[Deathpenalty] death penalty news----CONN., PENN., FLA., ALA., CALIF, . ORE., USA

[Rick Halperin]

Nov. 11



CONNECTICUT:

William Petit is elected to Connecticut state senate 9 years after his wife and 
daughters were killed in a vicious home invasion


The doctor whose wife and 2 daughters were murdered in a horrific home invasion 
in 2007 has been elected to the Connecticut state senate.

Dr William Petit, the sole survivor of the attack that claimed the lives of his 
family, defeated Betty Boukus in the 22nd District, which covers Plainville and 
New Britain.

His wife Joanna Hawke-Petit, 48, and their daughters Michaela, 11, and Hayley, 
17, died in their family home at the hands of Joshua Komisarjevsky and Steven 
Hayes.

Mrs Hawke-Petit was raped and strangled and the 2 daughters were both sexually 
assaulted before being tied to their beds and burned alive.

Dr. Petit was beaten with a baseball bat, tied up and taken to the basement, 
but he managed to escape and crawl to a neighbor's house for help.

The trial in 2011 heard how his wife was forced to withdraw $15,000 from a bank 
after the criminals threatened to harm her family.

When they returned, Mrs Hawke-Petit was raped before being strangled to death.

Her 11-year-old daughter was also sexually assaulted.

Komisarjevsky and Hayes then doused the home in Cheshire, Connecticut, with 
gasoline and set it ablaze.

Hayley and Michaela died on 23 July 2007 of smoke inhalation while tied to 
their beds - unable to escape.

Dr Petit revealed the details of what happened on that fateful night in his 
book, The Rising, Murder, Heartbreak, and the Power of Human Resilience in an 
American Town, by Ryan D'Agostino.

Komisarjevsky and Hayes were both initially sentenced to death, but they were 
taken off death row and re-sentenced to life imprisonment.

Dr Petit, a Republican, said he has no plans to try to revive Connecticut's 
death penalty when he won his state senate seat.

The race hit the headlines last month when a labor union's political action 
committee ran an advert that tried to link Petit to Donald Trump and 'attacks 
on women and families.'

Speaking at the time, Dr Petit said: 'I feel they're quite malicious and attack 
my character and reputation and have absolutely no truth.

'I'm appalled that anyone would stoop this low.'

(source: dailymail.co.uk)






PENNSYLVANIA:

Death penalty sought for Cumberland County dad accused of shaking, beating 
infant son


In the 6 weeks that Connor Howard-Bee was alive, he was shaken, beaten, 
squeezed and even had thumbs pressed into his eyes, all in an effort to get him 
to stop crying, authorities say.

The young boy died from his injuries a year ago, and his 23-year-old father, 
John Tyler Howard-Bee, is facing the death penalty.

But his trial in Cumberland County Court won't come for yet another year.

Howard-Bee, of South Middleton Township, is facing charges that include 
1st-degree murder, aggravated assault and child endangerment in the death of 
his son, whom police say had multiple skull fractures, brain swelling, 
hemorrhages, a broken femur, fractured ribs and bruises on his body that were 
too numerous to count.

A pre-trial hearing was held on Thursday, and Judge Thomas A. Placey set a 
trial date for Nov. 6 - a year away at the request of the Cumberland County 
Public Defender's Office as they prepare for the death penalty case.

1st-degree murder is the only crime in Pennsylvania that is punishable by 
death, and at least 1 of a list of 18 possible aggravating circumstances must 
be present in order to seek the death penalty.

Senior Assistant District Attorney Nathan Boob said he gave notification 
earlier that the office is seeking the death penalty because the aggravating 
circumstances of torture and the child's young age are present in this case.

When charges were first filed last year, Cumberland County District Attorney 
David Freed said, "If you look at the injuries that took place and you consider 
the short time [the baby] was on the planet, and the healing fractures, you can 
draw a reasonable conclusion that this was going on from very, very early on 
and it was sustained."

Connor was also malnourished, making this one of the worst cases local law 
enforcement has seen, he added.

Medical personnel found the child unresponsive in Howard-Bee's mobile home a 
year ago today, and police say Howard-Bee denied causing the injuries, telling 
police the baby had fallen off of a bed and possibly hit his head.

But investigators say Howard-Bee shook his son and yelled, "Why won't you let 
me sleep?" when he was bothered by the child's crying. Connor continued to cry, 
and his father struck him and jammed his thumb into the baby's eye socket in an 
attempt to stop him, according to police.

Connor was pronounced dead 2 days later at the Penn State Milton S. Hershey 
Medical Center.

An autopsy revealed the boy died of multiple traumatic injuries.

