Death penalty

  • 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.    

  • June 2, 2014
    Guest Post

    by Frank Housh, owner of Housh Law Offices, PLLC, and chair of the ACS Western New York Lawyer Chapter. He participated in the preparation of the petition for a writ of certiorari in Johnson v. Texas, 509 US 350 (1993), a case related to the issue of the intellectual capacity of the defendant in a capital case.

    The Supreme Court’s May 27 decision in Hall v. Florida makes clear that fundamental notions of human dignity and the validity of the scientific method axiomatic in developed nations of the 21st Century have found no purchase by the majority of the Court. As a nation which still executes its own, the United States remains a peculiar outlier in the international order; the fact that our constitutional jurisprudence still tinkers with the obsolete machinery of death drags down the rule of law below the minimum standards of the world community.

    In 1989, a 5-4 Supreme Court in Atkins v. Virginia held that executing the “mentally retarded” was a violation of the Eighth Amendment. “Mentally retarded,” however, remained undefined in the decision. What followed was a macabre race to the bottom among the states, including Florida’s bright-line standard that funneled those capital defendants with an IQ of 69 or less to life without parole and those with a score of 70 and above to the gallows (Freddie Lee Hall scored a 71). Unfortunately, that race continues, as Hall does little to clarify the issue.

    Hall had two holdings: first, the more palatable “intellectual disability” is the phrase of choice over “mental retardation;” second, IQ score alone cannot be the final and conclusive evidence of the defendant’s intellectual capacity because “experts in the field would consider other evidence” due to the presence of a “standard error measurement.” No further guidance was given as to what constitutes a constitutionally permissible scheme to determine the the minimum standard of intellectual function necessary to strap someone to a gurney and shoot poison into them until they die.