death penalty

Layton lawmaker wants deeper look at Utah death penalty costs

November  27,  2017

A legislator is proposing an in-depth study of death penalty costs so the state will have unambiguous answers at hand as Utah’s capital punishment debate continues.

A bill filed by Rep. Stephen Handy, R-Layton, for the 2018 legislative session would order research of all costs associated with the prosecution and execution of a death penalty case and an expected 25 years of appeals. The data would be compared with the costs of a capital murder convict serving life without parole.

A legislative analyst in 2012 estimated a death penalty case cost $1.6 million more. But Handy said the study was very limited and did not consider all costs. Categories for the larger proposed study would include county and state prosecution and defense costs, plus court, jail and prison expenses.

The new study “doesn’t have to be pro or con death penalty,” Handy said, “but we hear in the Legislature that we should be making data-driven decisions. Let’s find out what it really costs, so when a (death penalty) bill comes up, we will be informed.”

Handy’s proposal comes as Wasatch Front counties continue to wrestle with the costs of death row appeals, such as Doug Lovell’s ongoing battle against his sentence in the 1985 murder of Joyce Yost of South Ogden.

Lovell’s court-appointed attorney for his current death penalty appeal squabbled with the Weber County Attorney’s Office over his payments, leading him to drop from the case last summer, according to previous coverage. Sam Newton was paid $71,500 by the county to represent Lovell in 2016, according to county financial records.

Newton’s replacement, Colleen Coebergh, has a contract for $100,000 to maintain Lovell’s indigent defense.

As capital appeals continue, “There is a very high emotional cost to the families and a cost to the taxpayers,” said Dave Wilson, a Weber County deputy attorney who helps coordinate public defender contracts.

The 2012 legislative study said more than two-thirds of a death penalty case’s costs are borne by the county government.

The U.S. Bureau of Justice Statistics says 33 states and the federal Bureau of Prisons held 2,881 inmates under death sentence at the end of 2015. Utah has nine inmates on death row today, said Maria Peterson, Utah Department of Corrections spokeswoman.

Handy said he realizes his request for a cost study may run against the grain in the capital punishment-friendly Utah Legislature, which reinstated the firing squad option for executions in 2015. Lawmakers also have rejected periodic bills that aimed to drop the death penalty.

Most law enforcement officials support the death penalty, Handy said, recalling an occasion when Weber County Sheriff Terry Thompson “came at me like a house afire” during a public discussion of capital punishment.

“People who are such ardent supporters, they don’t care” about the costs, Handy said.

“But I look at it also as trying to adhere to mainstream conservatism,” Handy said. “This may not be the best use of hard-earned taxpayer dollars, with the costs of education and social services growing exponentially.”

The death penalty “is certainly no deterrent,” Handy argued. He said he wonders “what purpose it has, except for payback or from a vengeance standpoint now.”

In an interview, Thompson challenged Handy’s views.

“Nobody says, ‘Gosh, I love the death penalty,’” Thompson said. “But it is important for the most egregious offenses, when lives are taken, changed forever, and people have to live without their loved ones.”

Consider Charles Manson, the sheriff said.

California prosecutors secured a death sentence against Manson, but after the California Supreme Court overturned the death penalty, the cult leader lived on in prison for the murders he masterminded in 1969.

As a “moral, ethical” matter, “It would have been appropriate to have the death penalty as part of the pending punishment,” Thompson said.

“The costs associated with following through with the death penalty, in my opinion, are irrelevant,” the sheriff said.

Utah’s abbreviated review in 2012 pegged the direct cost of an execution at the Utah State Prison at $195,000. And, it said, “For every offender executed before age 76, there is a projected $28,000 savings per year.”

“There need to be some teeth in our laws for them to be effective,” Thompson said. “I truly believe the death penalty does deter, in many cases that we’ll never know.”