His heart was donated to the Gift of Life Donor Program, Freed said, adding, 
"We are going to do our utmost to get justice for this little boy."

(source: pennlive.com)






FLORIDA:

Florida Supreme Court upholds death row inmate's sentences in 2007 Polk County 
murders


The Florida Supreme Court on Thursday upheld the death sentences of a man 
convicted of committing 5 murders in the span of a week in Polk County.

The rulings come less than a month after the court ruled in Hurst vs. Florida 
that Florida juries must unanimously decide to put a defendant to death.

In 1 ruling, the court upheld the death sentences Leon Davis Jr. received for 
the murders of 2 men. That was in part because he waived his right to have a 
jury in the penalty phase of that case. Instead, Davis, now 38, opted to let 
the judge impose the sentence.

Those murders took place on Dec. 7, 2007, when Davis fatally shot Dashrath 
Patel and Pravinkumar Patel at a BP gas station on Interstate 4. He was 
convicted of those crimes in October 2012.

In another ruling, the court upheld the death sentences for Davis for burning 2 
women to death on Dec. 13, 2007. The jury in that case unanimously recommended 
that he be put to death.

That was the day Davis robbed an insurance office in Lake Wales and set 2 
employees, Yvonne Bustamante and her pregnant sister-in-law Juanita "Jane" 
Luciano, on fire.

They both died. Davis was found guilty in 2011. A jury unanimously recommended 
the death sentence for the murders of both women. Luciano's newborn son, 
Michael Bustamante Jr., was delivered but eventually died. For that, the jury 
voted 8-4 for the death penalty, but the trial judge reduced it to a life 
sentence.

"The unanimous recommendations here are precisely what we determined in Hurst 
to be constitutionally necessary to impose a sentence of death," the court's 
opinion read. "Accordingly, Davis is not entitled to a new penalty phase."

Davis is among the 43 death row inmates who filed direct appeals with the 
state's highest court after the U.S. Supreme Court found that the way Florida 
condemned people to die was unconstitutional because it allowed a judge to 
overrule a jury verdict and impose a death sentence. State legislators 
responded in March, rewriting the law to require at least a 10-2 death vote.

But last month, the state Supreme Court went a step further by requiring that 
juries must be unanimous in imposing the death penalty.

(source: Tampa Bay Times)

*******************

Justices order hearing for death row inmate in 1976 murder


4 decades after a woman died of injuries suffered in a brutal beating, the 
Florida Supreme Court on Thursday ordered a hearing to determine whether one of 
her killers should be spared the death penalty.

Justices, in a 5-2 decision, said Death Row inmate William Thompson, 64, should 
receive a hearing to determine if he is intellectually disabled.

The ruling stems largely from a 2014 U.S. Supreme Court decision, in a case 
known as Hall v. State, that required changes in Florida's system of 
determining whether inmates have intellectual disabilities.

In 2002, the U.S. Supreme Court found that executing people who are 
intellectually disabled, or in the common terminology at the time, mentally 
retarded, violates the Eighth Amendment ban on cruel and unusual punishment.

The 2014 decision rejected Florida's practice of using an IQ score of 70 as a 
"bright-line" standard for whether inmates are intellectually disabled.

In Thursday's ruling, the Florida Supreme Court said Thompson had a range of IQ 
scores over his life, with several below 75, and that courts had improperly 
used the previous standard of 70 in his case.

"Because Thompson's eligibility or ineligibility for execution must be 
determined in accordance with the correct United States Supreme Court 
jurisprudence, this case is a prime example of preventing a manifest injustice 
if we did not apply Hall (v. State) to Thompson," said the majority opinion 
supported fully by Chief Justice Jorge Labarga and justices Barbara Pariente, 
Peggy Quince and James E.C. Perry.

Justice R. Fred Lewis concurred with the result but did not sign on to the 
majority opinion.

Justices Charles Canady and Ricky Polston dissented.

The ruling will send the case back to Miami-Dade circuit court for an 
evidentiary hearing about whether Thompson is intellectually disabled.

He and another man were convicted of fatally assaulting Sally Ivester in 1976 
in a motel room because she was not able to get as much money from her family 
as the men had hoped. Ivester died of internal bleeding and other injuries, the 
Supreme Court opinion said.

(source: news4jax.com)

*************

FSU Frat Guy Who Ate Man's Face Off Could Now Face The Death Penalty


The 19-year-old FSU frat brother who had to be pulled off a man's face he was 
eating while high on a drug could face the death penalty.

At the time, officers said Austin Harrouff displayed abnormal strength when 
four officers and a police dog wrestled him off John Stevens III on the 
victim's driveway in Jupiter, Florida.

