[Deathpenalty] death penalty news----TEXAS, PENN., DEL., OHIO, ARK., NEV., CALIF., USA

[Rick Halperin]

April 2



TEXAS----impending execution

Death Watch: Meth, Madness, and Death----Capital case tests limits of insanity 
defense


Those closest to him would say that Kent Sprouse had been acting differently of 
late - that he'd begun seeing and hearing things that weren't there. People 
were "out to get him," one friend would testify. "People in camouflage with 
glowing eyes and guns were hiding behind the trees watching him." He'd grown 
paranoid, possibly schizophrenic. Frightened, upset, and easily agitated.

Those imbalances came to a head on Oct. 6, 2002, in Sprouse's hometown of 
Ferris, Texas, when Sprouse, still reeling from the effects of methamphetamine, 
pulled into the Ferris Food Mart with a shotgun in his car. He purchased a soda 
and some cigarettes, then returned to his car and had some trouble starting it. 
He asked a man standing nearby to help him, who declined, so Sprouse shot and 
killed that man, Pedro Moreno. Police responded almost immediately. A shootout 
ensued (Sprouse suffered injuries to his chest, leg, and hand), that resulted 
in the responding officer - Officer Marty Steinfeldt - being shot to death, as 
well. In the ambulance after the shootout, Sprouse told an attending officer 
that he believed both his victims were cops.

"Y'all think I didn't know it, but he was an undercover officer," Sprouse, then 
30, said of Moreno. "And I shot the officer that was in uniform."

An Ellis County jury spent 35 minutes deliberating and concluding Sprouse's 
guilt (as well as reviewing claims that he was clinically insane), before 
taking another 2 hours and 25 minutes to sentence him to death. A direct appeal 
was promptly denied, as have been all other subsequent appeals; Sprouse is 
scheduled to be executed on Thursday, April 9.

Efforts to save Sprouse have hinged on a number of issues relating to both 
ineffective counsel at trial and questions concerning Sprouse's potential as a 
"future danger" (the state responds that it took 30 years for Sprouse to kill 
Moreno, and only 2 minutes and 19 seconds to kill Ofc. Steinfeldt, though 
Sprouse previously had no criminal record). Mostly, however, attorneys Clinton 
Broden and John Helms have argued that the court erred when it allowed members 
of the trial jury to be instructed that they should not consider voluntary 
intoxication as a basis for temporary insanity. They say that instruction 
violated Sprouse's Eighth and Fourteenth Amendment rights.

Courts denying Sprouse's appeals have noted that he had an opportunity to 
contest those instructions throughout the course of his trial and his counsel 
chose not to do so. Further, the 5th Circuit Court of Appeals noted in an April 
2014 ruling, the jury determined there stood a great probability that Sprouse 
was a continuing threat to society, and that there was not sufficient 
mitigating evidence to warrant a life sentence. In November, the U.S. Supreme 
Court declined to hear an appeal, without comment. He received his execution 
date on Jan. 9.

Sprouse, now 42, nearly received a brief reprieve last month, while the Texas 
Department of Criminal Justice scrambled for more pentobarbital, the lethal 
injection drug it uses to kill death row inmates. Had the state killed Randall 
Mays on March 18 (and not subsequently acquired enough pentobarbital to move 
forward with the 4 scheduled April executions), Texas' death chamber wouldn't 
have had enough juice to kill Sprouse next Thursday. Alas, on Wednesday, March 
25, TDCJ acquired its additional death serum.

Should Sprouse be executed April 9, he'll be the 5th Texan executed this year 
under Governor Greg Abbott and the 523rd since the reinstatement of the death 
penalty in 1976.

(source: Austin Chronicle)

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

Executions under Greg Abbott, Jan. 21, 2015-present----4

Executions in Texas: Dec. 7, 1982----present-----522

Abbott#--------scheduled execution date-----name------------Tx. #

5------------Apr. 9--------------------Kent Sprouse---------523

6------------Apr. 15-------------------Manual Garza---------524

7-----------Apr. 23-------------------Richard Vasquez------525

8-----------Apr. 28-------------------Robert Pruett--------526

9-----------May 12--------------------Derrick Charles------527

10----------June 3--------------------Les Bower------------528

11-----------June 18-------------------Gregory Russeau------529

(sources: TDCJ & Rick Halperin)






PENNSYLVANIA:

Death penalty task force could work into next year


The legislative task force studying the state's death penalty is once again 
pushing back its deadline.