Utah’s Death Row

Michael Anthony Archuleta, 55, re-sentenced Dec. 21, 1989

Douglas Stewart Carter, 62, re-sentenced Jan. 27, 1992

Taberon Dave Honie, 42, sentenced May 20, 1999

Troy Michael Kell, 49, sentenced Aug. 8, 1996

Ronald Watson Lafferty, 76, re-sentenced April 23, 1996

Floyd Eugene Maestas, 60, sentenced Feb. 1, 2008

Ralph Leroy Menzies, 59, sentenced March 23, 1988

Von Lester Taylor, 53, sentenced May 24, 1991

Douglas Lovell, 59, re-sentenced May 4, 2015

Source: Utah Department of Corrections

16 last meal requests from Nevada’s death-row inmates

Convicted murderer Scott Dozier is scheduled to be executed Nov. 14, 2017, the first execution in Nevada in 11 years.  (STAYED)

He will be able to request a last meal, provided it can be prepared at Ely State Prison; no outside food can be brought in.

Below are the last meal requests of prisoners executed in the state of Nevada since July 1954.

Steak
Leroy Linden, executed July 15, 1954 for the murder of Clarence Dodd.

Salami, roquefort cheese and anchovies
Frank Pedrini, executed July 15, 1954 for the murder of Clarence Dodd.

Steak and chocolate ice cream
Earl Lewis Steward, executed Feb. 24, 1960 for the murder of Thomas Jessen.

Chicken, vegetable soup, cherry pie, cheese and coffee
Thayne Archibald, executed Aug. 21, 1961 for the murder of Albert Waters.

Filet mignon, tossed salad with Thousand Island dressing, asparagus, baked potato with sour cream and an unspecified dessert
Jesse Bishop, executed Oct. 22, 1979 for the 1977 murder of David Ballard.

Jumbo shrimp, french fries, tossed salad with French dressing, clam chowder, cookies and candy
Carroll Cole, executed Dec. 6, 1985 for the 1979 murder of Marie Cushman.

Four double bacon cheeseburgers, french fries and a large Coke
William Paul Thompson, executed June 19, 1989 for the 1984 murder of Randy Waldron.

Pepsi
Sean Patrick Flanagan, executed June 23, 1989 for the 1987 murders of James Lewandowski and Albert Duggins.

Pizza with anchovies, apple pie, chocolate ice cream, jelly doughnuts and soft drinks
Thomas E. Baal, executed June 3, 1990 for the 1988 murder of Frances Maves.

Lasagna, chicken Parmesan, salad and ice cream
Richard Allen Moran, executed March 30, 1996 for the 1984 murders of Sandra Devere, Russell Rhodes and Linda VanderVoort.

No special request — standard inmate meal
Roderick Abeyta, executed Oct. 5, 1998 for the 1989 murder of Donna Martin.

Steak, rice, corn, applesauce and a Sprite
Alvaro Calambro, executed April 5, 1999 for the 1994 murders of Peggy Crawford and Keith Christopher.

Crab salad, French bread, 4-ounce lobster tail, mango, cheesecake, vanilla ice cream and aloe juice
Sebastian Stephanous Bridges, executed April 21, 2001 for the 1997 murder of Hunter Blatchford.

Cheeseburger with onions, pickle and tomatoes; french fries; three slices of pepperoni pizza; one pint each of vanilla, chocolate and chocolate chip ice cream; apple; banana; orange; a 20-ounce Coke and a 20-ounce Pepsi
Lawrence Colwell Jr., executed March 26, 2004 for the 1994 murder of Frank Rosenstock.

Two cheeseburgers and a Coke
Terry Jess Dennis, executed Aug. 12, 2004 for the 1999 murder of Ilona Straumanis.

Fish sandwich, french fries and lemon-lime soft drink
Daryl Mack, executed April 26, 2006 for the 1988 murder of Betty Jane May.

