” methods such as the firing squad.

In spite of harrowing witness accounts from these executions, the responses of lawmakers and the media should attract our concern. As this Times editorial points out, the fixation on the technologies of execution and the appearance of pain often obscures the crucial debate over the abolition of capital punishment.

In 1972, for instance, the Supreme Court’s decision in Furman v. Georgia skirted the issue of abolishing the death penalty by focusing on the cruelty of the method of execution and the seemingly arbitrary imposition of the death sentence across cases. With a 5-to-4 decision and no controlling opinion, the justices ruled that an execution would violate the Eighth and Fourteenth Amendments. Instead of debating the very principle of the death penalty itself, the justices kicked the can down the road, and capital punishment returned in full force with Gregg v. Georgia (1976) after only a de facto four-year moratorium.

And today, still skating around the issue, the Court has decided to take up a case concerning Oklahoma’s three-chemical lethal injection procedure to adjudicate on whether specific drugs, not capital punishment itself, violate the Eighth Amendment. Justice Sonia Sotomayor remarked, “We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain.” Yet again, the pain inflicted, and not the principle of capital punishment, has gripped lawmakers.

II.

Since the late 19th century in the United States, critical responses to the spectacle of pain in executions have continued to spur ardent calls for the improvement of killing technology. One of the most prolific legal theorists of capital punishment, Austin Sarat, has concisely referred to this history: “The movement from hanging to electrocution, from electrocution to the gas chamber, from gas to lethal injection, reads like someone’s version of the triumph of progress, with each new technique enthusiastically embraced as the latest and best way to kill without imposing pain.” Recent debates over the administration of midazolam and pentobarbital, and in what dosage, seamlessly integrate themselves into Sarat’s grim progress narrative.

The inexhaustible impulse to seek out less painful killing technologies puts a series of questions in sharp relief: What is, and should be, the role of pain in retributive justice? And how has the law come to rationalize the condemned’s experience of pain during an execution? While the Eighth Amendment stipulates the necessity of avoiding “cruel and unusual punishment,” in 1890 the Supreme Court decided this clause could mean that no method of execution should impose “something more than the mere extinguishment of life.” And then, in 1958, the court also determined that the amendment should reflect the “evolving standards of decency that mark the progress of a maturing society.”

If we were to consider the “standard of decency” in our society today, we would be pushed to ask: By what moral order have we continued to establish the “extinguishment of life” as something “mere,” and the pain of the condemned as excessive? In other words, how has the pain experienced during an execution become considered cruel and unconstitutional but not the very act of killing itself? We should dial back to older histories of law to tap into pain’s perennially vexed role in retributive theories of justice.

Tracing the very origins of the legal subject in “On the Genealogy of Morals” (1887), Nietzsche writes about a most powerful idea, only the vestiges of which lingered in 19th-century German jurisprudence: “the idea that every injury has its equivalent which can be paid in compensation, if only through the pain of the person who injures.” According to Nietzsche, the genesis of this “equivalence between injury and pain” can be found in Roman commercial law, in the “contractual relationship between creditor and debtor.” The relationship between crime and punishment, more broadly, can then be understood as an injury or a wrong in the eyes of the law that generates a debt, repayable only through punishment.

Nietzsche’s gripe is with the law’s attempt to draw an economic equivalence between two incommensurable concepts: the injury of the victim and the pain of the punished. The problem is that for the debt to be settled, the injury and the pain of punishment would each have to be somehow calculable — otherwise, they could not be made equivalent.

When accounting for pain in any system of crime and punishment, the challenge is not only the impossibility of calculating it with an objective metric, but also pain’s “unsharability” and “resistance to language,” as the philosopher Elaine Scarry has argued. Beyond the subject experiencing pain, who struggles to account for the sensation — resorting to a handful of adjectives that describe intensities (severe, sharp, mild, burning, searing, crushing and so forth) or to analogies (painful as…) — there is also the witness, who is called upon to interpret the pain of another, as if transmuting the body into a text to be read. In the case of the death penalty, the condemned experiences pain that survives only in the language of the witness.

Lawmakers, despite the often inscrutable nature of pain and the difficulty of representing it through language, still carry the power to adjudicate on how much of it is enough. When botched executions prompt courts to probe the limits of the “cruel” and “unusual,” as they often do, the tacit question is: How much or how little pain is sufficient for the “debt,” as Nietzsche frames it, to be repaid and justice to be served? In the upcoming Supreme Court case, for example, where the “needless” infliction of pain is the concern, precisely how much pain is needed?

