Death penalty

  • July 14, 2014
    BookTalk
    The Wrong Carlos
    Anatomy of a Wrongful Execution
    By: 
    James S. Liebman

    by James S. Liebman, Simon H. Rifkind Professor of Law, Columbia Law School, and Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky

    Do states with the death penalty execute innocent people? That is the fundamental question at the heart of The Wrong Carlos, a book I recently published with student coauthors.

    It is also the question facing the American public following a series of devastating developments for death penalty supporters. March brought news of the 144th death row exoneration. In April, we learned that Oklahoma had botched Clayton Lockett’s execution, leaving him awake during a massive drug-induced heart attack. The Supreme Court found in May that Florida remains hell bent on executing defendants too mentally disabled to be condemned. And in June—for the first time—a majority of Americans indicated in a poll that they prefer life without parole to capital punishment.

    Death penalty supporters are left clinging to a single promise often made but never substantiated—a promise repeated by Justice Scalia in a 2006 opinion: Whatever else we do, we don’t execute the innocent.

    I began thinking about this question between 2000 and 2003, when colleagues and I issued our Broken System studies documenting judicial findings of accuracy-impugning error in two-thirds of all U.S. capital cases reviewed between 1973 and 1995.

    Our studies sparked a heated debate over two competing interpretations. Did the courts’ discovery of so many errors prove the system worked? Or do high error rates mean it is almost certain that courts miss other errors, allowing the innocent to be executed?

  • July 11, 2014

    by Nicholas Alexiou

    Reginald Dwayne Betts tells his story of being in solitary confinement as a juvenile, before he was ever tried, in the ACLU’s Blog of Rights.

    Florida executed Eddie Davis via lethal injection on Thursday evening for the 1994 rape and murder of an 11-year-old girl. Mark Berman at The Washington Post reports that Davis’ execution was the fourth in the U.S. since the botched execution of Clayton Lockett in Oklahoma.

    The New York TimesCharlie Savage reports on a lawsuit filed in the U.S. District Court for the Northern District of California against the government’s Suspicious Activity Reporting database.

    At MSNBC, Emma Margolin explores how the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. could negatively impact the LGBT community.

  • July 2, 2014
    Guest Post

    By David Menschel, Criminal Defense Lawyer; President, Vital Projects Fund

    As the Supreme Court ends its October Term 2013 and heads off for summer recess, it is worth taking a closer look at one of the sleeper cases of the term, Hall v. Florida, a case about intellectual disability and the death penalty. Though Hall received only moderate attention in the press and was depicted as having limited practical reach, it contains significant new avenues for those who oppose the death penalty. The opinion, written by Justice Anthony Kennedy, contains small but important analytical shifts that, considering Kennedy’s role not only as the Court’s swing justice but also as the Court’s most vocal interpreter of the Eighth Amendment, could ultimately make it far easier for death penalty opponents to abolish the death penalty entirely.

    On the surface at least, Hall strikes little new ground. It mostly clarifies the Supreme Court’s 2002 decision, Atkins v. Virginia, in which the Court ruled that the Constitution forbids the execution of the “mentally retarded” – people we now refer to as “intellectually disabled.” Atkins had largely left it to the states to determine which defendants fall into this category and therefore are exempt from the death penalty. Hall tells certain wayward states like Florida that in order to comply with Atkins, they must determine which defendants are intellectually disabled in a robust, less rigid way and in a manner that is consistent with medicine and science.

    Practically speaking, Hall will likely have a modest effect. In the opinion itself, Justice Kennedy estimated that “at most nine states” had laws similar to Florida’s. The New York Times suggested that “only a small number” of death row inmates would qualify for a new hearing as a result of Hall, and the Times cited death penalty expert John Blume, a law professor at Cornell University, who said that the ruling might apply to “10 to 20” inmates. Another Times piece estimated that the ruling “affects roughly 30 death row inmates” about “15 to 20” of whom are in Florida. While it is too soon to know how broad Hall’s practical effect will be – it remains to be seen how it will be applied by lower courts – these estimates suggest that only a tiny fraction of America’s approximately 3,000 death row inmates are likely to be exempted from the death penalty because of Hall.

  • June 6, 2014

    by Nicholas Alexiou

    The rickety nature of the American indigent defense system is on display in The Guardian as Ed Pilkington reports on the judicial system in Cordele, Ga. ACS Georgia Lawyer Chapter Board of Advisors member Sara Totonchi is quoted.

    In The Washington Post, Mark Berman reports on the appeal of Ohio death row inmate Romell Broom, whom the state attempted to execute in 2009, but abandoned that effort after being unable to find a suitable vein to administer the lethal injection. The Ohio Supreme Court will determine whether another attempted execution would constitute double jeopardy as well as cruel and unusual punishment.

    Norm Ornstein argues for Supreme Court term limits in The Atlantic.

    The U.S. Court of Appeals for the Ninth Circuit affirmed a trial court decision on Thursday to certify a class of inmates in the Arizona prison system who allege that their Eight Amendment rights have been violated reports Bob Ortega at the Arizona Republic.

  • June 3, 2014
    Guest Post

    by John H. Blume, Professor of Law, Director of Clinical, Advocacy and Skills Programs, Cornell Law School; Director, Cornell Death Penalty Project; Faculty Advisor, Cornell Law School ACS Student Chapter

    In Hall v. Florida, the Supreme Court of the United States reaffirmed the core holding of Atkins v. Virginia, which – more than a decade ago – erected an Eighth Amendment categorical bar to executing persons with an intellectual disability. While the Atkins Court utilized and embraced the clinical consensus definitions of intellectual disability, it stated (in an unfortunate choice of language) that it was leaving “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction.” Some states, Florida being one, concluded that the Court was giving them license to narrow the scope of the constitutional exclusion by adopting legislative (or as in Hall, judicially created) variations to the clinical definition of intellectual disability. 

    The deviation from the “unanimous professional consensus” at issue in Hall was the refusal to consider the standard error of measurement inherent in any IQ score. The first prong of the clinical definition of intellectual disability is that the person must have “significantly subaverage intellectual functioning,” which translates to an IQ score of approximately 70 (two standard deviation below the mean). Even though the test designers, the American Psychological Association (APA) and the American Association for Individuals with Intellectual and Developmental Disabilities (AAIDD) all stated before and after Atkins that the measurement error of 5 points had to be taken into account, the Florida Supreme Court concluded that any death sentenced inmate who did not have an IQ score of 70 or below was precluded as a matter of law from arguing that he was intellectually disabled. Applying this non-scientific rigid cut-off, the Florida courts rejected Hall’s claim that he was intellectually disabled because his IQ was measured at 71.