Nevada Condemned Inmate Complains of Death Penalty Delay

November  21,2017

 

Nevada death row inmate Scott Dozier appears in a Las Vegas court via video on Wednesday, Nov. 8, 2017, days before his scheduled execution. From the state prison in Ely, where he is scheduled to be executed on Tuesday, Dozier, 46, told Clark County District Court Judge Jennifer Togliatti one last time that he wants his death sentence carried out. (Michael Quine/Las Vegas Review-Journal) The Associated Press

 The Nevada death row inmate whose execution was postponed last week is complaining to a judge that he’s suffering what he calls an open-ended and unnecessary delay.

State prisons spokeswoman Brooke Keast said Tuesday that Scott Raymond Dozier (DOH’-sher) was returned to suicide watch on Nov. 14, the day he had been scheduled to die by lethal injection at Ely State Prison.

Dozier turned 47 on Monday.

He has volunteered die, and would become the first person executed in Nevada since 2006.

Court documents show that he sent a Nov. 13 letter asking Clark County District Court Judge Jennifer Togliatti to lift a stay of execution that she issued over concerns about the three-drug cocktail that prison officials want to use.

The matter is now destined for review by the Nevada Supreme Court.

 

Death row inmate in ‘Angola 5’ case wants Louisiana Supreme Court justice recused over death penalty comments

November  21,2017

Update, 2 p.m. Tuesday

Louisiana Supreme Court Justice Scott Crichton recused himself on Tuesday from the pending appeal of death row inmate David Brown in the “Angola 5” prison-guard murder case. Read the latest here. 

Original story

Louisiana Supreme Court Justice Scott Crichton has proven a popular guest on local talk radio in his native Shreveport, frequenting the airwaves with his views on hot-button legal issues since long before he reached the state’s highest bench three years ago.

But his on-air defense last month of capital punishment has spurred attorneys for death-row inmate David Brown to call for Crichton to be sidelined for Brown’s pending appeal in the “Angola 5” prison-guard murder case.

Crichton, a former Caddo Parish prosecutor and district judge, mentioned the Angola 5 case on the KEEL morning show on Oct. 23 to illustrate his view that the death penalty can be a valuable deterrent. He agreed with a show host that “if you’re in for life, you have nothing to lose” without it.

Brown was serving a life sentence for a different murder when Capt. David Knapps was killed inside a bathroom at the state penitentiary.

In a 24-page motion filed late Monday, his attorneys argue that Crichton’s mention of the Angola 5 case alone warrants his recusal. Crichton went further, however, and Brown’s attorneys argue that his other on-air remarks reveal at least the appearance of bias in Brown’s case, and perhaps in any capital case that reaches the court.

n the Oct. 23 show, Crichton first acknowledged that he “can talk about anything other than a pending case before the Louisiana Supreme Court,” then mentioned the Angola 5 case. He went on to lament the lengthy appeals process in death-penalty cases and argued for well-publicized executions.

“If it’s carried out and the public knows about it, I believe it’s truly a deterrent,” he said. “What really boggles my mind is the inmate who has committed capital murder who is on death row who is begging for his life. Think about the fact that the victim gets no due process.”

Crichton suggested a workaround to problems many states have had in acquiring one of three drugs in a commonly used “cocktail” for state killings — a shortage he blamed on drug companies being “harassed and stalked” by death-penalty opponents.

Crichton said he favors giving condemned inmates a choice in their death: the cocktail; a new method using a single drug, nitrogen hypoxia; or another, time-tested execution method.

“Firing squad is one,” he said.

Brown had joined other prisoners in an escape attempt but claimed he wasn’t there when Knapps was killed inside an employee restroom in the prison’s Camp D building on Dec. 28, 1999. Brown helped drag Knapps there and got the victim’s blood on his prison garb, but said he’d left before other inmates killed Knapp.

The state never accused him of striking Knapps but argued he had joined in a plot with a specific intent to kill. A West Feliciana Parish jury convicted Brown and sentenced him to death in 2011. Jeffrey Clark, the other Angola 5 member sentenced to death, lost his appeal before the Louisiana Supreme Court last year.

Crichton was among the majority in a Supreme Court decision last year that reinstated the death penalty for Brown. The court upheld an appeals court’s reversal of a decision by retired Judge Jerome Winsberg to scrap Brown’s death sentence but not his conviction.