After each of the four botched executions in 2014, some critics claimed that the pain of the condemned was simply too great, drawn out and unjustified, whereas others attested that no amount of pain could be enough, that the convicted “deserves” to suffer in the name of justice.

Modern criminal law, however, aims for the high road. Our 21st-century legal system has mostly parted with that archaic notion of “an eye for an eye” so fundamental to the origins of retributive justice. Kant, though he listed a few exceptions, belonged to this camp, proclaiming, “Whoever has committed murder must die.” Today, even though the punishment is still supposed to fit the crime, contemporary criminal laws in America tend toward more discreet economies of pain, relying on prison sentences and painless deaths; punishment now is no longer simply about matching pain to injury. Even when a state sentences convicted murderers to death — a life for a life, if you will — the intended painlessness makes the killing more palatable, seemingly procedural and distinct from revenge.

Many legal scholars and philosophers see this turn toward supposedly less cruel and painful deaths as a result of the gradual bureaucratization of executions. Before the 20th century in Europe and the United States, as the philosopher Michel Foucault showed in his celebrated 1975 book “Discipline and Punish,” executions were not only public spectacles but events in which the state would reconstitute its sovereignty. By publicly “beating down upon” and “mastering” the body of the criminal, the state would aim to inspire lasting obedience in the citizens who observed.

Gradually, though, states have sought to distance themselves from the brutality of the very crimes they condemn. Aiming for retribution and not vengeance (the former considered morally right), the law now compels the state to kill “softly,” “gently” and “quietly,” as Sarat has noted. This movement toward a quiet and medicalized death serves to dispel sympathy for the condemned: The state’s killing seems more civilized than barbaric and, in comparison to the condemned’s crime, appears even gracious.

III.

To better pre-empt instances of pain inflicted by the state, we would not only have to abolish the death penalty but also to reckon with the conditions by which it continues to exist. The problem is that abolitionism sets it sights too narrowly. According to the philosopher Jacques Derrida, what makes the abolitionist discourse “so fragile” is that it “banishes the death penalty at home and maintains the right to kill at war.” To interdict one kind of execution and to legally sanction another reveals that abolitionism is often concerned not with killing itself but rather a locale and a technique.

The logic that allows for railing against certain technologies of killing or how much pain they produce has repercussions for state-sanctioned violence abroad. One could argue that this was the case with President Obama’s “red line” (consistent with the international community’s 1997 Chemical Weapons Convention), which pronounced the use of certain weaponry, not killing itself, as the breaking point for intervention in Syria. And, subsequently, it was the gruesome method and spectacle of the decapitations by the Islamic State, or ISIS, that seems to have justified an expanded air campaign over Iraq and Syria.

While these grisly scenes can evoke our most impassioned responses, they present a wound to be superficially sutured: disturbing problems and pains to be rooted out, often with violence, only when they are seen and heard.

To attend to pain in a more systemic way, we would have to imagine a more ambitious moral call. Emmanuel Levinas, a 20th-century French Jewish philosopher, once wrote that “the justification of the neighbor’s pain is surely the source of all suffering.” Levinas’s conceit suggests that by justifying the pain of others during an execution or even at war abroad, whether criminals or foreigners, we risk perpetuating conditions that afford more extensive kinds of violence, more enduring kinds of pain.

We should continue to challenge the beliefs that lead us to consider a painful execution as excessively cruel or unusual, and a painless death as justified, or worse, compassionate.

Zachary Fine is a writer and a student at the New York University Gallatin School for Individualized Study.

Executing Them Softly,
FEB 9, 2015, NYT,
http://opinionator.blogs.nytimes.com/2015/02/09/death-penalty-pain/

Oklahoma Asks Supreme Court

to Delay Executions

 

JAN. 26, 2015

The New York Times

By TIMOTHY WILLIAMS

Oklahoma officials asked the United States Supreme Court on Monday to stay the execution of three inmates on death row until the court rules on the constitutionality of the state’s lethal injection process. The court agreed on Friday to decide a case on the constitutionality of the new combinations of drugs that some states are using to execute prisoners, which critics say cause intense suffering.

In a filing with the court on Monday, the attorney general of Oklahoma, Scott Pruitt, said the application to delay the executions was necessary to provide clarity as the state sought to resume its execution schedule. Oklahoma wants the right to resume executions if it finds a different suitable combination of drugs.