Authorities think Harrouff was high on flakka when he attacked and killed 
Stevens and his wife, Michelle Mishcon, on August 15.

He was originally arrested and charged with 2nd-degree murder.

But the Sun Sentinel reports Assistant State Attorney Nita Denton said the 
charge has been upgraded to 1st-degree murder.

It is reported Stevens' son is pushing for the death penalty.

On the night of the attack, Harrouff left a family meal and walked 3 miles 
where he stumbled upon the couple outside their home.

He leapt on them in their garage. A neighbor who tried to intervene was also 
injured.

Florida State University frat student Austin Harrouff "was on flakka" when he 
ate a man's face in the double homicide of John Stevens and Michelle Mishcon.

It's a man-made drug created primarily from a chemical called alpha-PVP.

This is a synthetic version of cathinone, the stimulant made from the plants 
Somalians eat in the movie "Captain Phillips."

The sensation and long-term effects it causes are said to be comparable to 
high-grade crystal meth or cocaine, with the addition of kidney failure.

The crystal pebbles that make up flakka can be snorted, injected, smoked or 
ingested.

Some of the 1st reported cases of flakka use emerged more than a year ago in 
Florida.

(source: elitedaily.com)






ALABAMA----impending execution

Federal judge may allow Alabama to execute inmate using new 1-drug method


A federal judge may allow Alabama to change its lethal injection method for the 
Dec. 8 execution of Alabama death row inmate Ronald Bert Smith.

U.S. District Court Judge Keith Watkins, in an order issued Wednesday, tells 
Smith's attorneys to submit in writing, on or before noon on Nov. 16 why he 
should not order Alabama to execute Smith using "a large initial dose of 
midazolam, followed by continuous infusion" of that drug.

Smith is among a group of Alabama death row inmates who have been challenging 
Alabama's 3-drug lethal injection protocol for executions. Alabama, along with 
other states, have developed different drug combinations after drug 
manufacturers started refusing to supply execution drugs the states had been 
using.

When death row inmates file lawsuits challenging a state's method of execution 
as cruel and unusual punishment, they must offer suggestions to the court of 
alternate methods of execution. Among the suggestions by Alabama inmates have 
been firing squad and hanging - both options Watkins dismissed because they are 
not set out in Alabama law. One lawmaker, however, last week said he will 
introduce a bill to make firing squads an option.

Efforts to reach Smith's attorney were unsuccessful prior to publication of 
this story. A spokeswoman for the Alabama Attorney General's office said that 
office would not comment.

Earlier in the litigation Alabama offered death row inmate Christopher Brooks 
the opportunity to be executed by a 1 large dose of midazolam, Watkins noted in 
his order. That drug - a sedative - is the 1st drug administered in the state's 
3-drug protocol.

Brooks refused and on Jan. 21 became the 1st inmate executed in more than 2 
years, using the state's new 3-drug lethal injection method.

After his execution, a witness in the viewing room testified one of Brooks' 
eyes opened after the consciousness assessment and remained open until the 
curtain was closed in the viewing room, according to the judge's order.

"The eye episode has become a central component of the Eighth Amendment (cruel 
and unusual punishment) claim in the current complaint of Mr. Smith, in the 
motion to dismiss, and in the response to it - particularly in Mr. Smith's 
objection to midazolam as a sedative in the 3-drug protocol," the judge states. 
"Mr. Smith argues that midazolam will inadequately anesthetize him, thereby 
causing severe pain upon the infusion of the 2nd and 3rd drugs in the protocol, 
rocuronium bromide and potassium chloride, respectively."

"It is undisputed that potassium chloride causes severe pain to a conscious 
person," Watkins states.

Attorneys for 8 Alabama death row inmates have discussed other methods of 
executions in recent court filings in their lawsuits that claim the state's 
current lethal injection method is painful and would violate the constitutional 
protection against cruel and unusual punishment. The Alabama Attorney General's 
Office in July sought to have all seven lawsuits dismissed.

While they feared midazolam wouldn't sedate them enough for the next 2 drugs, 
the inmates argued that 1 large dose of midazolam would be enough to kill them 
anyway.

Watkins writes that he ultimately dismissed the notion of a one-drug protocol 
in Brooks' case as "fraught with peril" arising out of a number of unanswered 
concerns.

Use of a single dose of midazolam to execute an inmate has apparently never 
been tried elsewhere. But legal arguments in the inmates' lawsuits have cited 
expert testimony that a single large and continuous dose of midazolam could be 
used to cause death.

Pittman said the Tommy Arthur case prompted him to introduce the bill.