Winsberg cited a statement from another inmate that Brown’s trial attorneys never received. Inmate Richard Domingue claimed that Barry Edge, who also was accused in the murder, had confessed that he and Clark alone decided to kill the guard.

The withheld statement left a “reasonable probability that the jury’s verdict would have been different had the evidence not been suppressed,” Winsberg ruled. But the Supreme Court found that Domingue’s statement “provides no additional evidence as to who actually killed Capt. Knapps” and “simply does not exculpate Brown.”

The U.S. Supreme Court last year declined to hear Brown’s case. His direct state appeal, a different legal phase, landed with the Louisiana Supreme Court in May. One of Brown’s lawyers, Billy Sothern, wrote that he plans to raise several issues in an appeal brief due next month that Crichton alluded to on the radio. Among them: Whether a death sentence is disproportionate to Brown’s role in the killing, and the constitutionality of lethal injection.

Brown’s attorneys solicited an affidavit from a Northwestern University law professor, agreeing that Crichton should recuse himself. Professor Steven Lubet, who co-authored a 2013 text called Judicial Conduct and Ethics, said Crichton’s “impartiality might reasonably be questioned” over his mention of the Angola 5 case, and when he said about the death penalty, “If we’re gonna have it, use it.”

The other six justices would rule on the request if Crichton decides not to recuse himself. Crichton could not be reached for comment Tuesday.

South Carolina Schedules First Execution in more than Six Years

November 20,  2017

South Carolina has scheduled its first execution in more than six years.

The State Department of Corrections said Friday it had received an order from the South Carolina Supreme Court setting a December 1 execution date for 52-year-old Bobby Wayne Stone.

Stone has been on death row for 20 years in connection with the 1996 shooting death of a sheriff’s sergeant.

TEXAS – Prosecutor asks for current medical standards in death penalty evaluations

When determining whether someone with a death sentence has a mental disability, Texas has long used outdated standards partially created by elected judges. Now that those standards have been ruled unconstitutional, one district attorney wants the state to use a markedly different measuring stick: current medical science.

Harris County District Attorney Kim Ogg sent a brief to the Texas Court of Criminal Appeals Wednesday afternoon in the case of Bobby Moore, a man convicted in the 1980 shooting death of a Houston supermarket clerk. Ogg now says Moore is intellectually disabled, but the questions surrounding the prisoner’s mental capacity led to a March Supreme Court ruling that invalidated Texas’ method of determining intellectual disability for death row inmates.Justice Ruth Bader Ginsburg wrote in the court’s opinion that the state’s test created an “unacceptable risk” of executing intellectually disabled people, a practice deemed unconstitutional.

But while the ruling tossed out Texas’ old way of determining disability, it didn’t create a new one. Instead, cases of death-sentenced inmates who were deemed competent for execution under the old test were suddenly ripe for new litigation, and at least two men who had been on death row for decades had their sentences changed to life in prison — all while awaiting a final ruling on Moore’s intellectual capacity.

Ogg asked for Moore’s sentence to be reduced to life in prison, and her brief also asked Texas to create a new way of determining intellectual disability — one that sticks to the medical books.

“‘Unacceptable risk’ necessitates that the States should strictly adhere to the definitions of intellectual disability as contained within the most current versions of the clinical manuals,” said the brief.

She implored Texas to conform to the standards set by the American Psychiatric Association, similar to how Louisiana and Mississippi determine intellectual disability. If the Texas court accepts Ogg’s suggestion, death penalty experts say it will put Texas in line with the Supreme Court’s ruling and will put fewer Texas death penalty cases in front of the high court in the future.

“You don’t have the same systemic problems in states that are using medical definitions,” said Robert Dunham, executive director of the Death Penalty Information Center, a national organization critical of current death penalty practices. “We see persistent problems in states [that] have adopted standards that are clearly inconsistent with the contemporary medical standards or have created procedures that make it virtually impossible to prove intellectual disability.”

