Day: September 26, 2012

ALABAMA – Trial begins on isolation of HIV-positive inmates

September 26, 2012

MONTGOMERY, ALA. — Alabama prisons continue to isolate inmates who have tested positive for HIV even though the virus is no longer the death sentence it once was considered, an attorney for HIV-positive prison inmates said Monday.

ACLU attorney Margaret Winter asked U.S. District Judge Myron Thompson Monday to end a longstanding Alabama prisons policy of isolating inmates who have tested positive for HIV.

Thompson is hearing testimony in a trial of a lawsuit brought by HIV-positive inmates challenging the Alabama prisons policy of keeping HIV-positive inmates separate from the remainder of the prison population. Alabama and South Carolina are the only states that continue to do so.

Attorney Bill Lunsford, representing Alabama prisons, said the HIV-positive prisoners are kept together in dormitories at Limestone Correctional Facility in north Alabama and at Tutwiler Prison for Women in Wetumpka. But he said the inmates can participate in most of the programs available to other inmates.

Lunsford and Winter made the remarks in opening statements in a trial of a federal lawsuit challenging the Alabama prisons’ HIV policy. The trial is expected to last about a month.

The ACLU claims the policy is a violation of the Americans with Disabilities Act. Winter said in her opening statement that the policy keeps HIV-positive inmates from participating in some programs to help in their rehabilitation.

But Lunsford said the only thing the HIV-positive inmates are prohibited from doing is working in the prison kitchen. Winter, however, said the HIV-positive inmates often can’t get the same work-release jobs as other inmates, particularly food service jobs.

The trial’s first witness was Frederick Altice of Yale University, who described himself as an expert in the incarceration of HIV-positive inmates.

He described the prison system’s policy of isolating HIV-positive inmates as a mistake, particularly for inmates who are just learning that they are HIV-positive. He said some people still have the same reaction to HIV they had in past years, when it was considered more deadly.

“They think, ‘Am I never going to be able to see my children?’ or ‘Am I going to die?'” Altice said. “Being alone is not a good place for them to be.”

Lunsford repeatedly questioned Altice’s credentials, particularly when it comes to understanding how the Alabama prison policy works.

The trial continues Tuesday morning.

The US Is Still Executing People For Crimes Committed As Teens

September 25, 2012

The United States never misses an opportunity to castigate other countries for “uncivilized” behavior, and certainly there is enough of that to go around almost anywhere you look in the world. But there’s plenty of it here in the U.S. too.

Just consider the case of Terry Williams.

Williams, a 47-year-old black man, has spent almost 30 years on Pennsylvania’s crowded death row while lawyers sought appealed his death penalty for two murders committed back when he was a 17 and 18-year old boy. Now he’s about to be killed by the state for those crimes.

At the time he was tried and convicted, although it was known to prosecutors that his two victims were adult men who had forcibly raped Williams when he was as young as 13, and that he had been a victim of sexual abuse since he was six, the jury was not informed about any of this. In recent years, a number of the 12 jurors who originally convicted him and sentenced the teenager to death have now said that had they known about the abuse he suffered — particularly at the hands of the two men he later killed — they would have decided the case differently, and certainly would not have voted for the death penalty. Even the wife of one of his victims has pleaded with the state to spare him.

Nevertheless, the state’s governor, Tom Corbett, a hard-on-crime Republican who, prior to being elected to the state’s top post, served as attorney general, making him the state’s top lawyer, had no hesitation in signing his death warrant earlier this month, with an Oct. 3 execution date.

The irony is that Pennsylvania has just gone through a huge ugly scandal involving the football program at its largest public university, Pennsylvania State University, where the defensive coach on the school’s nationally recognized football team, Jerry Sandusky, was found to have been raping dozens of young boys over a period of some 20 years, at least part of that time with the knowledge of the school’s athletic director and top school officials, who acted to cover up his crimes. Sandusky was tried and found guilty of multiple rapes, and could be sentenced to life in prison.

There are credible allegations that Corbett, as attorney general, ignored charges and evidence forwarded to his office that Sandusky was raping and molesting young boys at Penn State.

In 2007, the U.S. Supreme Court, in a narrow 5-4 ruling, abolished execution for people convicted of murder who were 17 or younger at the time they committed their crime. At the time of that decision there were more than 70 people on the nation’s death rows who had committed their capital crimes while aged 16 or 17. Interestingly, the court majority cited “international opinion” in partial explanation for its decision. Between 1990 and 2007, there were only seven countries that had executed someone under 18: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China. By 2007, even those nations had put a halt to such executions.

