[Deathpenalty] death penalty news----NEB., COLO., NEV., USA

[Rick Halperin]

July 6




NEBRASKA----new execution date//volunteer

Execution date set for Carey Dean Moore in August; victim's son doubts it will 
happen



The Nebraska Supreme Court has set an execution date of Aug. 14 for condemned 
prisoner Carey Dean Moore.

Moore, 60, who has been on death row for 38 years, was sentenced on 2 counts of 
1st-degree murder in Douglas County in the 1979 deaths of 2 Omaha cab drivers, 
Reuel Van Ness Jr. and Maynard Helgeland.

If he is put to death, it would be Nebraska's 1st time carrying out capital 
punishment in 21 years. It also would be the 1st time the state would use 
lethal injection.

The execution warrant, issued by Chief Justice Michael Heavican, isn't specific 
about the time, saying Department of Correctional Services Director Scott 
Frakes can execute Moore between the hours of 12:01 a.m. and 11:59 p.m.

Moore has been notified the lethal injection drugs to be used in his execution 
are diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride.

1 of those drugs, potassium chloride, is set to expire at the end of August. 
Because of that, Attorney General Doug Peterson had filed a motion in May 
asking the court to speed up its consideration of an execution warrant for 
Moore, and to set the execution date as early as July 10.

Both the spokeswoman for the Department of Corrections and a spokesman for Gov. 
Pete Ricketts said the state is prepared to carry out the order.

Steve Helgeland of Rapid City, South Dakota, Maynard Helgeland's son, said 
family members haven???t decided yet whether a representative would come to 
Lincoln to witness Moore's execution.

He said he has no interest whatsoever in seeing it himself.

"I will say this, I have little faith that Nebraska will get it done," 
Helgeland said in a phone call Thursday, about an hour after learning of the 
Aug. 14 execution date.

If it does, he said, they'll gather as a family and say prayers for their dad 
and for Moore.

Helgeland said he doesn't care what happens to Moore, whether he's executed or 
spends the rest of his life in prison.

"We just want him off the front of the newspaper," he said. "Whatever way that 
happens, we'll take it as it comes."

In an email to the Journal Star in late June, Moore reiterated that even though 
his attorney, Jeff Pickens at the Nebraska Commission on Public Advocacy, would 
like to file something on his behalf, "most certainly I do not."

In a filing in May signed by Moore, he said he met with 2 lawyers with the 
commission in March who told him of legal options he could pursue. Moore said 
he told them he didn't want representation, "nor did I want any legal action 
pursued on my behalf."

In the recent email, Moore said he would like the commission to file a motion 
for his brother Donald, to get him released from parole "which he has been on 
since forever it seems like."

"That would be perfect for me," Moore said.

Moore has said often that he wished he had not involved his younger brother, 
Donald, then 14, in the shooting of Van Ness in August 1979. Moore, who was 21 
at the time, had taken his brother with him to rob a cab driver.

Pickens said in an email to the Journal Star that the commission still 
represents Moore, but at this time he doesn't intend to file anything in 
response to the warrant. Moore is not a party to any other pending death 
penalty matters or appeals and Pickens said he doesn't know if resolution of 
those matters could affect his warrant.

"If Moore doesn't request recall of the warrant or a stay of execution, I don't 
know the circumstances by which either of those things could occur," he said.

In June, Lancaster County District Judge Jodi Nelson, in response to open 
records lawsuits filed by the Journal Star, Omaha World-Herald and ACLU, 
ordered the state to release records of communications with its lethal 
injection drug supplier, as well as several other documents related to 
Nebraska's efforts to carry out the death penalty.

But she found certain other documents are exempt from disclosure under a state 
law protecting the identities of members of the state's execution team. Those 
documents include purchase orders and chemical analysis reports.

The department appealed the decision and the records ordered to be released 
remain undisclosed.

Nebraska ACLU legal director Amy Miller said in a written statement that the 
organization was "deeply disappointed" that the court would issue a death 
warrant when multiple cases relevant to the death penalty are currently pending 
in the courts.

"That an execution would be carried out when the governor, attorney general and 
Department of Corrections have not honored open records laws and kept public 
records about the procedure secret from Nebraskans is incredibly troubling," 
Miller said.