The panel was supposed to finish its work in December 2013, but it has 
repeatedly extended its timeline. Now, the agency putting together a final 
report says it might need until next year.

Sen. Daylin Leach (D-Montgomery) serves on the task force, which he said has 
taken on an unprecedented amount of research.

"There's nothing like this," said Leach. "This will be a very comprehensive 
study and you know we will get a sense of what the taxpayers are getting for 
their billions of dollars they're spending to have a death penalty in 
Pennsylvania."

Governor Tom Wolf's effective moratorium has put a spotlight on the task 
force's findings and recommendations. When Wolf announced the moratorium on the 
death penalty in mid-February, he said it would last at least until the task 
force issued its recommendations.

"I am concerned about the timeline," said Rep. Mike Vereb (R-Montgomery), a 
critic of Wolf's move to bar executions. He also pointed out that members of 
his House GOP caucus are worried their views won't be considered. The task 
force is made up of 4 senators - 2 from each party. An advisory commission 
represents different views relevant to the capital punishment in Pennsylvania, 
such as prosecutors, defense lawyers, and criminal justice experts.

Wolf's moratorium is being challenged in court by Philadelphia's district 
attorney, who has said it's unconstitutional. The state Supreme Court will 
consider the case.

(source: WITF news)

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

Pa. task force studying death penalty eyes another extension


The legislative task force studying Pennsylvania's death penalty is once again 
pushing back its deadline.

The panel, which was expected to finish its work in December 2013, has 
repeatedly extended its timeline

Now, the agency putting together a final report says it might need until next 
year.

Sen. Daylin Leach, D-Montgomery, serves on the task force, which he said has 
taken on an unprecedented amount of research.

"There's nothing like this," said Leach. "This will be a very comprehensive 
study, and you know we will get a sense of what the taxpayers are getting for 
their billions of dollars they're spending to have a death penalty in 
Pennsylvania."

Gov. Tom Wolf's effective moratorium has put a spotlight on the task force's 
findings and recommendations. When Wolf announced the moratorium on the death 
penalty in mid-February, he said it would extend at least until the task force 
issued its recommendations.

"I am concerned about the timeline," said state Rep. Mike Vereb, R-Montgomery, 
a critic of Wolf's move to bar executions. He also pointed out that members of 
his House GOP caucus are worried their views won't be considered.

The task force is made up of 4 senators - 2 from each party. An advisory 
commission represents different views relevant to the capital punishment in 
Pennsylvania, such as prosecutors, defense lawyers, and criminal justice 
experts.

Wolf's moratorium is being challenged in court by Philadelphia District 
Attorney Seth Williams, who has said it's unconstitutional. The state Supreme 
Court will consider the case.

(source: newsworks.org)






DELAWARE:

Death penalty vote expected in Delaware


The state Senate is set to vote on a bill to abolish Delaware's death penalty.

The legislation, which cleared a Senate committee last week, mirrors a bill 
that passed the Senate in 2013 by only 1 vote before dying in a House 
committee. The bill removes execution as a possible punishment for 1st-degree 
murder, leaving life in prison without the possibility of parole as the only 
sentence.

The measure, which faces opposition from the law enforcement community, would 
not apply to inmates currently on death row.

Chief sponsor Sen. Karen Peterson, who also led the failed repeal effort 2 
years ago, said death penalty opponents believe capital punishment is 
arbitrary, discriminatory against minorities, costly to taxpayers and 
ineffective as a deterrent to crime.

The vote is set for Thursday.

(source: newsworks.org)






OHIO:

Defendant given money to hire experts in death penalty case


A man facing the death penalty in the June beating death of a Uniopolis man in 
his house was given up to $19,200 Tuesday to hire experts to help his case.

James Dinsmore, 28, was approved up to $13,500 to hire a forensic psychologist, 
$4,200 to hire a mitigation specialist and $1,500 to hire an investigator.

Dinsmore is charged with 2 counts of aggravated murder and 1 count each of 
aggravated burglary, kidnapping and intimidation of a witness.

He is charged in the June 9 death of Charles Hicks, 54, who was found dead in 
his upstairs apartment at 2 Main St. in Uniopolis. Court records suggest a 
possible motive for the slaying was to prevent Hicks from testifying as a 
witness in a criminal case.

During the hearing Tuesday, Assistant Auglaize County Prosecutor Andrew 
Augsburger said he gave Dinsmore's attorneys 719 pages of evidence along with a 
DVD and CD.