Williams’ case stands apart, because one of his two murders was perpetrated after he had turned 18. But the fact of his repeated abuse at the hands of both of his victims, plus his long history of sexual abuse as a child, complicates the picture, painting him clearly as a victim himself.

In most “civilized” countries, this history of abuse would be a clear mitigating factor in determining the appropriate punishment for his crimes, and perhaps even his guilt or innocence.

Meanwhile, while no one will again be executed in the US for a murder committed under the age of 18, those who were facing death before the Supreme Court’s decision merely had their sentences converted to life in prison without possibility of parole, which many critics argue is perhaps worse than death, and which certainly is “cruel and unusual,” particularly given modern neurological research showing that the brain and personality is still not even fully developed at the age of 18, or even 21.

In Pennsylvania alone — a state where the concepts of mercy, compassion and understanding appear to be uniquely in short supply –there are an astonishing 470 prisoners currently serving prison terms of life-without-chance-of-parole who committed their crimes as children. Nationwide, the figure is close to 2600. Some of these people committed their crimes when they were as young as 14. Many, we know, had suffered circumstances of neglect or abuse similar to what Terry Williams endured as a child, but had shoddy defense attorneys who failed to bring such evidence to the attention of the court and the jury, or had prosecutors who deliberately and illegally hid that evidence.

Earlier this year, the Supreme Court ruled in one such case — that of a woman named Trina Garnett, who was convicted of setting a house fire at the age of 14 which killed two young boys — that such permanent sentences were unconstitutional. Garnett, a low-IQ girl with diagnosed mental problems, was serving a life sentence and was 50 at the time that the court, in another 5-4 decision, granted her the right to a new sentencing hearing. All such prisoners sentenced to life in prison as children will now at least have a chance for a re-sentencing hearing.

It’s a small step towards civilized behavior in the nation that today has the highest percentage of its citizens behind bars of any country in the world.

Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas

September 26, 2012 

Brian D. Shannon

Texas Tech University School of Law

Victor R. Scarano

University of Houston – Health Law & Policy Institute


Texas Tech Law Review, Vol. 45, 2013 
This Article focuses on a small, but unique group of death row inmates who have largely exhausted their post-conviction procedural rights and have a date set for execution, but while awaiting execution have become incompetent to be executed because of serious mental illness. The United States Supreme Court has determined that it is unconstitutional to execute an individual who is mentally incompetent. The Court has not, however, ruled as to whether it is constitutionally permissible for a state to order a death row inmate to be medicated forcibly for the purpose of restoring that inmate’s competency to allow an execution to proceed. This Article discusses the scope of the serious ethical concerns related to this very challenging scenario, and reviews state and lower federal court decisions that have considered the issue, as well as United States Supreme Court opinions that have considered other, related medication issues concerning offenders with mental disorders. In particular, however, the Article offers and discuss a possible legislative solution that the Texas Legislature could enact that would avoid the thorny ethical and legal issues that are at stake in such cases.


Number of Pages in PDF File: 32 download here 

JEL Classification: K19

Kentucky’s execution method questioned

September 26, 2012

FRANKFORT, Ky. – Two of the three inmates executed in Kentucky since 1976 didn’t contest their fates and went willingly to their deaths. One attorney worries that, under the state’s new proposed lethal injection rules, the inmate’s attorney won’t be notified in time to stop the process if a future volunteer has a change of heart.

Tom Griffiths, a Lexington attorney, was one of 11 people to address a public hearing Tuesday in Frankfort about Kentucky’s proposed execution method. A death row inmate could change his mind in the days or hours leading to an execution but still be put to death if not given the chance to speak to an attorney, Griffiths said.

“It doesn’t allow for any input at all,” Griffiths said.

The hearing was part of the legal process that could allow the state to resume executing inmates by the spring. The Kentucky Justice Cabinet must submit the proposed regulations to the Legislative Research Council by Oct. 15. The regulations then go to legislative committees for consideration. If there are no delays, state officials expect to appear before Franklin Circuit Judge Phillip Shepherd in February or March to ask him to lift an order barring inmates from being put to death. That order cited problems the judge found with the state’s three-drug lethal injection method.