ACLU of Nebraska understands Moore seemingly wishes to file no further actions 
in the court on his behalf, she said.

"Nevertheless, we fully intend to litigate the troubling legal and policy 
issues relating to our arbitrary and broken death penalty process," Miller 
said.

(source: Lincoln Journal Star)

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

Nebraska sets execution date for longest-serving inmate



The Nebraska Supreme Court set an execution date Thursday for the state's 
longest-serving inmate, a crucial step needed to carry out Nebraska's 1st 
execution in 21 years.

The court issued a death warrant for Carey Dean Moore, who has spent nearly 4 
decades on death row for the 1979 shootings deaths of 2 Omaha cab drivers. 
Justices set the execution date for Aug. 14 at midnight, a few weeks before the 
state's supply of a key lethal injection drug is set to expire.

"The Department of Correctional Services is prepared to carry out the court's 
order," Suzanne Gage, a spokeswoman for Nebraska Attorney General Doug 
Peterson, said in a statement.

After years of delays, the 60-year-old Moore has stopped fighting state 
officials' efforts to execute him, and he recently accused them of being too 
"lazy or incompetent" to carry out the sentence. He filed a motion in May to 
dismiss his court-appointed lawyer, but the state Supreme Court denied his 
request. Moore also ordered his attorney to stop fighting the state's attempts 
to execute him.

"At this point, I do not intend to file anything" to try to stop the execution, 
said Moore's lawyer, Jeff Pickens.

Nebraska has struggled for decades to carry out executions, despite its deep 
conservative leanings. The state's last execution took place in 1997, using the 
electric chair.

The state has since adopted a lethal injection protocol, but has struggled to 
carry out executions because of legal challenges and difficulties in obtaining 
the necessary drugs. Gov. Pete Ricketts' administration faced criticism in 2015 
after the state corrections department sent $54,000 to an India-based broker 
for lethal injection drugs it never received.

? State lawmakers abolished capital punishment in 2015, overriding Ricketts' 
veto, but voters reinstated the following year through a petition drive 
partially financed by the Republican governor.

Nebraska has 11 men on death row.

In court filings, corrections Director Scott Frakes said the state's supply of 
potassium chloride - a key drug in Nebraska's protocol - will expire on Aug. 
31. State officials haven't disclosed where they obtained the drug.

Executions for Moore have been scheduled before, but were thwarted by legal 
issues. An execution date was set in 2007, but was called off after the 
Nebraska Supreme Court declared the electric chair unconstitutional. The court 
scheduled him again to die 2011, but that ruling was halted amid questions over 
the legality of the state's purchase of lethal injection drugs.

State officials are trying to forge ahead with an execution despite a judge's 
order last month to release public records that would identify the supplier of 
its lethal injection drugs. Nebraska officials have appealed the ruling in 
lawsuits filed by the state's largest newspapers and a civil liberties group.

"We are deeply disappointed that the court would issue a death warrant when 
multiple cases relevant to the death penalty are currently pending in the 
courts," said Amy Miller, legal director for the American Civil Liberties Union 
of Nebraska.

Miller said it was "incredibly troubling" that the court would allow an 
execution to go forward even though the governor, attorney general and 
Department of Correctional Services have not honored Nebraska's open records 
laws.

(soruce: Associated Press)

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

Nebraska sets execution date for longest-serving inmate



The state of Nebraska hasn't executed someone in more than 2 decades, but is 
prepared to execute Carey Dean Moore in nearly a month.

Justices set an Aug. 14 execution date Thursday.

Moore was sentenced to death for the 1979 murders of 2 Omaha cab drivers. At 
age 60, he has been on death row longer than anyone else in Nebraska.

The drugs required to complete the execution will expire at the end of August, 
according to Attorney General Doug Peterson.

Moore said he no longer wants legal representation and doesn't want to 
challenge his execution.

"I hereby voluntarily waive any constitutional or statutory right I have to 
legal representation," Moore said in a motion.