Dunham said in general that states have sought to conform to previous Supreme Court rulings, but others — Texas, Georgia, Missouri, Arkansas and Florida — have created hurdles for proving the disability. He said the best way for Texas to avoid future problems is to use existing medical standards.

The Texas Attorney General’s Office, which represents the state in federal death penalty appeals, and several district attorneys in counties where intellectual disability cases are in play did not return phone calls Thursday.

In 2002, the Supreme Court ruled that executing people with intellectual disabilities is unconstitutional under the Eighth Amendment, but it left it up to the states to determine how to qualify the condition. The legal definition of intellectual disability doesn’t have to fully match a medical definition, but it does have to be informed by the current medical frameworks, according to the court.

The Texas Court of Criminal Appeals created its own method two years later. Death penalty critic Judge Elsa Alcala wrote in a 2015 opinion that the test was only meant to be a temporary solution “in the absence of any legislative guidance.” The method found inmates facing execution intellectually disabled if their IQ was 70 or below. If an IQ was above 70 but close enough to be within a margin of error (the state put Moore at 74), the court would look at how well the person functioned in daily life by referencing 1992 medical guidelines and a controversial set of questions called the “Briseno factors.”

The factors included questioning if a neighbor or family member would consider the person disabled, the person’s ability to lie and the planning involved in the murder. In its March ruling, the U.S. Supreme Court said the Briseno factors strayed too far from medical-based frameworks.

“The [Court of Criminal Appeals] overemphasized Moore’s perceived adaptive strengths — living on the streets, mowing lawns, and playing pool for money — when the medical community focuses the adaptive-functioning inquiry on adaptive deficits,” Ginsburg wrote.

Chief Justice John Roberts agreed with the incorrect usage of the Briseno factors but wrote in a dissenting opinion that the court’s majority tossed the Texas court’s ruling without considering societal standards.

“The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability,” Roberts wrote. “But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.”

It’s unknown when the Texas court will make a decision in Moore’s sentence or a new way to determine intellectual disability. In the meantime, the death penalty’s intersection with intellectual disability is up in the air.

No Second Chances: What to Do After a Botched Execution

November  18, 2017

The pathos and problems of America’s death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich set June 5, 2019, as a new execution date.

This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.

Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.

By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America’s death-row inmates, the passage of time had inflicted its own punishments.

The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailments, including lung cancer, COPD and respiratory failure. Campbell has had prostate cancer and a hip replacement. He needs daily oxygen treatments, uses a walker and is tethered to a colostomy bag.

Ohio officials were so aware of Campbell’s breathing problems that they provided a wedge-shaped pillow to raise his head, so he could breathe more easily as it set about to end his life.

Officials had been warned about the difficulty of finding a usable vein, and the Ohio Department of Rehabilitation and Correction had problems finding Campbell’s veins during a recent exam.

Nonetheless, the state went ahead with his execution.

On Wednesday, the execution team tried four different places in Campbell’s arms and right leg to insert the needle through which to administer lethal drugs. After 30 minutesit stopped the execution and returned Campbell to death row.

Stopping an execution before it is completed is quite unusual, even if serious problems occur during the procedure. Those serious problems are not rare: Approximately 3 percent of American executions were botched during the 20th century, and 7 percent of lethal injections have been botched since its first use in 1982.

But Campbell’s was one of the very few executions to be halted since the mid-1940s.

The first of those was Louisiana’s botched electrocution of Willie Francis, in which the current of electricity was not sufficient to kill him.

The second time an execution was stopped in mid-course occurred in Ohio during the 2009 effort to put Romell Broom to death. The execution team could not find a usable vein. After two hours of repeatedly poking and stabbing Broom’s arms and legs, they gave up.

In April 2014, when Oklahoma tried to execute Clayton Lockett, officials also had problems finding a usable vein. They finally inserted the needle into a vein in his groin. When the lethal drugs were administered, Lockett struggled violently: The needle had dislodged from the vein into a muscle. Ultimately the execution was stopped before Lockett was killed. Sometime later he died of a heart attack while still strapped to the gurney.