Kentucky is trying to switch to a method similar to the one used by other states, with either a single dose of the anesthetic sodium thiopental or pentobarbital, a short-acting barbiturate. The state may use two drugs — the anti-seizure medication midazolam, better known as Versed, and hydromorphone, an analgesic known commonly as Dilaudid — if the chemicals used in a single-drug execution are not available seven days in advance.

The state estimates the cost of a single execution under the new process at $81,438. Under the three-drug method, the estimated cost to all the agencies involved was $63,516. The increase appears attributable to rising costs for the services provided by multiple agencies.

Death penalty opponents offered multiple critiques of the proposed method, ranging from access to attorneys to the two-minute time limit a condemned inmate is given to make a final statement. In the last days of a condemned inmate’s life, prison officials restrict access to the inmate, and only prison officials and prosecutors automatically receive legal updates at the prison on the day of an execution.

Public defender Tim Arnold said attorneys need access to phones as well as their clients as the execution nears to discuss legal options, particularly if the inmate opts to stop all appeals.

“We need to have some communication to the clients,” Arnold said.

Mikhail Victor Troutman, a volunteer for the Kentucky Coalition to Abolish the Death Penalty, described the two-minute time limit as unconscionably short.

“The average bowel movement lasts longer from beginning to end,” Troutman said.

Because the proposed method doesn’t call for the state to wait for a final ruling on a stay of execution, a defense attorney must have a way to notify his client of a court ruling once the process begins, public defender David Barron said.

“What if something occurs during the execution?” Barron said.

While critics dominated the comments, victim advocates and relatives called on executions to begin sooner rather than later.

“We, sir, didn’t get two minutes to say our goodbye,” said Katherine Nichols of Shelbyville, head of Kentuckians’ Voice for Crime Victims, whose brother James Carl Duckett Jr. was slain in a case that remains unsolved.

Beverly Walters of Shepherdsville, who carries a photo of her daughter Patricia Vance, who was killed by death row inmate Randy Haight, wants executions to start quickly.

“I’ll be glad to push his drugs,” Walters told The Associated Press.

Death Row Unlikely to Be Source for Organ Donations

Before Gov. John Kitzhaber of Oregon established a moratorium on his state’s death penalty last year, Christian Longo, a death row inmate, started a campaign to allow the condemned to donate their organs.

Longo argued that a new execution protocol that many states — including Texas — have adopted leaves inmates’ organs viable for transplantation.

“While I can potentially help in saving one life with a kidney donation now, one preplanned execution can additionally save from 6 to 10 more lives,” Longo wrote in a plea that Oregon officials denied.

No state allows death row inmates to donate their organs. Although Texas recently abandoneda three-drug cocktail in favor of a single-drug method for execution, the Texas Department of Criminal Justice said it did not intend to change its policy. There are 11,000 Texans on the organ transplant waiting list.

Criminal justice and medical experts say that the idea of recovering organs from willing convicted murderers is fraught with moral, ethical and medical challenges that make it unlikely to ever be an option.

“It’s complicated in ways that are very messy and very fuzzy,” said Richard C. Dieter, executive director of the nonprofit Death Penalty Information Center.

The Criminal Justice Department allows offenders in the general prison population to donate organs, such as kidneys, while they are alive in certain cases and after death if they complete a donor form.

The prospect of death row organ donation, though, prompts several questions, said Dr. David Orentlicher, a co-director of the Hall Center for Law and Health at Indiana University’s Robert H. McKinney School of Law. Is an inmate giving free and informed consent, or is he hoping to win favorable treatment? Would a donation affect jurors in murder cases who are weighing the death penalty versus life sentences? Or prosecutors deciding whether to seek the death penalty? Or governors deciding whether to grant clemency?

There is also the possibility that allowing death row organ donation could lead jurors to issue more death sentences, Orentlicher said.

For prospective recipients, there are emotional and mental considerations, he added.

“People might say, ‘Gosh, I’m walking around with the organ of a murderer,’” he said. “It may be irrational, but I suspect that’s lurking there.”

The condemned have a high risk of carrying diseases like hepatitis and HIV And conditions in the death chamber are not conducive to organ recovery, said Mike Rosson, regional director of the Texas Organ Sharing Alliance. To keep organs viable, they must have oxygen after the brain dies, which means the donor must be on a ventilator, and surgery must be done quickly.

“You don’t have the facility for recovery, and you have transplant surgeons whose oath is to do no harm,” Rosson said. “The situation is just ethically challenging.”