Dinsmore also waived his right to a speedy trial until June 1, 2016. Judge 
Frederick Pepple of Auglaize County Common Pleas Court also ruled jail 
personnel and others connected to the state cannot initiate conversations with 
Dinsmore about the crime to try to elicit information to use in the 
prosecution.

Pepple did not rule on a motion for Dinsmore to appear in street clothes rather 
than jail garb during all proceedings. Dinsmore's lead attorney, Greg Meyers, 
said any pictures the media may take, if the media cover any proceedings at 
all, may be published and viewed by potential jurors. Someone in shackles, 
handcuffs and jail garb may not look like an innocent person, he said.

Dinsmore has a case pending in Allen County where he is a charged with 
attempted murder and 2 counts of felonious assault. He is accused of stabbing 
his 27-year-old girlfriend Oct. 4.

On Monday, Aaron Dietrich, 26, of Wapakoneta, appeared at a pretrial. He also 
waived his right to a speedy trial. A 3rd man, Joseph Furry, 30, of Van Wert, 
also is charged. In all 3 cases, prosecutors were seeking the death penalty.

(source: limaohio.com)



ARKANSAS:

Defense granted more time in Arkansas death-penalty trial


Attorneys for a Bentonville man accused of killing his grandmother have been 
granted more time by a judge to review findings of their client's mental 
evaluation.

The Northwest Arkansas Democrat-Gazette (http://bit.ly/1ag76u8 ) reports that 
26-year-old Michael Eugene Conklin appeared in court Monday for a mental status 
hearing. Conklin had previously pleaded innocent to capital murder for stabbing 
76-year-old Nelma Darline Conklin in the neck in her Bentonville home.

Conklin was ordered in October to undergo a mental evaluation at Arkansas State 
Hospital in Little Rock, and court proceedings were halted. The evaluation will 
determine if Conklin is fit to stand trial.

Police reportedly found Nelma Conklin dead in her garage while conducting a 
welfare check July 20. According to a probable cause affidavit, her body was 
concealed by trash bags and cardboard.

Prosecutors are seeking the death penalty for Conklin, who lived with his 
grandmother.

(source: Associated Press)






NEVADA:

Judge sentences man, once facing death, to 14 to 25 years in prison


A man with an intellectual disability who had faced the death penalty for more 
than 6 years was sentenced Tuesday to 14 to 25 years in prison in connection 
with a 2008 fatal shooting.

Frederick Desun Schneider, 32, has been behind bars since the slaying of 
Antonio Mooney, 25.

In January, Schneider pleaded guilty to second-degree murder and battery with 
use of a deadly weapon. A gunshot also hit another man's shoe when Schneider 
fired outside an apartment complex at 1555 Balzar Ave., near Lake Mead 
Boulevard and Martin Luther King Drive.

2 months before his plea, District Judge Michael Villani granted a request by 
Schneider's attorneys to throw out the death penalty.

A psychologist found Schneider has an IQ of 65, according to defense lawyer 
Monti Jordana Levy.

Schneider was born addicted to drugs, Levy said. His mother used heroin 
throughout her pregnancy and never bonded with him. He was raised by older 
siblings and a grandmother, and had repressed memories of suffering abuse as a 
child.

Prosecutors did not offer a rebuttal witness to the psychologist's testimony, 
according to Villani's decision.

In removing the death penalty, the judge ruled that Schneider had "significant 
limitations in intellectual functioning" and "adaptive functioning," which 
started before he turned 18. That met the 3 concepts the Nevada Supreme Court 
ruled would clarify the definition of intellectual disability, the judge wrote 
in his decision.

In 2002, the U.S. Supreme Court ruled that executing inmates with "mental 
retardation" violates the constitutional ban on cruel and unusual punishment.

If the case had gone to trial, Levy said she could have argued self-defense, as 
another person who was at the scene admitted to firing a gun, and the victim 
initiated the confrontation.

Mooney, the father of 2 children, was shot in the back June 7, 2008, after he 
confronted a group of men he believed had robbed his girlfriend's apartment. 
Mooney noticed the door had been kicked in, stepped outside, and a quarrel 
ensued before Schneider shot Mooney, who died later at University Medical 
Center, police said.

At the time of the killing, police said Schneider, who was originally charged 
with murder with use of a deadly weapon and assault with a deadly weapon, was a 
gang member in an area known for heavy gang activity.