But it's time to reconsider it, according to Watkins. "Changes in the posture 
of the case dictate that the court explore the midazolam option pled and urged 
by Mr. Smith and presently offered by defendants (Alabama Attorney General's 
Office)," Watkins states.

Watkins writes that: Alabama's "offer" for one mega dose of midazolam is not 
contingent on Smith executing a consent as was the case with Brooks; "a year of 
reflection on the issue brings it to the forefront"; and that a 1-drug 
midazolam protocol exists.

"Because Mr. Smith has pled it and offered the option as viable, readily 
implemented and available, defendants (Alabama) have accepted the offer," 
Watkins writes in his order.

All the parties agree that midazolam is available, it is feasible, it is 
readily implementable, and it is not risky with regard to unnecessary pain and 
suffering, Watkins writes in his order.

Watkins also ordered the Alabama Attorney General's Office on or before Monday 
to submit to him its plan for administering 1 large dose of midazolam, along 
with a copy of its 3-drug protocol for comparison.

Smith, who has been on death row since Oct. 6, 1995, was convicted in Madison 
County in the November 1994 slaying of Circle C convenience store clerk Casey 
Wilson during a robbery. A judge overrode a jury recommendation for life 
without parole and imposed the death penalty.

(source: al.com)



CALIFORNIA:

Death penalty foes move to block measure in court


Death penalty opponents are asking the California Supreme Court to block a 
ballot measure that would speed up executions in California.

Former state Attorney General John Van de Kamp says in a petition filed 
Wednesday that the death penalty reform measure would create confusion and 
upheaval in the courts.

Proposition 66 would reform the death penalty by assigning more lawyers to 
appeals and having trial court judges hear some appeals.

The measure was leading with about 51 % of support in ballots counted, but was 
too close to call. A dueling measure to repeal the death penalty failed.

The court petition says the measure will cost more money and limit the ability 
to mount a proper appeal.

Supporters of a measure to speed up the death penalty say a lawsuit against the 
effort is a slap in the face to voters.

The Yes on 66 Campaign said Wednesday that the proposition came about because 
voters are sick of lawyers constantly undermining the system with lawsuits.

Opponents of the measure asked the California Supreme Court to block it 
Wednesday.

(source: KPCC news)






OREGON:

Man sentenced to death for fatally stabbing inmate at Marion County jail


A Marion County jury sentenced a 45-year-old member of the Krude Rude Brood 
gang to death for fatally stabbing a fellow inmate while incarcerated in 2013.

It took the jury less than an hour to reach their verdict after hearing the 
prosecution's and defense's closing arguments on Thursday

The victim's family silently teared up as Judge Tracy Prall read the sentence 
aloud for David Ray Bartol.

In October, Bartol was convicted of aggravated murder for stabbing Gavin 
Siscel, 33, to death with a homemade knife in the Marion County jail's day 
room. Siscel was serving a 30-day sentence for contempt of court at the time of 
the attack.

Bartol had been incarcerated since March 2013 while awaiting trial for a 
robbery. The day before he stabbed Siscel, Bartol was arraigned on attempted 
murder charges in connection with a January home invasion shooting in South 
Salem.

During closing arguments, Marion County Deputy District Attorney Matthew Kemmy 
argued that Bartol deliberately and intentionally murdered Siscel.

Kemmy said the attack was random and unprovoked. He was mad at his former 
co-conspirator for talking to investigators, Kemmy said, but the man was in 
protective custody, so Bartol lashed out at a random inmate. Siscel was in jail 
for contempt and had struggled with mental illness since he was young.

Bartol braided threads from his uniform together and used it to saw through a 
plastic tote bin and form a shank. He sharpened the shank by rubbing it against 
concrete and dipping it into his toilet bowl. Kemmy said he slept with it 
hidden in his mattress.

On the morning of the stabbing, he wrote, "It's a good day for a (expletive) to 
die."

According to reports, Bartol walked up to Siscel, who was watching TV in the 
jail's day room, and hit him in the jaw with a stolen flashlight.

After stabbing Siscel in the eye, he repeatedly pounded the shank into his eye 
socket with a shower sandal until it reached his brain.

Siscel was taken to the hospital, where he died 5 days later.

Afterword, Bartol wrote that the death was a "free kill for my trophy room."

Kemmy said Bartol's attack on Siscel was just one example of his violent and 
dangerous behavior. The prosecution brought in 160 witnesses and 330 exhibits 
to illustrate his history of threats, assaults and intimidation.

"David Bartol is a frightening, dangerous person.... that will not change," he 
said.