Lockett’s death was one of the more gruesome in America’s history of botched executions, but it spared the state an ethical and legal question that faced officials in the Francis and Broom cases, and now faces Ohio officials who failed to execute Campbell. What should be done with him?

Should the state, having failed in its first execution attempt, be able to try again? Are we well served when we force the condemned to undergo the psychological torture of having to prepare to die, only to have to relive the experience of execution a second time?

The courts bent over backward to permit a second execution in the Francis and Broom cases. In the former, the United States Supreme Court ruled that the state would only be barred from going through with a second execution if it had intentionally botched the first. Even if the state were careless or negligent in its first execution attempt, the court said, it could still proceed with another. The state of Louisiana went ahead and put Francis to death.

In March 2016, the Ohio Supreme Court rejected an appeal by Broom to stop his second execution. The court reaffirmed the Francis precedent and added that since the lethal chemicals had not begun to flow when his execution was halted, his “punishment” had not really begun. The United States Supreme Court refused to hear his appeal that a second execution would constitute double jeopardy and cruel and unusual punishment. Broom awaits his execution date on Ohio’s death row.

The fine legalisms of the Francis and Broom decisions give the state too much room for error in the serious business of putting someone to death. If the state is going to kill, it should have the burden of getting it right the first time. The law should allow no second chances.

I say this not out of sympathy for those whose heinous acts bring them to the death chamber, but because how a society punishes reveals its true character. Punishment tells us who we are.

When we punish cruelly we create “a class of punishers whose lives are wasted and their characters depraved so that as citizens they become almost as undesirable as the criminals they torture.”

Those are the words of a playwright, George Bernard Shaw, and, as Ohio considers what to do with Campbell, it should heed his warning. Ohio failed to execute Alva Campbell, despite all the warning signs of the risk of failure because of his weakened physical state. Now, Ohio’s citizens and public officials should be careful, lest in their eagerness to try a second time, they “become almost as undesirable” as the murderer they seek to execute.

PHOENIX – John Allen gets death penalty in murder of 10-year-old girl

November 16,2017

Jurors in Maricopa County Superior Court deliberated for only a few hours before deciding that John Allen should get the death penalty.

The jury previously determined that Ame Deal’s death was especially cruel or heinous.

Allen, 29, was convicted of first-degree murder and child abuse on Nov. 8.

His 28-year-old wife, Sammantha Allen, was a cousin of Deal’s and was convicted of murder in the girl’s death in June. She’s now the third woman on Arizona’s death row.

Prosecutors said the couple forced Ame into the small, plastic box as punishment for stealing ice pops. They went to sleep and the girl was found dead the next morning.

Defense attorney Robert Reinhardt had argued that John Allen, a father of four young children, did not intend for the girl to die and that the other adults in the home created the abusive environment.

But County Attorney Bill Montgomery said Thursday that the Allens “received the only proportionate penalty that could rightly be imposed for the torture and pain they put Ame through. Ame deserved so much more from the adults responsible for her care.”

Ame’s death was the culmination of a shocking history of abuse at the hands of relatives who were charged with caring for her.

Authorities said the girl was forced to eat dog feces, crush aluminum cans barefoot, consume hot sauce and get in the storage box on other occasions.

She also was kicked in the face, beaten with a wooden paddle and forcibly dunked after being thrown in a cold swimming pool, according to police investigators.

Adults at the home originally claimed Ame hid during a late-night game of hide-and-seek and wasn’t found until hours later.

Three other relatives are in prison serving sentences for abusing Ame.

David Deal, who is listed as the girl’s father on her birth certificate, is serving a 14-year sentence after pleading guilty to attempted child abuse.

Ame’s legal guardian at the time of her death was her aunt, Cynthia Stoltzmann, who is serving a 24-year prison sentence for a child abuse conviction. Ame’s grandmother, Judith Deal, is serving 10 years for child abuse.