Schneider, who goes by the nicknames "Henry" and "Hen-dog," initially denied 
being the gunman, but witnesses identified him.

On Tuesday, Villani gave Schneider credit for the 2,485 days - nearly 7 years - 
he has been held in the Clark County Detention Center.

That means Schneider could be eligible for parole in about 7 years.

Levy said Schneider has been a "model inmate" at the jail.

(source: Las Vegas Review-Journal)






CALIFORNIA:

U.S. appeals court overturns death sentence of California man


A federal appeals court unanimously overturned the death sentence Tuesday of a 
California man, ruling that his lawyer was incompetent during the penalty phase 
of his trial.

A 3-judge panel of the U.S. 9th Circuit Court of Appeals ordered California to 
reduce the inmate's sentence to life without parole or give him a new 
sentencing trial on the grounds that his lawyer failed to investigate and 
present evidence that might have persuaded the jury to spare his life.

Tuesday's decision referred to the inmate as only John Doe, saying sexual abuse 
he suffered in prison might "place him at risk in a prison environment." The 
ruling also referred to others in the case, including the defense lawyer who 
performed ineffectively and the murder victim, by only their initials.

Doe was convicted of killing a woman in 1984 during a burglary at a house near 
where he lived. The court did not identify the county in which the crime 
occurred.

During the penalty phase of Doe's trial, when jurors decide whether the 
defendant should be sentenced to death or life without parole, Doe's lawyer 
failed to present evidence that he had been repeatedly raped in prison in the 
South when he was teenager, had been neglected and abused as a child and had 
developed mental illness and engaged in substance abuse.

"Evidence about Doe's childhood would have demonstrated to the jury that the 
trauma he suffered in prison was not isolated, but rather the most disturbing 
of multiple episodes in a horrific series that stretched back to his birth," 
Judge Stephen Reinhardt, a Carter appointee, wrote for the court.

Under a 1996 law, federal judges must defer to the decisions of state judges in 
such cases. The California Supreme Court upheld Doe's conviction and sentence.

But because Doe filed his challenge in 1994, the panel said it was entitled to 
review the evidence from a fresh perspective.

"There is a substantial probability that there would have been a different 
result at the penalty phase had counsel's performance during that phase of the 
trial not been ineffective," the panel concluded.

The ruling quoted Doe's lawyer, identified as J.B., as admitting he did not 
prepare adequately for the penalty phase because he was inexperienced and 
over-confident.

Doe was 17 when he was sent to a "notorious" but unidentified prison in the 
South for stealing 2 purses, the court said. Evidence indicated Doe was 
brutally and repeatedly raped while in prison and emerged years later with 
major depression and post-traumatic stress disorder, according to the court.

(source: Los Angeles Times)






USA:

State leaders react to pharmacists association's new policy against selling 
execution drugs----Move not expected to trigger state legislative action any 
time soon


Since the U.S. Supreme Court reinstated the death penalty in 1976, the state of 
Texas has executed more than a third of all inmates in the nation.

But Texas and 7 others that use pentobarbital - a sedative and sleep-inducing 
drug - to execute inmates find themselves with a short supply of the 
barbiturate.

To complicate matters, at their annual meeting in San Diego, the American 
Pharmacists Association delegates on Monday adopted a policy that makes an 
ethical stand against supplying such drugs to those states on grounds that the 
drugs they sell are for helping people, not for killing them.

"Pharmacists are health care providers and pharmacist participation in 
executions conflicts with the profession's role on the patient health care 
team," the association's CEO Thomas Menighan said in a statement posted on the 
organization's website.

"This new policy aligns APhA with the execution policies of other major health 
care associations including the American Medical Association, the American 
Nurses Association, and the American Board of Anesthesiology." Menighan said.

The website also recognized "the move could make executions harder for states 
that have been ordering their drugs from compounding pharmacies."

Jason Clark, spokesman for the Texas Department of Criminal Justice, the agency 
in charge of executions in the state, said his office had no comment on the 
association's new policy.

As for the short supply of the lethal drugs, "the Texas Department of Criminal 
Justice has obtained a new supply of pentobarbital, which will allow the agency 
to carry out executions that are scheduled for the month of April," Clark said 
in an email.

"The drugs were purchased from a licensed pharmacy that has the ability to 
compound," Clark said. "We continue to explore all options, including the 
continued used of pentobarbital or alternate drugs to use in the lethal 
injection process."

