[Deathpenalty] death penalty news----N.H., PENN., FLA., TENN., NEB.

[Rick Halperin]

March 25




NEW HAMPSHIRE:

Constitutional Connections: The death penalty and the Constitution



The death penalty is back in the news. Last week, President Donald Trump argued 
that capital punishment should be available to punish drug dealers who have 
contributed to the opioid crisis. Earlier this month, in contrast, the New 
Hampshire Senate voted to prospectively repeal the state???s death penalty. 
These developments provide occasion to review the constitutional issues raised 
when the federal government or a state seeks to put a convict to death.

The basic question is whether, as a general matter, imposition of the death 
penalty is consistent with the Constitution. Ordinarily, those who see an 
inconsistency argue that the death penalty violates the Eighth Amendment's ban 
on "cruel and unusual punishments."

To many who disagree, this argument is silly. The Constitution contains 2 
due-process clauses that explicitly contemplate that the government may deprive 
a person of "life" (as well as "liberty" and "property") as long as it provides 
"due process of law" in doing so. Moreover, the Fifth Amendment provides that 
"no person shall be held to answer for a capital . . . crime, unless on a 
presentment or indictment of a Grand Jury." If the death penalty were 
unconstitutional, the argument goes, the Constitution would not impose 
conditions such as these for the taking of a life by government.

But the Supreme Court has not accepted the argument that the death penalty is 
constitutional simply because those who wrote the Eighth and 14th Amendments 
expected that it would be imposed. Rather, in a 1958 decision that supplies the 
relevant standard, the court stated that the Eighth Amendment "must draw its 
meaning from the evolving standards of decency that mark the progress of a 
maturing society."

In practice, the "evolving standards of decency" test invites an ongoing 
inquiry into the causes and effects of crime; the nature of and rationales for 
various criminal punishments; the reliability of the federal and state criminal 
justice systems; and the moral views of contemporary political societies - both 
at home and abroad. It treats the meaning of the Eighth Amendment's "cruel and 
unusual punishments" clause as fluid rather than static.

As a consequence, the Supreme Court has recently placed previously unrecognized 
limits on the availability of the death penalty. For example, the court has 
held that it now violates the Eighth Amendment to execute persons with severe 
mental disabilities; persons who committed their crimes while under the age of 
18; and persons who stand convicted of rape, child rape and other non-homicide 
crimes against individuals.

Each of these rulings necessarily rests on the premise that the Eighth 
Amendment prohibits punishments that are viewed as cruel and unusual today, and 
not merely punishments that were viewed as cruel and unusual in the 18th and 
19th centuries. Thus, at least insofar as the Eighth Amendment is concerned, 
the Constitution draws its meaning from contemporary norms.

But none of this is to say that the Supreme Court is on the cusp of declaring 
the death penalty unconstitutional. While Justices Stephen Breyer and Ruth 
Bader Ginsburg have signaled that they think the death penalty may violate the 
Eighth Amendment, and while there is reason to think that Justices Sonia 
Sotomayor and Elena Kagan may agree, no other member of the court has shown a 
sympathy for this view.

In fact, just this past week, the Supreme Court declined to take up a case that 
squarely raised the question whether the death penalty should be held 
unconstitutional per se. So apparently, there are not at present 5 votes to do 
away with capital punishment entirely.

Yet by operationalizing the Eighth Amendment through a standard that focuses on 
whether a challenged practice is consistent with "evolving" norms, the Supreme 
Court has ensured that the question whether the death penalty is constitutional 
will never be fully put to bed. And the recent tendency toward limiting its 
application has been unmistakable.

So why do those who believe the death penalty to be a cruel and unusual 
punishment hold this view? There are many reasons, but three inevitably take 
center stage in death-penalty debates.

First, in recent years, there has been an astonishing number of exonerations of 
persons on death row through DNA testing and other means. According to the 
Death Penalty Information Center, 161 persons who were sentenced to death and 
awaiting execution have been exculpated between 1973 and 2017. This means that 
the death penalty is prescribed (and surely has been imposed) on factually 
innocent persons with alarming frequency, notwithstanding the due-process 
requirements that attend capital trials. Many find the likelihood - or even the 
possibility - of government executing an innocent person to be reason enough to 
do away with the death penalty.

Second, some pharmaceutical manufacturers no longer sell their products to 
government purchasers who intend to use them in the "lethal injections" by 
which the death penalty has been administered in recent years. As a result, 
states have turned to alternative drug combinations in order to carry out 
capital sentences. And this has led to a number of recent executions where 
witnesses have reported that the convict suffered tremendous and prolonged pain 
and suffering during the execution. Many believe that the Constitution should 
be understood to prohibit the government from ever causing such pain and 
suffering.

Third, statistical analyses have repeatedly demonstrated that the death penalty 
has been and continues to be imposed in a racially discriminatory manner. These 
studies suggest that persons of color are somewhat more likely to receive a 
death sentence than similarly situated white defendants. Moreover, they 
convincingly show that a capital sentence is far more likely to be imposed in 
cases where victims are white than when the victims are African American, 
Latino or Hispanic. To many, a racially skewed death penalty regime is a 
fundamental breach of the Constitution???s promise of equal protection under 
law.