The state’s Constitution allows the governor to grant a 60-day reprieve. But because the Supreme Court case probably will not be resolved in that time frame, Mr. Pruitt sought the stay, said his spokesman, Will Gattenby. The Supreme Court is not scheduled to hear the case until late April and is unlikely to issue a decision before June 1.

“Likewise, the application must be filed with the Supreme Court instead of the Oklahoma Criminal Court of Appeals because there is no pending case in the Oklahoma court,” Mr. Gattenby said.

Dale Baich, a lawyer representing the three inmates, said on Monday that his legal team agreed “that it is appropriate that executions in Oklahoma should be stayed while the U.S. Supreme Court reviews the case.”

Oklahoma has scheduled executions for the inmates, who have each been convicted of murder. They are Richard E. Glossip, who has been sentenced to die on Thursday; John M. Grant, on Feb. 19; and Benjamin R. Cole Sr., on March 5. On Jan. 15, the state executed another inmate, Charles F. Warner, after the Supreme Court declined to issue a stay.

Mr. Pruitt said Monday that he believed Oklahoma’s lethal injection practices were constitutional.

“The families of the victims in these three cases have waited a combined 48 years for the sentences of these heinous crimes to be carried out,” Mr. Pruitt said in a statement. “Two federal courts have previously held the current protocol as constitutional, and we believe the United States Supreme Court will find the same. We thus support stays until a decision in the state’s favor is final or until viable alternative drugs can be obtained.”

In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to moan and struggle after the drug cocktail was administered. He died in the execution chamber 43 minutes after the injections had begun.

Oklahoma, along with several other states, uses midazolam in executions as the first medication administered to the condemned as a three-part drug cocktail. The sedative is intended to render the prisoner unconscious before the injection of a paralytic and then a caustic heart-stopping agent. Midazolam was also involved in prolonged and what witnesses said appeared to be painful executions last year in Arizona and Ohio.

Oklahoma and other states have switched to the drug in recent years because the manufacturers of pentobarbital and sodium thiopental, which had been used commonly in executions in the past, have refused to sell the drugs to be used for executions.

After the bungled execution of Mr. Lockett last year, Oklahoma temporarily suspended lethal injections. But after a review, the state restarted its execution program while continuing to use midazolam, at a higher dosage.

Mr. Warner’s execution this month was the first since Mr. Lockett’s to be carried out using midazolam.

According to journalists who witnessed the 18-minute procedure, it did not appear that Mr. Warner suffered great pain, and he appeared to lose consciousness quickly. As the injections began, however, he said, “My body is on fire.” Intravenous lines were inserted into his arms, and he called out that he had been “poked five times.”

Mr. Warner was convicted of raping and killing an 11-month-old girl in 1997.

A version of this article appears in print on January 27, 2015, on page A11 of the New York edition with the headline: Oklahoma Asks Justices to Delay Executions.

Oklahoma Asks Supreme Court to Delay Executions,
JAN 26, 2015, NYT,
http://www.nytimes.com/2015/01/27/us/oklahoma-asks-justices-to-delay-executions.html

Justices to Hear Case

Over Drugs Used in Executions

 

JAN. 23, 2015

The New York Times

By ADAM LIPTAK

and ERIK ECKHOLM

WASHINGTON — The Supreme Court on Friday agreed to decide a case on the constitutionality of the new combinations of drugs that some states are using to execute prisoners and that critics say cause intense suffering.

The court will hear a challenge to Oklahoma’s choice of drugs even though the justices declined last week to stop an execution there that used the contested chemicals.

With the addition of this case, the court’s term seems likely to end with three major decisions — on same-sex marriage, on the fate of the Affordable Care Act and, now, on the administration of capital punishment.

In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to moan and struggle after the drugs were administered, then died in the execution chamber 43 minutes after the injections had begun.

That led the state to suspend lethal injections and try to improve its procedures. Oklahoma decided to continue using the sedative now under legal challenge, but at a higher dosage.

The case will provide the Supreme Court’s first evaluation of lethal injections during a time when the customary drugs have become scarce and states have tried new combinations and refused to identify the sources of the lethal chemicals.

“Lethal injections are a subject on which everyone deserves clarity, but the law has been thoroughly chaotic for the last seven years,” said Eric M. Freedman, a law professor at Hofstra University. “The court’s decision to address the confusion at last is welcome.”