Rick Halperin, a death penalty opponent who praised the association???s move, 
said Texas and the other states that execute inmates with lethal injections are 
going to have to rely on drugs from compounding pharmacies and those narcotics 
are difficult to get.

Compounding pharmacies combine, mix or alter drugs to meet specific needs of 
buyers and patients.

Regular pharmacies "are going to be reluctant," to sell the lethal drugs those 
states want, said Halperin, director of the Human Rights Program at Southern 
Methodist University in Dallas.

"I think 1 or 2 things are going to be in the bigger picture: in the short 
term, Halperin said. "I think states like Utah, Wyoming and Oklahoma that are 
determined to kill inmates at any cost will have discussions about other 
methods like firing squads, nitrogen (gas) and the electric chair.

"So, I think we are going to re-visit the discussion of those terrible methods 
that were stopped years ago," he predicted. "Lethal injection was first used in 
the United States, in Texas, in December of 1982, so it's been about 33 years 
that Texas has used the needle."

However, the shortage of lethal drugs is not likely to be addressed in the 
current session of the Texas Legislature, unless Gov. Greg Abbott, House 
Speaker Joe Straus or Lt. Gov. Dan Patrick - the presiding officer of the 
Senate - issue special authorization.

The green light would be necessary because the bill-filing deadline for this 
session was March 13.

On the flip side of the issue, Sen. Eddie Lucio Jr., D-Brownsville, and Rep. 
Harold Dutton, D-Houston, filed bills aimed at abolishing the death penalty in 
Texas.

Although Dutton said at a recent press conference that the state government 
shouldn't be in the death business, his and Lucio's proposals are not expected 
to pass in the Republican-dominated Legislature.

A recent poll conducted by the University of Texas and the Texas Tribune showed 
3 of every 4 Texans support the death penalty for violent crimes.

In addition, Abbott - who was the state attorney general for 12 years before 
being elected to his current post - is a staunch supporter of the death 
penalty.

Last summer, Abbott even accused his Democratic opponent, former state Sen. 
Wendy Davis of Fort Worth, of flip flopping on the issue.

(source: Lubbock Avalance-Journal)

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

Why death penalty states may have harder time finding lethal-injection drugs


States that administer the death penalty could face additional obstacles after 
2 groups representing pharmacists told their members to stop providing drugs 
for use in lethal injection.

On Monday, the American Pharmacists Association voted to oppose participation 
in executions, stating that to help put a person to death violates the goals of 
the profession. The move comes just one week after the International Academy of 
Compounding Pharmacists adopted a similar position.

"It's never been legal in the US to write a prescription to execute a person," 
William Fassett, the board member and professor emeritus of pharmacotherapy at 
Washington State University, Spokane, who drafted the policy, told The 
Huffington Post. "The basic federal law is that a prescription is to be used 
for medical proposes in the context of an established patient-physician 
relationship."

While neither policy is legally binding, experts suspect that the measures will 
dissuade specialty pharmacists, who recently became the only source for lethal 
injections in many states, from selling their products for use in executions. 
Moreover, the decision was made with almost no opposition within the 
association, as the lethal-injection cocktails has become both unprofitable and 
unpopular.

Compounding pharmacies, which combine, mix, or alter drugs to meet the needs of 
a patient with a specific prescription, only recently became involved in the 
execution-drug business.

For decades, pharmaceutical manufacturers sold the drugs used in 
lethal-injection cocktails directly to state officials. But in 2011, under 
pressure from anti-death penalty activists in the United States and abroad, the 
companies stopped selling their goods to correctional systems. That same year, 
the European Union instituted an export ban on lethal-injection drugs. It was 
then that the states turned to compounding pharmacies for the special orders.

But the cocktails produced by the compounding pharmacies are not approved by 
the US Food and Drug Administration, and critics have expressed doubts about 
the quality of the drugs. The Supreme Court is expected in April to hear 
arguments in a case weighing whether 1 drug used in used in Oklahoma executions 
violates the Eighth Amendment prohibition against cruel and usual punishment. 3 
states - Georgia, Alabama, and Ohio - have issued temporary moratoriums on 
executions this year.

Protesters also have targeted compounding pharmacies known to supply drugs for 
executions. As a result, several pharmacies have decided not to sell the drugs 
to prisons.

"Executions are bad for business for compounding pharmacies for the same reason 
they were bad for business for the pharmaceutical companies," Corinna Lain, 
professor at the Richmond School of Law, told NBC News.