As long as the federal government and some states continue to impose the death 
penalty, and as long as we understand the Eighth Amendment to incorporate 
contemporary moral norms, debates about the death penalty's constitutionality 
will continue.

(source: John Greabe teaches constitutional law and related subjects at the 
University of New Hampshire School of Law----The Concord Monitor)








PENNSYLVANIA:

Frein appeal to be heard by Pa. Supreme Court in May



A Pennsylvania Supreme Court will hear arguments in May in the case of Eric 
Frein, who is challenging his 1st-degree murder conviction and death sentence.

On April, 19, 2017, jurors found Frein, 34, of Canadensis, Pa., guilty of 
1st-degree murder, among other offenses, for the Sept. 12, 2014 sniper ambush 
on the Blooming Grove state police barracks in which Cpl. Bryon Dickson II was 
killed and Trooper Alex Douglass seriously injured.

The jury imposed the death penalty on Frein on April 26, finding no mitigating 
factors to spare his life.

In the appeal, filed in the Court of Common Pleas in Pike County (Pa.), Frein's 
attorneys, William Ruzzo and Michael Weinstein, argue that Pike County trial 
Judge Gregory Chelak erred when he overruled their objection to the excessive 
victim impact statements made during the penalty portion of the trial.

"That testimony was highly emotional, lengthy and overrode any logical reasoned 
moral decision the jury could make to spare the life of the Defendant Eric 
Matthew Frein," the appeal states.

The attorneys ask to vacate the sentence of death for a new sentencing phase in 
which "victim impact evidence would be limited."

The appeal also argues that the judge did not allow the jury to consider 
mitigating factors and they claim Chelak erred when he denied a motion to 
suppress statements Frein made to police.

Frein's trial was stalled in April after his attorneys filed a motion to throw 
out videotaped evidence of Frein's confession after his capture. The judge 
declined the motion, allowing the video to be viewed by the jury.

Frein led authorities on a 48-day manhunt through the Pocono Mountains before 
being captured on Oct. 30, 2014 in an airport hanger.

While being interviewed at the Blooming Grove Barracks by 2 state troopers, 
Frein appeared to incriminate himself, but his attorneys argue that the police 
violated his rights after he told them in the video that he "didn't want to 
answer questions about crimes."

Pike County District Attorney Ray Tonkin told reporters Wednesday that he's 
already filed a comprehensive brief addressing each of the issues raised by 
Frein's attorneys.

In his statement, Tonkin said that police properly obtained statements from 
Frein and said that even if the appellate court finds they didn't, "other 
evidence is overwhelming."

The hearing will be held in Harrisburg at a time not immediately available.

Arguments will first be heard from defense attorneys before prosecutors will 
present their own argument.

A ruling is not expected to be handed down immediately, Tonkin said.

(source: New Jersey Herald)








FLORIDA:

Seeking death penalty is a big mistake



It was no surprise that the state attorney in Broward County, Florida, chose to 
seek the death penalty for the suspect in the Parkland school shootings.

My greatest sympathy goes to the loved ones of the victims. This trial, penalty 
phase and the years and years of media attention (should a death sentence be 
passed down) will haunt those who have already suffered mightily. They could be 
offered a false hope of justice, only to be tortured by the long process of 
possibly executing this individual.

Meanwhile, the 19-year-old suspect, if given the death sentence, will spend 24 
hours per day in a tiny cell. The exception being 2, 2-hour sessions in an 
exercise yard, time out of the cell for 2 10-minute showers a week and the 
opportunity to have visitors 2 days a week.

Due to the notoriety of this crime and the determination of many activists and 
attorneys not to allow any execution, in any case, to occur, there will be 
legal assistance for this suspect contributed on a national level.

It will cost the state millions of dollars to fight off challenges to this 
possible sentence, and an incredible number of man hours that could be used to 
pursue true justice and to fight to prevent either mass killings or random gun 
violence from occurring.

I hope public opinion, consideration of the victims' loved ones or the court 
system will allow Broward County to say no to the death penalty.

Richard J. Holsinger

Johnstown

(source: Letter to the Editor, Tribune Democrat)








TENNESSEE:

Could Tennessee use the electric chair this year? It's unlikely but possible



A push from Tennessee officials to schedule executions amid uncertainty over 
whether lethal injection drugs are available raises the prospect of the state 
using the electric chair in 2018 to put someone to death.

It's an outside chance, as legal challenges would likely delay any proposed use 
of the electric chair. But Tennessee is in a unique position, with the 
possibility for the country's first execution by electric chair since 2013 
arising after a recent series of decisions and comments from the state's 
highest court and law enforcement officer.

Earlier this year, Tennessee Attorney General Herbert Slatery asked the 
Tennessee Supreme Court to schedule eight executions before June 1. He said the 
executions must be scheduled by that day because thereafter, the availability 
of the drugs used for lethal injections would become "uncertain."

The state Supreme Court refused his request, instead scheduling 2 executions 
after June 1. A 3rd was already scheduled for later this year.