In August, a Multnomah County jury found Bartol guilty of 24 counts - including 
aggravated attempted murder and kidnapping - for torturing 2 fellow Krude Rude 
Brood gang members. The group, a White supremacist gang, became notorious in 
Portland for dealing methamphetamine and torturing its enemies. Bartol was 
accused of sanding gang members' tattoos off, injecting them with heroin and 
shooting them. He was sentenced to 55 years in prison.

Bartol's arrest record spans almost 3 decades and includes convictions for 
attempted murder, robbery and assault. Previous court records listed Bartol as 
Salem resident.

Kemmy played a recording of Bartol talking about one of the gang-related 
attacks on the phone.

"I made him sing me happy birthday after I shot him," Bartol said and laughed.

Bartol was already set to live out his life incarcerated for the attempted 
murders. Kemmy said sentencing him to life in prison for Siscel's murder would 
be the equivalent of not punishing him at all.

"Gavin Siscel's life is worth more than that," he said.

During the sentencing closing arguments, Bartol's defense attorneys argued that 
he should be spared the death penalty because he was intellectually disabled 
and has a fetal alcohol spectrum disorder. The untreated symptoms of the 
disorder caused him to act violently and irrationally, said defense attorney 
David Kuhns.

"Each of you will make a life or death decision," Kuhns told the jury.

He said Bartol's mother drank every day and did drugs while she was pregnant 
with him, causing him to develop partial fetal alcohol syndrome, a disorder 
that can cause sufferers to have limited mental capacities, no concept of risk, 
be physically brutal, have difficulty empathizing and be prone to bragging.

Bartol's disorder went un-diagnosed for most of his life, Kuhns said. He lagged 
behind at school, began using drugs and ran into trouble with the law as a 
teenager. From ages 14 to 45, Bartol received more than 20 different mental 
health diagnosis ranging from obsessive compulsive disorder to sociopathy.

Kuhns likened life to running a marathon and the disorder to having a 
refrigerator strapped to someone's back during the race.

"It explains why he behaved the way he did," he added.

Since receiving treatment and medication for fetal alcohol syndrome, his 
infractions have gone down. Kuhns asked the jury to consider mercy a mitigating 
factor and sentence Bartol to life in prison.

"It matters because David Bartol is a broken and damaged person, not an evil 
person," he said. "I'm asking that you not give up on (him). He's not a lost 
cause."

Kemmy countered that Bartol would not change, and he needed to be held 
accountable for the "nauseatingly violent" attack.

"This is a serious thing we're asking you to do," he told the jury.

The trial was rescheduled to run until Nov. 18, but the jury needed less than 
an hour to deliberate. After unanimously sentencing Bartol to death, the jurors 
were relieved of their duties.

"These are difficult cases," Marion County District Attorney Walt Beglau said 
in a statement. "We respect the work of the jury, the court and the parties."

Bartol's defense attorney Steven Gorham expressed his dismay after the verdict.

"It's unfortunate the jury came out with this decision," he said.

The prolonged trial wasted more than $1 million, he added.

"That money should've been spent on something more positive that trying to kill 
David Bartol," Gorham said.

After an official sentencing date on Nov. 15, Bartol will join 34 others on 
Oregon's death row. No inmate has been executed since 1997. In 2011, then-Gov. 
John Kitzhaber placed a moratorium on all executions.

Gorham said he expected to appeal the death sentence.


USA:

Capital punishment ignored


There has been almost no meaningful political conversation this election about 
capital punishment. Why have American voters been content to allow another 
election season to pass by without addressing the broken death penalty system 
that continues in our country in 2016? This is especially puzzling in the view 
of the reduction in public support for the death penalty, which is at a 40-year 
low. In 1996, 78 % of Americans supported the death penalty. In 2015, only 56 % 
were in favor.

In 2016, mass incarceration, police violence toward communities of color and 
the failed war on drugs have entered the speeches of both the Republican and 
Democratic candidates. It is a human-rights violation, it is cruel and unusual 
punishment, it is an ineffective deterrent to crime, it is racist, it is 
classist, it is a judgment decided by humans, and therefore imperfect, and it 
is incredibly expensive, they would force the candidates to address what they 
will do to fix the system.

The fact that it continues to exist in this country, in 2016, matters. It is 
time for politicians and the public to give this costly punishment a hard look. 
Voters need to make that clear.

Jami Warner, Spokane

(source: Letter to the Editor, Spokesman-Review)

****************

Fell is denied death penalty exemption for disability


A judge has denied a motion that would have spared Donald Fell the death 
penalty when he is retried on murder charges early next year.

The defense motion argued that fetal alcohol spectrum disorder, which medical 
experts said Fell suffered from, should be added to the list of categorical 
exemptions to capital punishment.