Even if all the moral, ethical and medical questions could be adequately addressed, he said, the yield of usable organs from death row inmates is likely to be small.

“I think there are avenues other than prisoners that the effort expended toward trying to increase donation would be better spent,” Rosson said.

TEXAS – Death row inmate contests the drug – Preston Hughes

September 25, 2012

Preston Hughes, who has been on death row for 23 years for fatally stabbing a teenage girl and a toddler, is suing the state of Texas over the drug it plans to use to execute him in November, claiming officials are “experimenting” on him and other inmates.

Hughes, 46, is arguing that prison officials, facing a shortage of drugs for the three drug “cocktail” formerly used for lethal injection, did no medical testing before changing the protocol to using a single drug, according to court records.

“They are experimenting on death row inmates because there’s never been any kind of medical review, that we know about, that this is a humane way to carry out their legal function,” said Pat McCann, one of Hughes’ attorneys. “I’m not saying they can’t execute people. I’m saying they ought to give it more thought than the time it takes to play a round of golf.”

Officials with the Texas Department of Criminal Justice declined to comment on the pending lawsuit, but said agency officials examined the execution procedures in other states before changing the procedure.

“The one drug protocol has been adopted by several states and has been upheld as constitutional by the courts,” spokesman Jason Clark said in a statement.

Single, lethal dose

The execution protocol was changed from a three-drug sequence to a single, lethal dose of pentobarbital in July because TDCJ’s stock of the second drug expired and it couldn’t get more.

Anti-death penalty groups have for years been pressuring drug companies, especially in Europe, to stop making or selling drugs used in executions.

Since July, three Texas inmates have been executed using one drug.

No testing

The new procedure, McCann said, was put in to effect without any tests.

“They changed the cocktail, fairly dramatically, because they could get it on sale and stockpile it,” McCann said. “But they’re not doctors and they’re not entitled to experiment on my client.”

He said TDCJ did not seek out opinions from any professional in the medical, psychiatric, or psychological fields about whether the new drug would be “cruel and unusual punishment.”

‘Some merit’

Richard Dieter, executive director of the Death Penalty Information Center, said the lawsuit should be litigated, but is unlikely to stop any executions.

“There is some merit to the claim that it is experimenting,” Dieter said. “In the medical field, you would want experts weighing in on what the best protocol would be.”

However, he said, the standard to get a stay of execution is a high hurdle.

“The U.S. Supreme Court has said you have to show a substantial risk of serious pain, not just allege there may be problems,” Dieter said. “There is some merit to the claim, but it’s an ethical claim. Legally, it may have some trouble.”

Hughes is scheduled to be executed Nov. 15 for fatally stabbing a teenage girl and a 3-year-old boy in September 1988.

Girl was raped

Hughes, then 22, was convicted of killing La Shandra Rena Charles, 15, and her cousin, Marcell Lee Taylor, 3, on a dirt trail behind a restaurant in the 2400 block of South Kirkwood.

A medical examiner testified Charles had been raped. Before she died from a stab wound in her throat, Charles was able to tell a police officer that “Preston” did it to her.

When Hughes was arrested, he was on probation for raping a 13-year-old girl in 1985.

CALIFORNIA – Field Poll: Death penalty proposition support closely divided

September 25, 2012

BERKELEY, Calif.  — The results of a statewide survey conducted by the Institute of Governmental Studies at University of California-Berkeley and The Field Poll were released Tuesday. The survey sought to determine prospective voting support and opposition to Proposition 34.

California’s Proposition 34 initiative would repeal California’s death penalty and make life in prison the ultimate penalty for a capital crime. It would go into effect the day after election and apply to all on death row.

More Democrats and independents support Prop. 34, while Republicans tend to oppose the proposition.

Of total likely voters, 42 percent of respondents said they would vote for Prop. 34. Forty-five percent of respondents said they would vote “no” on Prop. 34. Undecided voters made up 13 percent of likely-voter respondents.

Of likely Democratic voters responding, 50 percent said they would vote “yes” for Prop. 34, while 37 percent said they would vote “no”; 13 percent of Democrats were undecided.

Of likely Republican voters responding, 23 percent said they would vote “yes” on Prop. 34, while 65 percent would vote “no”; 12 percent were undecided.