Tennessee is 1 of 9 states that can use the electric chair as a secondary 
method of execution, behind lethal injection, according to the Death Penalty 
Information Center, a national nonprofit that tracks information on capital 
punishment.

However, Tennessee can also mandate an execution by electric chair, if certain 
criteria are met.

There are several ways the electric chair could be used in Tennessee. Anyone 
who committed a crime before 1999 who is sentenced to death for that crime 
could sign a waiver stating they choose death by electrocution.

This was the case for Darryl Holton, who chose to die via electric chair. He 
was executed in 2007, convicted of killing his 3 sons and a stepdaughter in 
1997.

If lethal injections are declared unconstitutional, then the state can use the 
electric chair as the main means of execution.

The electric chair also may be used if the commissioner of the Tennessee 
Department of Correction "certifies to the governor" one or more drugs needed 
to carry out a lethal injection are unavailable.

It's this certification process that could arise in 2018, given Slatery's 
assertion the lethal injection drugs may be unavailable after June 1.

State law doesn't specify how the certification process would work. Neysa 
Taylor, a spokeswoman for the department, did not immediately respond to a 
question about the process.

"We've never had a situation in which a state has sought to declare a 
particular method of execution unavailable," said Robert Dunham, executive 
director of the Death Penalty Information Center.

Dunham said the assertion of an "uncertain" drug supply would have to be made 
in court.

"I would expect that there would be extended legal proceedings that would, at a 
minimum, take months and could take much longer," Dunham said.

Taylor has not specifically answered whether the drugs will expire after June 1 
or if the department anticipates using the electric chair this year.

"The Department of Correction is always prepared to adhere to the will of the 
court no matter the method," she recently said.

Asked if the lethal injection drugs would be available or expired after June 1, 
Taylor said "the ability to administer lethal injection drugs depends on the 
expiration date of the drugs in stock near the time of execution."

Death row inmates in Tennessee are challenging the constitutionality of lethal 
injection, arguing the current drug protocol amounts to cruel and unusual 
punishment.

A previous challenge to the constitutionality of the electric chair in 
Tennessee was deemed premature by the state Supreme Court in 2015. At the time 
time, the court noted no death by electric chair was imminent, but the 
challenge could be brought again if that changed.

Such a challenge would almost assuredly delay any use of the electric chair, 
Dunham said.

"I think we'll have to wait and see what Tennessee does, as opposed to what - 
behind a veil of secrecy - they say," Dunham said.

"But I think no matter what happens, the state is unlikely to be carrying out 
executions with the electric chair any time soon."

The last time Tennessee executed someone was 2009, when the state used lethal 
injection. There are 59 men and 1 woman on death row.

(source: The Tennessean)








NEBRASKA:

Transparency best solution as execution fights rage on



Nebraska's road to carrying out its 1st execution in more than 2 decades is 
littered with speed bumps.

Many of those hindrances have been self-inflicted, owing to state officials' 
overly broad, unjustified claim to privacy surrounding the 4-drug cocktail with 
which they hope to end the lives of convicted killers Jose Sandoval and Carey 
Dean Moore, who'd be the first humans executed by these means.

Whether it's the lawsuit filed by the American Civil Liberties Union and 
several media outlets - the Journal Star included - seeking the release of the 
drug sourcing or the recent suggestion that the state may have illegally 
obtained these substances, 1 common thread binds these struggles together.

All directly result from a lack of transparency. This outcome could have been 
avoided had the state merely been forthcoming about how the execution drugs 
were purchased and tested.

The state has repeatedly denied any impropriety, with Gov. Pete Ricketts 
accusing the ACLU of "fabricating charges in a desperate attempt to try to 
overturn the will of the people of Nebraska."

Yes, Nebraskans voted the death penalty back into existence 2 years ago. But 
that ballot initiative didn't exempt the state from accountability for how it 
carries out capital punishment.

Both the lawsuit and request for a Drug Enforcement Agency investigation are 
seeking just that. If the state legally obtained its execution drugs, then 
transparency would serve no harm. And it could easily be done in a manner that 
wouldn't identify members of the execution team, despite the state's professed 
grounds for denying multiple public records requests.

With the great power of determining life or death, the state must also bear the 
great responsibility of transparently laying out the process it will use to 
carry out this most severe sentence. To date, officials have not provided the 
requested details, hence the ongoing battles to extract this information to 
keep Nebraskans informed about how their government operates.

After all, we can't reiterate enough that the state's standing to tell 
Nebraskans "trust us" has been severely diminished by its past choices. For 
those who forgot the previous debacle, Nebraska had egg on its face - and no 
longer had $55,000 - after its shipment of sodium thiopental from a shadow 
broker in India was intercepted by the federal government.

Fool us once; shame on you. Fool us twice; shame on us.

And, to quote The Who's anthem, we won't get fooled again.

Until and unless the state proves that it has gone through the proper channels 
to purchase and test the drugs for its lethal injection process - which, again, 
has yet to be used in any execution - the calls for Nebraska officials to prove 
their acquisition of these substances remain justified.

(source: Editorial, Lincoln Journal Star)