ACLU of Nebraska legal director Amy Miller issued the following statement 
shortly after the announcement:

"We are deeply disappointed that the court would issue a death warrant when 
multiple cases relevant to the death penalty are currently pending in the 
courts. That an execution would be carried out when the governor, attorney 
general and Department of Corrections have not honored open records laws and 
kept public records about the procedure secret from Nebraskans is incredibly 
troubling.

"We understand that Carey Dean Moore seemingly wishes to file no further 
actions in the court on his behalf. Nevertheless, we fully intend to litigate 
the troubling legal and policy issues relating to our arbitrary and broken 
death penalty process."

(source: KETV news)








COLORADO:

Glen Galloway formally sentenced, receives life without parole



In the 1st death penalty trial in El Paso County in a decade, jurors sentenced 
convicted double murderer Glen Galloway to life in prison without parole.

The sentence was handed down earlier this week, but today's was a formal 
sentencing.

Today's sentencing was the third phase of the trial, following earlier 
decisions that Galloway was guilty of 1st and 2nd degree murder for the 
killings of Marcus Anderson and Galloway's ex-girlfriend Janice Nam in May 
2016.

Galloway's defense team had admitted Galloway shot and killed both Anderson and 
Nam; however, they said the killings were not intentional and Galloway acted in 
2 split-second decisions to kill both of them.

Prosecutors argued Galloway acted deliberately to kill Janice Nam after he 
killed Anderson. Galloway was previously convicted of stalking Nam.

That's why prosecutors put the death penalty on the table, which was rejected 
during sentencing Tuesday.

El Paso County jurors decided against the death penalty this past Tuesday, 
sentencing the 46-year-old to a life sentence.

The last criminal suspect to be charged with capital murder in El Paso County 
was Marco Lee. Rather than go through a death penalty trial, Lee was sentenced 
to life in prison through a plea agreement in which he admitted to shooting and 
killing Colorado Springs Police Officer Ken Jordan. Lee was sentenced in 
December 2008.

(source: Colorado Springs Gazette)








NEVADA----impending execution//volunteer

Death penalty barbaric, outdated: Durante----Midazolam is supposed to prevent 
condemned prisoners from suffering while they die. But opponents say several 
problematic executions involving the drug are evidence that it doesn't work 
consistently.

I am convinced that the death penalty is barbaric, outdated and demeaning to 
the citizens of Nevada.

I had sincere hopes that we had moved past using it as an element of our 
state's criminal justice system, even though our state Legislature has failed 
to remove it from the statutes. My hope was founded in the fact that we haven't 
resorted to execution for over 12 years - and the state would very likely not 
be using it now if Scott Dozier had not waived his right to further appeal.

An appeal would result in a proper review of the method the Department of 
Corrections intends to use to carry out the order of execution, which is a drug 
mixture that has not been tested nor used in executions anywhere in the 
country. Experts have raised serious concern about whether this drug mixture 
will mask a dying process that may be nothing short of torture by suffocation. 
Torture is illegal, according to the laws of our nation, and the prohibition 
against cruel and unusual punishment remains a tenet of the Nevada Constitution 
as well.

The impropriety of this execution is further complicated by the secrecy that 
seems to be shrouding it. Keeping the facts out of the minds of the people is a 
means of manipulation.

Decades ago Nevada set executions for midnight, then moved them to 9 p.m., 
still cloaking the act in darkness. This execution is scheduled for 8 p.m. but 
it has moved to Ely, a place inaccessible to most Nevadans due to its 
remoteness, away from the eyes of the public.

One of the proposed drugs is a paralytic which will create a sort of "chemical 
curtain" that will hide any consciousness, pain or suffering that may be 
occurring during the execution. Out of sight, out of mind. Yet that does not 
change the reality of what is happening in our names.

The Nevada Supreme Court, entrusted with reviewing the constitutionality of 
actions by the state, has refused to look at the legality of this drug mixture. 
Governor Sandoval has not yet taken any action to stop this travesty, even 
though the execution is a function of the executive branch. Due to the lack of 
ownership in these 2 branches, it appears that procedure will trump substance 
on this life-and-death issue in Nevada, literally.

I believe the death penalty is morally reprehensible and an affront to human 
life. Not only does it lower us to taking a life when there are other permanent 
means of protecting society, but it also is an abuse of power in the worst way. 
Further, the lack of transparency in the plan for the execution of Scott Dozier 
raises ethical and legal questions that remain totally unanswered.