The case the court agreed on Friday to hear, Glossip v. Gross, No. 14-7955, involves three inmates who said Oklahoma’s three-chemical procedure violated the Eighth Amendment because it posed a significant risk of terrible suffering.

The case originally included a fourth inmate, Charles F. Warner. He was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote. Journalists who witnessed the 18-minute execution said that Mr. Warner did not seem to suffer great pain and that he appeared to lose consciousness quickly.

Mr. Warner, 47, was sentenced to death for sexually assaulting and murdering an 11-month-old girl in 1997.

It takes the vote of five justices to stay an execution, but only four to agree to hear a case.

“We’re excited that the court took the case,” said Dale Baich, a lawyer for the condemned prisoners.

Another Oklahoma prisoner and plaintiff in the case, Richard Glossip, who was convicted of a 1997 contract murder, is scheduled for execution on Thursday.

“Our immediate concern now is to try to get a stay for Mr. Glossip,” Mr. Baich said. “The argument will be that since the court has decided it will hear the case, that’s a new circumstance that would warrant a stay.”

“The time is right for the court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols,” Mr. Baich said.

Justice Sonia Sotomayor dissented from the denial of a stay for Mr. Warner, saying the case presented two questions worthy of the court’s consideration.

The first, she said, was whether the inmates should be required to specify an alternative method of execution, as courts have demanded in Oklahoma and elsewhere, before challenging the method to be used by the state.

“It would be odd if the constitutionality of being burned alive, for example, turned on a challenger’s ability to point to an available guillotine,” Justice Sotomayor wrote.

The second issue, she wrote, was whether the state should be using midazolam, a sedative, as its first chemical. Medical experts testifying on behalf of the inmates at an evidentiary hearing said the effects of high doses of midazolam, which Oklahoma adopted, were too unpredictable to justify its use.

Midazolam was also involved in prolonged, possibly painful executions last year in Ohio and Arizona. The drug has also been used by Florida in a dozen executions at the start of a three-drug combination, similar to that used in Oklahoma. The sedative is intended to render the prisoner unconscious before injection of a paralytic and then a caustic heart-stopping agent. If it does not do so, medical experts say, the inmate will suffer excruciating pain, which could go undetected because the prisoner would be paralyzed and unable to communicate.

Those states have switched to midazolam because companies making the traditional barbiturates, which have a longer track record and deeper anesthetic properties, have refused to provide them for executions.

In the Supreme Court brief defending Oklahoma’s drug protocol, state officials said, “Oklahoma chose midazolam because the state has a sacred duty to enforce its criminal judgments, and the protocol pioneered by Florida represents the best available mechanism to carry out these judgments.”

An expert witness for the state had defended the chemical, but Justice Sotomayor wrote that his testimony was open to question. He “cited no studies,” Justice Sotomayor wrote, “but instead appeared to rely primarily on the web site www.drugs.com.”

She expressed surprise that a Federal District Court judge had ruled for the state, allowing executions to proceed.

“It is true that we give deference to the district courts,” Justice Sotomayor wrote. “But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.”

“We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain,” she added. “Here, given the evidence before the district court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the dissent on the denied stay last week.

In its order on Friday, the Supreme Court offered no explanation for agreeing to review the issue.

The Supreme Court last considered lethal injection protocols in 2008 in Baze v. Rees, which upheld Kentucky’s use of what was then the three-drug mixture used in most executions.
 

Adam Liptak reported from Washington, and Erik Eckholm from New York.

A version of this article appears in print on January 24, 2015, on page A1 of the New York edition with the headline: Justices to Hear Case on Drugs Used to Execute.

Justices to Hear Case Over Drugs Used in Executions,
JAN 23, 2015,
http://www.nytimes.com/2015/01/24/us/justices-to-hear-case-on-execution-drugs.html

Oklahoma to Resume Executions,

9 Months After a Lethal Injection

Went Awry

JAN. 15, 2015

The New York Times

By ERIK ECKHOLM

With a renovated death chamber, new training and a higher dose of drugs, corrections officials in Oklahoma were ready Thursday to carry out the first execution there since April, when the slipshod, prolonged killing of Clayton D. Lockett forced the state to suspend lethal injections and make changes to its procedure.

The grisly details of Mr. Lockett’s execution led to new questions, in Oklahoma and around the country, about the reliability of lethal injection as a humane procedure and about the new drug combinations being tried as once-preferred drugs became scarce.