Authorities said Ame’s mother left the family years earlier after suffering abuse from relatives and moved to Kansas without her daughter.

Executions Scheduled for 2018

Executions Scheduled for 2018

Month State Prisoner
January
2 PA Sheldon Hannibal — STAYED
3 OH John Stumpf — RESCHEDULED
3 OH William Montgomery — RESCHEDULED
18 TX Anthony Shore
25 AL Vernon Madison
30 TX William Rayford
February
1 TX John Battaglia
13 OH Warren K. Henness — RESCHEDULED
13 OH Robert Van Hook — RESCHEDULED
13 OH Raymond Tibbetts
22 TX Thomas Whitaker
March
14 OH Douglas Coley — RESCHEDULED
14 OH Warren K. Henness — RESCHEDULED
20 MO Russell Bucklew
27 TX Rosendo Rodriguez
April
11 OH Melvin Bonnell — RESCHEDULED
11 OH William Montgomery
May
30 OH Stanley Fitzpatrick — RESCHEDULED
June
27 OH Angelo Fears — RESCHEDULED
July
18 OH Robert Van Hook
August
1 OH David A. Sneed — RESCHEDULED
September
13 OH Cleveland R. Jackson
October
10 OH James Derrick O’Neal — RESCHEDULED
November
14 OH John David Stumpf — RESCHEDULED