(source: Fr. Chuck Durante is rector of St. Thomas Aquinas Cathedral in Reno, 
vicar general of the Roman Catholic Diocese of Reno and chair of its Life, 
Peace and Justice Commission----Reno Gazette Journal)

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

Nevada execution sedative blamed for troubles elsewhere, including Alabama



A sedative that Nevada prison officials plan to use next week for the 1st 
lethal injection in the state since 2006 has been blamed for problems during 
executions in recent years in several other states.

The U.S. Supreme Court ruled in 2015 that the drug, midazolam, can be used in 
lethal injections. But the American Civil Liberties Union of Nevada pointed 
Thursday to Arizona's decision to stop using it following an execution that 
took nearly 2 hours to kill Joseph Rudolph Wood a year earlier.

"Midazolam has a terrible track record," ACLU spokesman Wesley Juhl said, 
referring to a drug that observers have seen leaving inmates apparently 
struggling to breathe before they are pronounced dead. The ACLU characterizes 
the plan for Scott Raymond Dozier's lethal injection next week less humane than 
putting down a pet.

"Midazolam has been implicated in seriously botched and observably troublesome 
executions in at least five states," said Robert Dunham, executive director of 
the nonprofit Death Penalty Information Center in Washington, D.C. He named 
Alabama, Arkansas, Arizona, Florida and Ohio.

"While Nevada may hope that it works, the frequency with which it fails could 
mean Scott Dozier is conscious and aware when the fentanyl starts to kill him 
and the paralytic is administered," Dunham said. "He could be aware of being 
suffocated to death."

Nevada Department of Corrections spokeswoman Brooke Santina did not immediately 
respond to questions about the execution plan made public Tuesday for Dozier's 
lethal injection next Wednesday at Ely State Prison, 250 miles (400 kilometers) 
north of Las Vegas.

The protocol calls for midazolam injections to be followed by high doses of two 
other drugs never before used in executions -- fentanyl, the powerful synthetic 
opioid blamed for overdoses nationwide, then the muscle paralyzing drug 
cisatracurium.

Use of the third drug was rejected by a state court judge last November, 
postponing Dozier's execution amid concerns that rendering him immobile could 
"mask" or prevent witnesses from seeing signs of struggle or pain.

Dozier, 47, a twice-convicted murderer who has been on death row since 2007, 
has waived appeals of his case and said repeatedly that he wants to die. He 
also said he doesn't really care if he suffers. Critics call his request a bid 
for state-assisted suicide.

The Nevada Supreme Court in May overturned the postponement on procedural 
grounds but did not rule on the constitutionality of the lethal injection 
method. The execution plan was revised last month to substitute midazolam for 
expired prison stocks of diazepam, a sedative commonly known as Valium that the 
state previously slated for 1st-ever use as a lethal injection drug.

Nevada, like many of the 31 states with capital punishment, has had difficulty 
obtaining execution drugs after manufacturers began refusing to allow their 
products to be used in lethal injections. The state now plans to join several 
others using midazolam as an alternative.

Juhl, of the ACLU, cited the July 2014 execution in Arizona in which an 
Associated Press reporter watched Wood snort loudly while his belly inflated 
and deflated after he had been administered midazolam and the potent painkiller 
hydromorphone.

Just 6 months before, Ohio was the first state to use midazolam in the same 
2-drug combination with hydromorphone. In that case, an AP reporter watched 
inmate Dennis McGuire gasp and snort after apparently becoming unconscious, 
with his stomach rising and falling and his mouth opening and shutting for 16 
minutes of the 26 minutes before he was pronounced dead.

Juhl said the ACLU believes the paralytic was included in the Dozier execution 
regimen in Nevada to prevent witnesses from seeing if Dozier suffers a 
"torturous death."

The organization is asking a judge in Carson City to force prison officials to 
disclose records including where and when the lethal injection drugs were 
obtained.

The court filing did not seek to delay the execution, but ACLU lawyer Amy Rose 
said the public deserves to know how the state plans to put a person to death.