The Supreme Court ruled in 2002, in the Atkins v. Virginia decision, that the 
execution of people with intellectual disability (then referred to as "mental 
retardation") violated the Eighth Amendment prohibition on cruel and unusual 
punishment. Fell's defense argued that fetal alcohol spectrum disorder was the 
functional equivalent of intellectual disability, even though Fell did not meet 
all the criteria as outlined in Atkins. A 2005 Supreme Court ruling also 
exempted juveniles under the age of 18 from capital punishment.

In the Fell case, the government disputed the notion that fetal alcohol 
spectrum disorder and intellectual disability could be equated. It also argued 
there are no agreed-upon diagnostic criteria for the disorder, as required by 
Atkins.

In his ruling Monday, U.S. District Judge Geoffrey Crawford wrote, "The court's 
sole concern here is whether FASD should be added to the list of categorical 
exemptions to capital punishment." Crawford has yet to rule on the defense 
team's motions regarding the constitutionality of the death penalty, the 
subject of 2 weeks of hearings in July.

Fell was charged in the killing of North Clarendon resident Teresca King in 
November 2000. He was later convicted of murder and sentenced to death, but the 
outcome was overturned due to juror misconduct. His retrial is scheduled to 
begin early next year.

According to John Blume, a professor at Cornell University and the director of 
the Cornell Death Penalty Project, very few defense teams have made the 
argument that fetal alcohol spectrum disorder - or other cognitive disorders - 
should fall under the umbrella of intellectual disability.

"It's not as if that argument is being made in hundreds of cases, but there 
have been a few," said Blume. In a 2014 paper Blume reviewed hundreds of cases 
that made use of the Atkins defense and said its overall success rate has been 
high, about 40 %.

Fell's defense drew on medical records, witness testimony and 
neuropsychological assessments to argue that his history of fetal alcohol 
disorder was a form of intellectual disability. According to testimony, Fell's 
small size and abnormal behavior as a child were consistent with exposure to 
alcohol as a fetus.

A neuropsychologist who assessed Fell said he'd experienced "significant 
prenatal exposure to alcohol" that potentially damaged his brain. After 
reviewing an MRI scan of Fell's brain, a 2nd doctor concluded there was "strong 
evidence of prenatal brain damage consistent with a diagnosis in the fetal 
alcohol spectrum."

The Atkins ruling established 3 broad criteria to define intellectual 
disability, including an IQ score no higher than 70 to 75. On 2 occasions Fell 
tested higher, with scores of 93, according to court documents.

However, Dr. Stephen Greenspan, who reviewed Fell's records for the defense, 
said the higher IQ scores should not rule out a diagnosis of intellectual 
disability. According to Greenspan, the IQ statistic itself is "insufficient to 
understand a person's level of cognitive functioning," and there is a growing 
consensus within the scientific community that fetal alcohol spectrum disorder 
is equivalent to intellectual disability even with the variation in IQ scores.

Crawford said there are too many variables when considering FASD as an 
exemption. He wrote that, along with other conditions, it "may provide grounds 
for death penalty mitigation" but is not recognized as a "categorical 
disqualifier."

"In short, not all people with FASD are intellectually disabled for Eighth 
Amendment purposes," Crawford wrote.

According to Blume, the Atkins ruling has not been misapplied by death row 
inmates, as Justice Antonin Scalia had warned in his dissent. Scalia predicted 
the intellectual disability claim would be used by defense teams to delay 
executions. "That in fact did not turn out to be true at all," Blume said. 
Blume's research found that only about 7 % of people on death row took up the 
Atkins ruling after it was issued in 2002.

However, Blume did say there is strong evidence that in many cases the 
prosecution has opted not to pursue the death penalty in light of Atkins.

The Supreme Court is to rule on another Atkins-related case this term. In Moore 
v. Texas the court will decide if outdated medical criteria and what 1 Texas 
judge has called the "Lennie standard" should be used to determine intellectual 
disability. The Lennie standard is based on Lennie Small, the fictional 
character in John Steinbeck's "Of Mice and Men."

(source: vtdigger.com)

***********************

The Death Penalty Thrived at the Ballot Box, but It's Still Declining


When voters took to the polls on Tuesday, there wasn't a major party 
presidential candidate on the ballot opposed to the death penalty. That's not 
unusual, and although Barack Obama has called it "deeply troubling," the 44th 
president also supports capital punishment, as has every commander in chief 
before him.

In spite of its declining public support, a majority of Americans still favor 
capital punishment as well. That majority was reflected in Nebraska, 
California, and Oklahoma on Tuesday, when voters passed pro-death penalty 
measures in all 3 states.