In the Execution Business, Missouri Is Surging

Defense lawyers call it a crisis; the state says it’s just doing its job.
Since Texas carried out the country’s 1st lethal injection in 1982, the state has performed far more executions than any other state. To date, 528 men and women have been put to death in Texas, more than the total in the next 8 states combined.
But viewed from a slightly different angle, Texas has lost its place as the epicenter of the American death penalty, at least for the moment.
Since November 2013, when Missouri began performing executions at a rate of almost 1 per month, the state has outstripped Texas in terms of the execution rate per capita. In 2014, both states executed 10 people, but Texas has more than 4 times the population of Missouri. This year, the difference is not quite as stark (Texas: 10, Missouri: 5) but Missouri still ranks number 1. The state that has become the center of so many conversations about criminal justice through the courts and cops of Ferguson is now the center of one more.
Why?
The politicians, judges and prosecutors who keep the system running at full steam simply say the death penalty is a good thing and the pace of executions is a sign that nothing is gumming up the pipes of justice. Defense attorneys are more eager to talk about the reasons for the current situation. They tend to use the word “crisis.”
The Drugs
The most important reason for the rise in Missouri’s rate of execution is also the most mysterious. As other states have dealt with a nationwide shortage in lethal-injection drugs by turning to new and experimental combinations – leading to grisly botched executions (Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona) and lawsuits that have slowed down the pace of executions – Missouri has managed to get a steady supply of pentobarbital, a common execution drug.
Like their counterparts in all death-penalty states, Missouri officials are pushing in court to keep the source of their pentobarbital a secret. Texas has also exclusively used pentobarbital for executions in recent years, but has struggled to find a compounding pharmacy that will produce it. In Missouri, corrections officials had also struggled, but now have managed to stockpile the drug.
“We’re the only state in the union with no trouble getting pentobarbital,” says Cheryl Pilate, a Kansas City attorney who has represented death-row inmates. The pentobarbital made by small, generally unregulated compounding pharmacies – the choice in Texas – does not have a long shelf-life, leading Pilate and her colleagues to wonder whether Missouri officials are getting the drug from a veterinary supplier (the drug is often used to euthanize animals) or a manufacturer from overseas. Attorney General Chris Koster recently said in a court filing, quoted by BuzzFeed, that “Missouri uses pentobarbital as the lethal chemical in its execution process, but does not admit nor deny the chemical now used is compounded as opposed to manufactured.”
The Governor and the Attorney General
Attorney General Koster, as well as Missouri Governor Jay Nixon, are both Democrats and both outspoken supporters of the death penalty. Nixon himself was the attorney general before Koster, so both have overseen the state’s side in fighting the appeals of death-row inmates, pushing them along toward execution. Koster has suggested that the state set up a laboratory to make its own supply of lethal-injection drugs.
Nixon has the power to commute death sentences to life in prison, but he has done so once in his 6 1/2 years as governor, and he provided no explanation for why. Many political commentators have speculated that Nixon and Koster, as Democrats in a primarily conservative state – where the electoral votes went to Mitt Romney in the 2012 presidential election – use executions to establish their tough-on-crime bonafides. “As a Democrat in public office, you would lose a lot of votes by not being enthusiastically in support of the death penalty,” says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City.
Nixon and Koster’s support for the death penalty fits a historical pattern of death-penalty support among blue governors in red states. In the 1990s, Texas Governor Ann Richards never commuted a death sentence and Arkansas Governor Bill Clinton famously flew home from the presidential campaign trail to preside over an execution of a man missing part of his brain. (Nixon had his own similar case earlier this year.) At the same time, Republicans in states near Missouri – Governor John Kasich in Ohio and former Governor Mike Huckabee in Arkansas – have regularly granted clemency to death-row inmates.
Nixon’s office did not respond to a request for comment on the politics of the death penalty, while Koster’s press secretary, Nanci Gonder, replied that he “has consistently supported the death penalty for the most serious murder convictions” and “1 of the duties of the Attorney General is to ensure that legal punishments for violating Missouri’s criminal laws are carried out.”
The Courts
Sean O’Brien, a professor at University of Missouri-Kansas City School of Law, spent much of his career defending death-row inmates and recalled a case in which the judges at the Missouri Supreme Court ruled against the prosecution. In 2003, the court ruled in favor of a man who committed a murder before turning 18, a decision that was later ratified by the U.S. Supreme Court and became the basis for a nationwide ban on the execution of juveniles.
Missouri Supreme Court judges are appointed by the governor, and in 2013 Governor Nixon selected Judge Mary Russell to be chief justice, overseeing the setting of execution dates. Her court set up the 1-a-month schedule in November of that year. When she stepped down in July this year, she told several reporters that the pace of executions picked up because they had been on hold during the lethal-injection drug shortage. Once the state had the drugs, she said, “there were a number of people who had been backlogged whose appeals were exhausted.”
“It’s required by law that the Supreme Court shall set execution dates,” she added. “It’s not that we agree or disagree with the death penalty.”
The Eighth Circuit U.S. Court of Appeals, which has final say over death cases in Missouri, rarely stops executions, according to O’Brien, the law professor. “We’ve got a situation where all 3” – the governor, attorney general, and supreme court – “are lickety-split gung-ho on this, and the federal courts aren’t stopping them.”
The Defense Bar
During a short phone interview last week, the Missouri capital-defense attorneys Cheryl Pilate and Lindsay Runnels used the words “crisis,” “disaster,” “horrific” and “overwhelming” as they described their “extremely small and embattled defense bar.” They see their cohort’s rushed work and missed deadlines and paltry resources as signs of broader problems with public defense in the state. Missouri was ranked 49th by the National Legal Aid & Defender Association in per-capita spending on indigent defense in 2009.
My colleague Ken Armstrong has chronicled the experience of one overburdened defense lawyer who dealt with the executions of 2 clients over 2 months at the end of 2013. In a March 2015 letter to the Missouri Supreme Court, members of the American Bar Association Death Penalty Assessment Team wrote, “The current pace of executions is preventing counsel for the condemned from performing competently.”
“You live in a perpetual state of tension,” Pilate said, “thinking your client could be next.”
This state of affairs may not last. A pending lawsuit over the secrecy of the lethal injection drugs might force the state to divulge its source, allowing for more litigation that could lead to a slow-down. The Missouri Supreme Court will soon have a new chief justice. A future Republican governor or attorney general could follow the lead of Kasich or Huckabee. The defense bar may get more help from national anti-death penalty groups now that the state is ground zero. For now, though, as the death penalty declines nationally, Missouri is headed in the other direction.
Source: themarshallproject.org, August 31, 2015