(source: al.com)








USA:

Fell seeks to avoid death penalty based on age



Lawyers representing Donald Fell, who was charged in the 2000 homicide of a 
North Clarendon woman, are asking a federal judge to rule out the death penalty 
because Fell was 20 years old at the time of the alleged murder.

A 2nd trial is pending for Fell, 38, for the carjacking and kidnapping of 
53-year-old Terry King.

Fell is accused of kidnapping King from the Rutland Shopping Plaza. Police said 
Fell and his friend, Robert Lee, took King to New York where she was bludgeoned 
to death.

The federal government is prosecuting the case. Vermont does not have the death 
penalty but prosecutors have notified the court of their intention to seek the 
death penalty.

Fell was convicted of the crimes with which he's now charged in 2005 and he was 
sentenced to the death penalty in 2006. However, Fell's attorneys found 
evidence of juror misconduct and Fell's conviction was overturned in 2014.

The motion by Fell's attorneys, filed on Tuesday, referred to a 2005 U.S. 
Supreme Court decision from 2005 that found capital punishment is 
unconstitutional if the person convicted committed the crime before he or she 
was 18.

The motion, filed by San Francisco attorney Michael Burt, a member of Fell's 
defense team, said the question of whether Fell was too young at the time he 
allegedly killed King had not been heard.

"Mr. Fell has had no opportunity to show that Roper's age-18 cutoff does not 
account for the current medical and scientific consensus that brain development 
is not completed by age 18, and that Mr. Fell's particular development at age 
20 is insufficient to justify capital punishment. Simply put, his evidence will 
show that at the time of the offenses, Mr. Fell did not function as an adult 
with sufficient moral culpability for capital punishment," the motion said.

Dr. James Garbarino also filed a brief discussing his findings working with 
young people dealing with severe violence. He said doctors who had previously 
examined Fell found psychological problems but the science of brain development 
was not advanced enough at the time to recognize Fell's problem was 
"developmental brain immaturity" from developmental delays.

"In the case of Donald Fell, his social history indicates he is just such an 
individual - growing up with much adversity, including psychological adversity 
such as experiences of parental rejection, and physical maltreatment, including 
physical traumas which may have resulted in insults to his brain," Garbarino 
wrote.

Burt's motion also makes specific objections in Fell's case because of a 
"traumatic childhood history of physical and sexual abuse, deprivation, 
instability and adolescent self-medication with alcohol and drugs."

"That Mr. Fell suffered such a deprived childhood is beyond dispute. The jury 
in his first trial found unanimously that 'Donald Fell was sexually and 
physically abused as a child,' that 'Donald Fell's parents were violent 
alcoholics who abandoned him as a child,' that 'As a child and teenager, Donald 
Fell was treated and institutionalized several times for mental health 
conditions' and that 'Donald Fell began regularly abusing alcohol and drugs as 
a child, and until the time of his arrest.'" the motion said.

The 2nd half of the motion argued that society opposed the execution of young 
criminals.

"Executing individuals barely old enough to vote or drink, unable to rent a 
car, unable to serve in Congress, and still in the throes of cognitive 
development - based upon now-disregarded views of culpability - undermines the 
Supreme Court's commitment to dignity, and the possibility of rehabilitation 
and redemption," the motion said.

Fell, through his attorneys, requested a hearing on the issue, followed by an 
order precluding the government from seeking the death penalty.

Prosecutors have not yet responded to the 550-plus page motion. Many of the 
exhibits in the motion were papers on the adolescent brain or court rulings on 
defendants who committed crimes while young, although only Kentucky was cited 
as banning the death penalty for someone younger than 21 rather than someone 
younger than 18.

Another motion, more than 1,100 pages long, was filed Tuesday seeking to stop 
prosecutors from having a mental health professional testify during the 
sentencing if Fell is convicted.

(source: Rutland Herald)

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

The Court May Become More Conservative, But Justice Breyer Still Is Pressing 
For It To End The Death Penalty----While the nation focuses on whether the 
Supreme Court will take a conservative turn following Justice Anthony Kennedy's 
retirement, Breyer is maintaining his effort to scale back or end the death 
penalty.