Survey results revealed strongest support for Prop. 34 among political liberals, African-Americans, voters in the nine-county San Francisco Bay Area, and those who have completed post-graduate collegiate work.

The results revealed opposition is greatest among political conservatives and inland residents, particularly those in Northern California outside the Bay Area.

Currently there are more than 700 inmates on death row, the highest in the U.S. No inmate has been executed in California in five years due to a legal battle over execution procedures.

The average delay between sentencing and execution is more than 25 years.

Seventeen U.S. states have abolished the death penalty.

Data reveal public opinion moving away from the death penalty in the past 20 years nationwide and in the state. Earlier respondents believed the death penalty was less expensive than life in jail without parole.

Former supporters working to overturn the death penalty contend the penalty is a waste of money.

The official analysis by the California Legislative Analyst and Director of Finance says Prop. 34 “could” provide savings in the high tens of millions of dollars a year.

Supporters of the death penalty say that changes could be made to speed the process and reduce costs.

The death penalty has been in contention in California since the 1970s, beginning in 1972 when the death penalty was ruled unconstitutional. The penalty has been halted and reinstated several times.

ALABAMA – Amy Bishop sought the death penalty

September 26, 2012

Amy Bishop, a Massachusetts native, is accused of killing her brother in Braintree in 1986.

HUNTSVILLE, Ala. — A former college professor who killed three people and wounded three others during a faculty meeting wanted to go to death row and had to be convinced by her parents to accept a plea deal that spared her life, her lawyer said Tuesday.

Amy Bishop, 47, did not want to live among other ­inmates because she was terrified of being sexually abused in Alabama’s lone prison for women, defense attorney Roy Miller told the Associated Press.

‘‘She wanted to die,’’ he said. Bishop did not want to ‘‘live in a chicken coop the rest of her life,’’ he said.

A judge sentenced Bishop, a Harvard University-educated biologist, to life without parole Monday after jurors convicted her during an abbreviated ­trial.

She had pleaded guilty earlier this month, but state law ­required a trial because she ­admitted to a capital murder charge.

Authorities have said that Bishop opened fire during a University of Alabama biology department meeting Feb. 12, 2010, in Huntsville, ­because she had been denied tenure.

Bishop, who has been held without bond in the Madison County jail since the shootings, could be transferred to Julia Tutwiler, the women’s prison, at any time.

Bishop met at the jail Tuesday with a defense attorney representing her on a murder charge in her native Massachusetts, where she is accused of killing her brother with a shotgun blast in their home in Braintree in 1986.

Authorities initially ruled the shooting accidental, based partly on claims by Bishop’s mother, who said her daughter did not mean to kill Seth ­Bishop, 18 at the time.

Authorities in Massachusetts said they would make a decision later this week on whether to pursue the case.

District Attorney Rob Broussard of Madison County said a prosecutor from Massachusetts phoned him last week to ask about Bishop’s plea.

‘‘He wanted verification from me on the guilty plea and that life without [parole] really means life,’’ Broussard said. ‘‘It does.’’

A spokesman for Norfolk District Attorney Michael ­Morrissey in Massachusetts ­declined to comment.

Miller said Bishop would probably never face trial in Massachusetts because ­Alabama is unlikely to send her there.

‘‘Based on my experience, I don’t foresee her ever going up there to face that,’’ he said. ‘‘Practically speaking, it would be a disaster if she escaped or something happened.’’

Bishop accepted a plea deal in Alabama only after talking with her mother and father, Miller said. ‘‘She was never ­inclined to plead guilty to life without parole,’’ he said.

Bishop attempted suicide once in the county lockup by cutting her wrists, authorities said.

The Justice Department is reviewing allegations of rape, sexual assault, and harassment by male guards at Tutwiler prison after a legal aid group filed a complaint in May.

The Montgomery-based Equal Justice Initiative said it based the assertions on interviews with more than 50 women at the maximum-security prison, north of Montgomery.

Prison system spokesman Brian Corbett said Bishop would probably spend about a month in a cell by herself ­before moving into the prison’s general population.

‘‘I’m sure that every inmate entering the system has their own set of unique fears,’’ ­Corbett said in an e-mail. ‘‘I cannot address hers on an individual basis.’’

Bishop could have been sentenced to death by lethal injection if she had gone to trial and been convicted of capital murder, but none of the victims were pushing for a death sentence and some actively ­opposed it, Broussard said.

‘‘The settlement was a just outcome,’’ he said.