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Death penalty

March 3, 2010
Second State Adopts One-Drug Lethal Injection Protocol
Following in the footsteps of Ohio, Washington became the second state to adopt a one-drug protocol for lethal injections. The single-drug method replaces the three-drug combination widely used by states, and upheld by the U.S. Supreme Court in Baze v. Rees.

Washington's decision was made public in filings with the state's high court in the case of convicted murderer Darold Stenson. The state's Attorney General Rob McKenna filed the disclosure, requesting that the court dismiss Stenson's appeal of his death sentence. McKenna argued that Stenson's constitutional claims are rendered moot by the change in protocol.

Though the state seemingly submitted the one-drug method to circumvent Stenson's constitutional claims, the state maintains that the three-drug cocktail is constitutional. In fact, the three-drug method will remain available to death-row inmates in Washington who request it.

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Death penalty, Supreme Court, Other courts, Criminal Justice, Darold Stenson, Lethal Injection, Ohio, One-Drug Injection, Rob McKenna, Three-Drug Cocktail, Washington State
February 24, 2010
Study Finds Flawed System for Poor Defendants Facing Texas Death Penalty
The majority of Texas counties continue to rely on procedurally flawed method that is failing poor defendants facing the death penalty, according to research published in a new ACS Issue Brief.
University of Denver Sociology and Criminology Professor Scott Phillips studied more than 500 death penalty cases in Harris County, home of Houston, which the author dubs the "capital of capital punishment," and found that a method of employing court-appointed lawyers is riddled with procedural problems.

Phillips writes:

Defendants who hired counsel for the entire case were never sentenced to death. Even defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death than defendants with appointed counsel.

The findings are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies in the appointment method of indigent defense. The system is flawed, not the individuals who work within the system.

Beyond being procedurally flawed, Phillips maintains the method, which is used in 252 of the state's 254 counties, has life and death consequences. He notes that "38 of the 41 defendants executed to date had appointed counsel."

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Access to Justice, Death penalty, Criminal Justice, Death Penalty, Harris County, Indigent Defense, Scott Phillips, Texas
February 23, 2010
An Affair to Die for in Texas?
Does a Texas prosecutor's affair with the trial judge in a capital case violate the defendant's right to a fair trial? That question could face the U.S. Supreme Court if it grants certiorari in the case of Charles Dean Hood, who was sentenced to death in 1990. He only obtained depositions of Judge Verla Sue Holland, who presided over Hood's case and the prosecutor, Thomas S. O'Connell Jr., in 2008. The Texas Court of Criminal Appeals considered Hood's case, but still ruled 6-3 to uphold his execution.

Hood's appeal to the Supreme Court immediately drew the support of 21 prosecutors and 30 legal ethics experts.

"A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself," the ethics experts wrote to the high court in their amicus brief. "Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative."

Attorney and ACSblog contributor Scott Horton agreed, writing this morning that "Texas is in the process of declaring itself a judicial ethics-free zone."

Writing in The New York Times, Adam Liptak notes that the Supreme Court has demonstrated a willingness to dabble in judicial ethics:

Last year, [the Court] ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

"The probability of actual bias on the part of the judge," Justice Anthony M. Kennedy wrote for the majority, was "too high to be constitutionally tolerable."

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift - a penis made of chocolate.

Concerns for judicial integrity have haunted Texas of late, as suggested by Horton. Just released today is "Hire a Lawyer, Escape the Death Penalty?," an ACS Issue Brief by Professor Scott Phillips. Phillips researched the death penalty's application in Houston and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Phillips study reveals that "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."

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Access to Justice, Death penalty, Supreme Court, Other courts, Criminal Justice, Adam Liptak, Judge Sharon Keller, Judge Verla Sue Holland, Judicial Ethics, Justice Anthony Kennedy, Scott Horton, Scott Phillips, Texas, Texas Forensic Science Commission, Thomas O'Connell, Todd Cameron Willingham
February 3, 2010
Expert Blasts High Court's Jurisprudence on Race
Largely premised on the unanimous Brown v. Board of Education decision, which galvanized the civil rights movement, the U.S. Supreme Court's reputation for protecting minorities' rights is not often challenged. But, according to Harvard Law Professor Michael Klarman, that conventional wisdom is a myth.

In "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" at SCOTUSblog, Klarman argues that, over the course of its history, the Court has repeatedly proven to be "regressive force on racial issues."

By way of example, Klarman observes:

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect." After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations. Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans.
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Civil rights, Death penalty, Supreme Court, Criminal Justice, Equality and Liberty, Brown v. Board of Education, Michael Klarman
February 2, 2010
Third Circuit Opens Gate to Executions in Del.
Delaware will resume executions for the first time since 2005, after yesterday's decision by the U.S. Court of Appeals for the Third Circuit.

The unanimous, 47-page opinion stated:

This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court's highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk. Accordingly, we will affirm the District Court's grant of summary judgment for Delaware and dissolve the District Court's stay. [Link added.]

Despite endorsing the state's position, the three-judge panel warned Delaware about its "occasional blitheness" regarding its application of the three-drug protocal used by approximately three dozen states. Without finding qualms rising to the constitutional level, the court did advise Delaware of its "moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

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Death penalty, Supreme Court, Other courts, Criminal Justice, Beau Biden, Delaware, Eighth Amendment, Lethal Injection, Third Circuit, Three-Drug Cocktail