Justice Stephen Breyer hasn't given up on working to convince his colleagues - 
or America - that the time has come to reconsider the constitutionality of the 
death penalty.

"In my view," Breyer wrote last week in disagreeing with the Supreme Court's 
decision not to hear the appeals of 2 inmates on Mississippi's death row, "many 
of the capital cases that come before this Court ... involve, like the cases of 
Richard Jordan and Timothy Evans, special problems of cruelty or 
arbitrariness." As such, he wrote that he "remain[s] of the view" that the 
court should take a case to "consider whether the death penalty as currently 
administered violates the Constitution's Eighth Amendment," which bars cruel 
and unusual punishments.

Breyer made the statement even as the court and country were taking in the news 
that Justice Anthony Kennedy, the key vote over the past two decades in cases 
seeking to curb uses of the death penalty, would be retiring at the end of 
July. Kennedy sided with the more liberal justices in several key cases 
limiting who is eligible for the death penalty, but regularly joined his more 
conservative colleagues in rejecting challenges to the method of execution a 
state chose to use.

While most liberals across the country were writing out their concerns about 
how the court's close decisions that went to the left could be reversed under a 
more conservative court, Breyer was putting the final touches on his dissent 
regarding Jordan's and Evans' petitions. It was not, however, a cry of defeat 
or even a plea from the losing side of a battle. Far from that, his statement 
on the day after Kennedy announced his retirement was written in a way that 
suggested Breyer continues to believe, at least outwardly, that he can win over 
his colleagues to take up the question and end the death penalty.

3 years earlier, Breyer began this effort, writing a lengthy dissent in a death 
penalty case out of Oklahoma, Glossip v. Gross.

In the dissent, Breyer noted that the court had previously declared that the 
finality of the death penalty creates a heightened "need for reliability" in 
decisions that death is "the appropriate punishment" in any particular case. 
"There is increasing evidence, however, that the death penalty as now applied 
lacks that requisite reliability," he wrote, in an opinion joined by Justice 
Ruth Bader Ginsburg.

The unreliability question was 1 of 3 areas that Breyer spent 40 pages 
addressing. The 2nd - arbitrariness - focused on data showing that the death 
penalty does not punish "the worst of the worst," as intended, and that a 
"county-by-county disparity" exists, resulting in most death sentences across 
the country being imposed in a small handful of counties. The final area - "in 
part a problem that the Consti???tution's own demands create," Breyer 
acknowledged - is excessive delays that Breyer, like retired Justice John Paul 
Stevens before him, believes lead to "a 3rd independent constitutional 
problem."

For these reasons, Breyer concluded, "I believe it highly likely that the death 
penalty violates the Eighth Amendment." He, with support from Ginsburg, called 
for a "full briefing" on that "more basic question."

In the 3 years since Breyer's Glossip dissent, the court has trudged a 
complicated path on the death penalty - repeatedly refusing death row inmates' 
requests for the court to take up that more basic question but halting a 
handful of executions and at times reversing individual death sentences or 
specific states' procedures due to particularly egregious circumstances.

In those times when death row inmates have succeeded before the Supreme Court 
over the past few years - and particularly relevant now - Chief Justice John 
Roberts often has joined with Kennedy and the 4 more liberal justices in the 
majority.

Throughout that time, though, Breyer regularly has weighed in to remind his 
colleagues of the broader path he recommends. And while some advocates were 
pressing for a quick resolution - bringing cases to the court regularly that 
posed the question - Breyer has not taken the fact that the court has not done 
so as a sign that he should give up the effort. Rather than issuing a dissent 
declaring - as others have done before him - that he is done voting to allow 
any executions to proceed, he instead is continuing to take each case 
separately and highlight those that allow him to marshal additional facts to 
support his long-term effort.

In the January after his Glossip dissent, Breyer noted in a case out of Alabama 
that the "unfairness inherent" in treating similar cases differently because of 
how they arrive at the justices "only underscores the need to reconsider the 
validity of capital punishment under the Eighth Amendment."

Less than a month later, Justice Antonin Scalia unexpectedly died and, for a 
time, it seemed that those aggressive advocates might have a path ahead. A 
liberal court likely was ascending, it appeared - until it wasn't.