In Nebraska, voters brought back capital punishment just a year after state 
legislators repealed it. In California, a measure to repeal the death penalty 
failed, while another proposition that alleges to speed up the execution 
process passed. Meanwhile, Oklahoma became the 1st state to amend its 
constitution to protect the death penalty, declaring it legally impossible for 
state courts to consider it cruel and unusual punishment.

Considered together, the ballot measures seem to strike a heavy blow against 
the decline in use and popularity of the death penalty - but experts caution 
against reading too much into 1 election's outcome.

"Certainly it would have been significant if we had won all or any of these 
ballot initiatives, but these were a point along a broader continuum," said 
Diann Rust-Tierney, executive director of the National Coalition to Abolish the 
Death Penalty. "These ballot initiatives are not the whole story."

Though the movement to end the death penalty was dealt a setback on Tuesday, 
Rust-Tierney urges onlookers to consider the path of another progressive 
movement: the ultimately successful fight to legalize same-sex marriage. 
Progress was made state by state, starting with a 2003 court ruling in 
Massachusetts that legalized same-sex marriage. Yet that victory was followed 
by a rash of policy obstacles in other states, as state constitutions were 
reactively amended to define marriage as between a man and a woman. After many 
gains and setbacks, 12 years later, the Supreme Court issued a ruling 
legalizing same-sex marriage nationwide. What mattered, Rust-Tierney said, is 
that the movement "kept moving forward."

In California, where voters not only rejected capital punishment's abolition 
but voted to speed up the process, Elisabeth Semel believes that what appears 
at first glance to be support may actually be indicative of confusion. Semel is 
the director of the Death Penalty Clinic at the University of California, 
Berkeley, School of Law. Proposition 62, which would have eliminated the death 
penalty, was supported by 53.9 % of California voters. Proposition 66, which 
imposes time limits on the death penalty appeal litigation process, won 
narrowly with support from 50.9 % of voters. Semel, who opposed Prop. 66, told 
TakePart that the law imposes "absolute disregard for due process." But she 
thinks its success reflects the cumbersome nature of the ballot initiative 
rather than a surge of death penalty support.

"As I talked to [voters] who were not lawyers, I found they generally 
understood Prop. 62 but were absolutely flummoxed by 66," she said. "Some of 
them thought, 'Well, if we can't get rid of it, perhaps we can remedy it,' 
without understanding the particulars of the initiative."

Though Semel acknowledged that clearly Californians are "not universally in 
support of repeal," she anticipates that the "chaos" in the courts that will 
result from Prop. 66 will surprise some voters who supported it without 
understanding the complexity of the law. "If you look at other things 
Californians support in terms of transparency, this is a provision that will 
accomplish the opposite," she said. "I don't think it's necessarily of a fair 
measure of where people stand."

In spite of the losses at the ballot box on Tuesday, Rust-Tierney expects the 
downward trends in capital sentencing to continue. As a report published in 
October found, fewer than 1 % of counties where capital punishment is legal 
still frequently impose death sentences. While nearly 1/2 of Americans still 
support the death penalty, that support is the lowest it has been in more than 
4 decades, according to Pew Research Center - a trend that isn't likely to 
reverse overnight.

"1 step forward, 2 steps back is not the end of the race," said Rust-Tierney. 
"Now is the time to redouble our efforts."

(source: Yahoo News)

***************

How Donald Trump Could Revitalize The Death Penalty----Trump could have a 
serious impact on the death penalty if he wanted to. Here's how.


Over the past several decades, President-elect Donald Trump has proved 
malleable on a wide array of policy - from Iraq and abortion, to marriage 
equality and immigration.

But he has been steadfast in his support for the death penalty.

Back in 1989, Trump paid for a full-page ad calling for the reinstatement of 
New York's death penalty to be used on 5 young black men after a grisly and 
violent rape in Central Park. Even after the 5 men were exonerated and another 
man confessed to the crime, Trump expressed skepticism that the men were 
actually innocent, as recently as this fall. More broadly, Trump continued to 
advocate for the death penalty in the time since 1989.

Now that Trump will become president, he will have a chance to revitalize the 
death penalty. Here's how he could do it.

The Supreme Court

Trump's most obvious effect on the death penalty will be through the US Supreme 
Court. The prospect of the court ruling the death penalty unconstitutional in 
the near future was already a longshot. Now, abolition would dependent on 
support from all 4 more liberal justices and Justice Anthony Kennedy - with no 
likelihood of getting a supportive 6th possible vote over the next 4 years.

In practice, the high court's actual interaction with the death penalty is much 
more mundane than a hypothetical sweeping ruling on its constitutionality. The 
court deals with questions about how the death penalty is carried out: from 
decisions about who is even eligible for the death penalty to issues with trial 
procedure and sentencing rules to challenges to the methods of execution.