But in the end, federal courts cleared the way for Oklahoma to resume lethal injections, using a sedative that some medical experts say may not consistently put prisoners into the deep coma needed to avoid suffering.

Barring a last-minute reprieve from the Supreme Court, Charles F. Warner is to be put to death at 6 p.m. local time at the Oklahoma State Penitentiary in McAlester. Mr. Warner, 47, was condemned for the murder and sexual assault of an 11-month-old girl in 1997.

Also on Thursday, Florida planned to execute Johnny Shane Kormondy, 42, who was condemned for the murder of a man during a home invasion in 1993, using the same three-drug combination that was challenged, without success, by the Oklahoma prisoners’ lawyers.

Mr. Warner was originally scheduled to die on April 29, 2014, two hours after Mr. Lockett. But his execution was postponed after the problems with Mr. Lockett’s lethal injection. The prisoner seem to wake and writhed in agony after a doctor failed to place the intravenous line in a vein, causing the sedative, then a paralyzing agent and a caustic heart-stopping drug, to diffuse in his groin. Mr. Lockett finally died 43 minutes into a procedure expected to take no more than 10 to 15 minutes and after a doctor seeking to reinsert a needle punctured an artery, resulting in what the prison warden later called “a bloody mess.”

Lawyers for Mr. Warner and three other Oklahoma prisoners scheduled for execution in the next two months, backed by several medical experts, argued that the effects of high doses of midazolam, the sedative adopted by Oklahoma, are not known completely and too unpredictable to justify its use. Midazolam was also involved in prolonged, possibly painful executions last year in Ohio and Arizona.

Oklahoma officials argued, in a brief on Jan. 6, that “the citizens should not see their criminal justice system derailed” because of “baseless speculation of theoretical harms.”

In turning down the prisoners’ motion for a delay, a federal district judge, and then an appeals court, noted that Florida had used the same agent repeatedly without apparent problems.

The execution of Mr. Kormondy would be Florida’s 12th using midazolam. But defense lawyers in Florida argue that some of the men executed there showed unexpected movements after receiving the sedative, and that once the paralytic is administered, there is no way to know if the prisoner senses excruciating pain as potassium chloride, the heart-stopping agent, courses through his bloodstream.

Experts say that barbiturates more commonly used in executions in the past, sodium thiopental and pentobarbital, produce a deeper unconsciousness and can even be used alone to cause death. But suppliers of those drugs have refused to sell them for use in executions.

After an investigation of what went wrong in the Lockett execution, Oklahoma put new equipment in its death chamber to help ensure proper placement of intravenous catheters and said that if the paramedic or doctor was unable to place a needle within one hour, officials might postpone the event. They also decided to multiply the dose of midazolam, to the level used in Florida.

The news media and civil liberties groups have complained that Oklahoma’s remodeled execution chamber and new procedures have limited the ability of the public to observe lethal injections there. Officials say there is room for only five witnesses from the news media, compared with 12 before. Audio from the chamber will be turned off, and the state’s corrections director can close the curtains and block the view of the witnesses at his discretion.

“The officials are addressing some of the things that went wrong, but at the same time they’re making sure that the public doesn’t know as much about what happens,” said Brady Henderson, legal director of the American Civil Liberties Union of Oklahoma.

The evidence of flaws in the Lockett execution led to discussions on talk radio about the death penalty and how to administer it, Mr. Henderson said. But there is no evidence that the state’s strong support for capital punishment was shaken.

In a poll in June, 74 percent of likely voters in Oklahoma said they favored the death penalty for those convicted of murder. The question had not been asked in state polling over the previous decade because support was clearly so high, said Bill Shapard of ShapardResearch, which conducted the survey for the Tulsa World newspaper.

Nationally, 63 percent of adults supported the death penalty for convicted murderers in a Gallup poll last October, down from a modern peak of 80 percent in the mid-1990s but consistent with levels over the last seven years.

If core beliefs about capital punishment have not changed much, publicity about repeated injection problems, exonerations of prisoners on death row and debates about executing the mentally ill have all raised public awareness, said Jennifer Moreno, a lawyer with the death penalty clinic of the University of California, Berkeley.

“People are taking a look at lethal injection and realizing that it isn’t the simple, easy process many thought it was,” she said.

Oklahoma to Resume Executions,
9 Months After a Lethal Injection Went Awry,
NYT,
JAN 15, 2015,
http://www.nytimes.com/2015/01/16/us/
oklahoma-execution-charles-warner-lethal-injectionn.html