In the days before the 2016 election, the 8-justice court granted a stay of 
execution for an Alabama man, with Roberts joining the more liberal justices as 
a "courtesy" to allow them time to consider the inmate's request. A month after 
President Donald Trump's unexpected victory, however, the court split 4???4 on 
a stay request - Roberts did not provide the "courtesy" 5th vote for a stay 
that time - and the execution proceeded.

Trump's election did not, however, appear to change Breyer's efforts. In early 
2017, he highlighted his geographic concerns in a case the justices declined to 
hear - noting in dissent that the case had come to the justices from Caddo 
Parish in Louisiana, "a county that in recent history has apparently sentenced 
more people to death per capita than any other county in the United States."

The addition of Justice Neil Gorsuch to the court, as well, did not lead to a 
change in Breyer's "steady ahead" approach.

In another case where the court was constrained from reviewing the inmate's 
claims due to limits on federal review of state criminal convictions, Breyer, 
in November 2017, reiterated his concerns about how the length of time people 
spend on death row creates new problems in a case in which the inmate "lived 
nearly 1/2 of his life on death row."

Noting how many death row inmates facing execution are now older or even 
elderly, Breyer wrote of the practical concerns: "Rather than develop a 
constitutional jurisprudence that focuses upon the special circumstances of the 
aged, however, I believe it would be wiser to reconsider the root cause of the 
problem - the constitutionality of the death penalty itself."

In March of this year, Breyer - joined by all 3 of his liberal colleagues - 
detailed the ways in which Arizona's death penalty law, which includes so many 
circumstances as "aggravating factors" that almost all people convicted of 
murder are eligible for the death penalty, raises "an important Eighth 
Amendment question."

The statement didn't raise the broader question of whether the death penalty is 
ever constitutional. Instead, it focused on that "narrowing requirement" and 
included a request to get more "empirical evidence," as Breyer put it, before 
the court on the issue. With four justices on board, enough to have granted the 
case if they desired to do so, the side-stepping statement appeared to be an 
effort to get lawyers to make a stronger evidentiary argument advancing the 
arbitrariness concerns that Breyer detailed in his Glossip dissent before 
having the full court hear - and vote on - the arguments on the issue.

All of which comes to Breyer's dissent June 28, the day after Kennedy announced 
his retirement. Far from backing off on his Glossip dissent, it is, instead, 
Glossip 2.0 - a sign that Breyer plans to continue pressing ahead, perhaps with 
the goal of convincing Roberts - or Kennedy's eventual successor - of his 
position.

>From the start, Breyer noted his Glossip dissent and its focus on, in his view, 
the "unconscionably long delays, arbitrary application, and serious 
unreliability" of the death penalty in the US.

Evans and Jordan's cases out of Mississippi, he continued, "illustrate the 1st 
2 of these problems." He added that he also was writing "to highlight 
additional evidence" about the 3rd problem.

Jordan, Breyer wrote, was sentenced to death "nearly 42 years ago," living 
"more than1/2 of his life on death row" - "one among an aging population of 
death row inmates."

Both men were sentenced to death in the same judicial district in Mississippi, 
the district that Evans told the court "accounts for 'the largest number of 
death sentences of any of the State's 22 districts since 1976." This geographic 
concern, Breyer continued, is stark, citing data showing that there were only 
"16 counties, or 0.5% of all counties nationwide, in which 5 or more death 
sentences were imposed from 2010 to 2015." Reciting data about the reduced 
number of executions and new death sentences across the country, Breyer 
concluded that "the death penalty may eventually disappear." Regardless of that 
possibility, though, he wrote that such information "also shows that capital 
punishment is 'unusual' (as well as 'cruel')."

Adding 1 last note to the opinion - regarding the reliability factor - Breyer 
cited a Mississippi death row inmate who was exonerated in 2015, Willie 
Manning, and noted that 6 others across the nation have been exonerated since 
January 2017.

"Among them," he wrote, "are Rodricus Crawford, Rickey Dale Newman, Gabriel 
Solache, and Vicente Benavides Figueroa, whose exonerations were based upon 
evidence of actual innocence."

(source: BuzzFeedNews)