Day: November 5, 2012

Lawsuit has potential to stay all executions in Pennsylvania

NOVEMBER 4, 2012

It’s been more than a decade since Pennsylvania executed an inmate on death row. Although another execution is scheduled for Thursday, it’s possible the execution will not happen and that the chamber at Rockview State Prison will remain empty for some time to come.

There’s a little-known 6-year-old federal class action lawsuit — Chester v Beard — that has the potential to stay all executions in Pennsylvania until it is resolved.

04michael.jpgHUBERT MICHAEL

The suit challenges the constitutionality of Pennsylvania’s execution protocol; the “class” in the action is composed of all inmates on death row, and there’s a hearing in the case Monday morning.

The immediate relevance is the pending execution of Hubert Michael, whose lawyers have asked the judge for a stay.

Michael is on death row for the July 12, 1993, murder of 16-year-old Trista Eng near Dillsburg in York County.

Michael, who was living in a boarding house in Lemoyne at the time, picked up Eng as she walked to work at the Dillsburg Hardee’s on Route 15. He drove her to a remote area of State Game Lands 242 and shot her three times with a .44 magnum — twice in the chest and once in the head.

When Michael subsequently pleaded guilty to the murder, he said he had been frustrated with women due to an unrelated rape charge in Lancaster County.

His attorneys recently asked a federal judge to reopen his appeals proceedings, citing serious mental health issues as the reason for Michael having repeatedly changed his mind on whether or not he wanted the appeal to proceed.

There’s a hearing on that later this week.

But the separate class action suit, in which his attorneys have also filed a motion for a stay, has the potential to affect all executions in Pennyslvania.

The U.S. Supreme Court ruled in 2008 that death by lethal injection is not — in and of itself — unconstitutional, but the ruling left open the possibility that individual state protocols for lethal injection could be challenged on constitutional grounds.

At issue is the fact that two of the three drugs used in the procedure can cause excruciating pain if the first drug — a fast-acting barbiturate — is an insufficient dose or improperly administered. What’s more, the second drug paralyzes the person, so he would not be able to communicate the fact he’s in excruciating pain. For this reason several states have banned use of the second drug when euthanizing animals.

In an oft-cited concurring opinion in the 2008 decision, Justice John Paul Stevens wrote, “It is unseemly — to say the least — that Kentucky may well kill [inmates] using a drug that it would not permit to be used on their pets.”

Nevertheless, the Supreme Court — including Stevens — ruled that Kentucky’s protocol passed constitutional muster.

Among the issues raised in the Pennsylvania case is the source of drugs to be used in the execution.

Certain drug manufacturers have banned the use of their product in executions, and lawyers for the prisoners argue that if black market or diluted drugs are used, the procedure could be unconstitutional.

The Department of Corrections argues that revealing the source of the drugs could result in the source refusing to sell them the drugs.

Two federal judges have ruled that the source of the drugs is pertinent and ordered DOC to reveal the information, but in doing so, both judges recognized DOC’s concern and ordered the information to be kept confidential. DOC refused.

Last week, Secretary of Corrections John Wetzel, on the advice of lawyers from the Attorney General’s office, refused to divulge the source of the drugs desipte the federal court orders.

Today’s hearing now includes a request for sanctions against Wetzel and DOC for “clear, flagrant and deliberate” violation of federal court orders.

With the parties in the case still fighting over discovery, it’s possible there might be no final resolution soon.

Experts in death penalty law say execution stays could be likely as long as the case is open.

Marc Bookman of the Atlantic Center for Capital Representation said the judge in the Pennsylvania case — Yvette Kane — “is a thorough judge who wants to do it properly.”

He noted that, “Lethal injection litigation has stayed executions in other states.”

Michael’s death warrant is the only one signed by Gov. Tom Corbett that has not been stayed for some other reason.

If Kane grants a stay, and if Chester v Beard continues its path through federal court, it could render any future death warrants moot until the case is settled.

When asked about that, Janet Kelley in the governor’s press office said, “The governor took an oath to uphold the law, and the law in Pennsylvania includes signing execution warrants.”

California’s Death Penalty: All Cost and No Benefit by Danny Glover and Mike Farrell

November 4, 2012

While many important issues will be decided this Tuesday, one stands out for its national and historic importance: In California, the future of the death penalty hangs in the balance with Proposition 34. Also known as the SAFE California Act of 2012, Prop 34 will replace the death penalty with life in prison with no possibility of parole.

The fact is, California’s death penalty is all cost and no benefit. The latest Field Poll, out Friday, shows that more voters than ever before support replacing the death penalty, and that Prop 34 is leading in the polls. The Field Poll says 45 percent of likely California voters support Prop 34, while 38 percent oppose. Of those who have already voted, a full 48 percent said they voted yes, while 42 percent voted no.

A big reason for the spectacular surge in support is people’s awareness that the Golden State is flat broke. Voters now understand that the death penalty is far more expensive than life in prison with no chance of parole. They realize that California has sunk billions of dollars into a broken system — while most death row inmates die of old age.

The costs come from special housing, special lawyers and special trials imposed by the U.S. Supreme Court to lessen the risk of executing another innocent person. And those costs really add up. According to The Legislative Analyst’s Office, a nonpartisan government agency, Prop 34 will save the state $130 million every year. A comprehensive five-year study by Federal Judge Arthur Alarcón (who is pro-death penalty) and Loyola Law Professor Paula Mitchell (who is not) showed the state has spent $4 billion on the death penalty since 1978. They’ve just updated that report to show that California is on track to spend $5 to $7 billion, over and above the cost of a sentence of life in prison without parole, between now and 2050. Five to seven billion dollars!

It’s staggering to realize that with all those billions spent, California has executed only 13 inmates since 1978, at a cost of about $307 million per execution.

But money’s not everything. The fact is that the death penalty is not making us any safer. A shocking 46 percent of murders and 56 percent of reported rapes go unsolved in California every year. California Crime Victims for Alternatives to the Death Penalty released a report yesterdayshowing that underfunded, overburdened crime labs with long backlogs can’t process the evidence needed to solve crimes. Prop 34 would direct $100 million of the savings into local law enforcement programs and activities, like DNA testing, fingerprint analysis, and better funding of local crime labs, so we can find the criminals responsible and put them in jail. It’s no secret that the best way to prevent crime is to solve it.

California’s Prop 34 vote has all the markings of a historic shift away from the death penalty in the United States. Support for undoing this ineffective policy in the nation’s largest and most populous state is broad and deep, and includes some surprising voices. Supporters include the lead campaigner for the 1978 death penalty initiative, Ron Briggs, the author of that original law, Don Heller, former LA District Attorney Gil Garcetti and staunch conservative Bill O’Reilly. Jeanne Woodford, a life-long corrections professional who served as Warden of San Quentin and oversaw four executions is the official spokesperson for the initiative. The Sacramento Bee even reversed its 155-year support for the death penalty to endorse YES on 34, joining 47 major newspapers from across the state.

The vote in California will be felt far and wide. Our state has the dubious distinction of housing nearly one-quarter of the nation’s death row inmates and the most expensive death row in the nation. Tragically, California leads the nation in wrongful convictions at 123, according to theNational Registry of Exonerations. So if any state could make another fatal mistake, it’s this one. Passing Prop 34 will ensure that doesn’t happen.

What’s clear is that the death penalty is broken beyond repair, and it’s time to replace it with life in prison without the possibility of parole. We support Prop 34 — and we encourage California voters to get the facts and vote YES on 34 on Tuesday.