These are the questions that, absent outright abolition, have a massive effect 
on how the death penalty works in practice. Another conservative vote (or more) 
could have a lasting effect. This is particularly true when it comes to 
challenges relating to sentencing law. Justice Antonin Scalia had been a leader 
on the court in advancing a resurgent jury trial right, which - in one of his 
last votes - was solidly, and broadly, applied to provide the protection of a 
jury vote not just for guilt but also as to the sentencing part of a death 
penalty trial. Whether that area of law continues to advance - as criminal 
defense lawyers hope - could change dramatically depending on Trump's nominee 
or nominees to the court.

Reinvigorating The Federal Death Penalty

A Trump administration - from Trump and his attorney general on down - likely 
will be more supportive of the death penalty across the board.

The federal death penalty exists, but is extremely rare currently. There are 
only 64 people on federal death row, and there's hasn't been a serious prospect 
of them being executed in years. There have only been 3 federal executions in 
the modern era.

Obama has called the death penalty "deeply troubling" and his former Attorney 
General, Eric Holder, was an outspoken critic of it. His current attorney 
general, Loretta Lynch, still has not announced findings of a review of the 
death penalty that was begun during Holder's tenure. Needless to say, the 
outcome of the review - even if it comes before the end of the Obama 
administration and is critical of the death penalty - likely will not form the 
basis of a Trump administration's implementation of it.

These effects wouldn't only be seen in the higher echelons of the 
administration, either. Trump almost certainly will appoint U.S. attorneys more 
eager for the death penalty than those under Obama.

Across the country, this could have a broader effect as well. Currently, new 
death sentences are way down. The sentences that are given out now are sought 
by just a handful of prosecutors, and the cases are incredibly expensive. A 
Trump administration could be more eager to help provide assistance to state 
death penalty prosecutions - or to seek the death penalty more frequently when 
it is possible to do so under federal law.

Allow States To Get (Illegal) Execution Drugs

An important reason executions have been on decline is because there's been a 
difficulty in obtaining lethal injection drugs. For years, states have 
struggled to find a consistent supply of them after manufacturers began 
enacting stringent guidelines to keep their products away from lethal 
injections.

Trump's largest impact on executions in the United States could be getting 
involved in an ongoing, but little noticed, feud between death penalty states 
and the federal government over importing illegal execution drugs.

The states' reliable lethal injection drug for decades, sodium thiopental, has 
been impossible for states to get. The sole Food and Drug 
Administration-approved manufacturer stopped making the drug to keep it out of 
the hands of executioners.

States have turned to illegal suppliers of the drug. Last year, BuzzFeed News 
reported that Texas, Arizona, and Nebraska all purchased illegal sodium 
thiopental from a supplier in India. Nebraska's shipment never left India. The 
Texas and Arizona shipments were detained by the FDA once they entered the US.

2,000 vials of execution drugs have sat in a government warehouse for well over 
a year while the states and the FDA argue behind the scenes over whether the 
drugs can be released. The FDA argues that there is a court order preventing 
them from releasing the drugs.

The decision over what to do with these execution drugs involves the 
highest-ranking people at the FDA. Documents obtained by BuzzFeed News show the 
commissioner of the FDA asked to be briefed on the issue last year.

With a Trump-appointed FDA head, the decision could be different.

The FDA, under Obama, initially wanted no part of the issue. Years ago, the FDA 
allowed drugs to be imported by states wishing to carry out the death penalty, 
with the federal agency saying it wasn't its role to regulate execution drugs. 
But a federal appeals court panel ruled the FDA didn't have discretion to 
ignore a law that says unapproved drugs aren't allowed into the country - 
leaving in place a court order that mandates such continued enforcement.

If Texas and Arizona were to sue over such drug importation while Obama was 
president, they would not only have to argue that the drugs should be allowed 
to come in - they'd have to go much further. They'd also have to argue that the 
court order doesn't apply and that the FDA doesn't have discretion to bar the 
drug.

Under an FDA commissioner that's more sympathetic to the states' argument, 
however, their case could become significantly easier to make. If the FDA wants 
to allow the drugs in, states would just need to convince the court that the 
earlier injunction doesn't apply now and that the court should defer to the 
FDA's interpretation and expertise on what drugs should be allowed into the 
country.

Large drug manufacturers in the US and Europe take great lengths to keep their 
products away from executioners. That would not be true of small manufacturers 
and distributors in countries like India. The change could be huge - and could 
allow for a steady supply of execution drugs.

(source: Chris McDaniel is a death penalty reporter for BuzzFeed News and is 
based in New York----BuzzFeedNews)