"The cost of these drugs has skyrocketed from something like $83 a vial to 
$1,200 to $1,500 a vial. But that's still a drop in the bucket for a pharmacy's 
total sales. And look at the downside - the negative publicity is tremendous," 
Professor Lain said.

The attention from activists eventually led to the adoption of the new policy, 
observers say. Last year, after members of the activist group SumofUs.org 
noticed that pharmacists were not prohibited from participating in executions 
by professional oaths or organizations, they decided to lobby, the Huffington 
Post reported.

The organization partnered with Amnesty International, the NAACP, the National 
Council of Churches, and other groups to send a letter co-signed by 31 human 
rights organizations and religious denominations to the pharmacists' 
association, requesting that it take a stand against pharmacists participating 
in executions.

"The question about whether pharmacists should be involved in executions is a 
very recent one," Kelsey Kauffman, a senior adviser at the activist group 
SumofUs.org, told The Huffington Post. "The [American Medical Association] and 
nurses associations have had to deal with it for decades."

Doctors and anesthesiologists have long had national associations with ethics 
codes that restrict credentialed members from participating in executions. Now, 
the pharmacists have decided to join their ranks.

The American Pharmacists Association has more than 62,000 members, and its 
policies set the ethnical standards of its members.

"Now there is unanimity among all health professions in the United States who 
represent anybody who might be asked to be involved in this process," the 
American Pharmacists Association's Fassett told the Associated Press.

Several states have approved alternatives to lethal injection, such as the 
electric chair and the firing squad, as lethal-injection drugs became more 
difficult to acquire.

(source: Christian Science Monitor)

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

When may jury no-death-penalty decisions be trumped by the judge?


The Supreme Court will likely decide in the next few days whether to take a 
case raising this issue, Lockhart v. Alabama. If you're interested in the right 
to jury trial - see, e.g., Ring v. Arizona, which held that any facts relevant 
to whether to impose a death sentence must be found by a jury - or in the death 
penalty, check it out; the petition lays things out well, and the government's 
brief ably presents the counterargument, and there's also a reply and an amicus 
brief. An excerpt from the amicus brief:

Mr. Lockhart's sentence violates [the jury trial right] in 2 clear ways. First, 
Alabama judges can override jury-determined life sentences only if they 
judicially find sufficient facts to support the override - a remarkably 
clear-cut Apprendi violation. If a trial court's factual findings are 
insufficient to support a death sentence, the Alabama Supreme Court will 
reverse and order entry of life without parole ... . Alabama trial courts are 
further empowered to make these findings "based upon information known only to 
the trial court and not to the jury, when such information can properly be used 
to undermine a mitigating circumstance." Carroll v. State, 852 So. 2d 833, 836 
(Ala. 2002). Mr. Lockhart's sentencing judge thus made nearly 20 pages of 
judicial fact-findings - 7 based on facts not known to the jury - and concluded 
that "had the jury been aware of the additional facts known to the Court, their 
sentencing recommendation would likely have differed." Those findings were 
"necessary for imposition of the death penalty" and thus violated the Sixth 
Amendment. Ring v. Arizona, 536 U.S. 584, 609 (2002).

Second, individuals are eligible for the death penalty under Alabama law only 
if the "aggravating factors ... outweigh the mitigating circumstances." Here, 
the jury unanimously found that they do not. That should have been the end of 
the matter, since imposing any greater punishment required the judge to make a 
contrary finding. After all, "the fundamental meaning of the jury-trial 
guarantee of the Sixth Amendment is that all facts essential to imposition of 
the level of punishment that the defendant receives ... must be found by the 
jury beyond a reasonable doubt." Ring, 536 U.S. at 610 (Scalia, J., 
concurring).

And here's an excerpt of Ex parte Waldrop (Ala. 2002), which generally upheld 
the Alabama scheme:

Waldrop also claims that Ring and Apprendi require that the jury, and not the 
trial court, determine whether the aggravating circumstances outweigh the 
mitigating circumstances. Specifically, Waldrop claims that the weighing 
process is a "finding of fact" that raises the authorized maximum punishment to 
the death penalty....

Contrary to Waldrop's argument, the weighing process is not a factual 
determination. In fact, the relative "weight" of aggravating circumstances and 
mitigating circumstances is not susceptible to any quantum of proof.... This is 
because weighing the aggravating circumstances and the mitigating circumstances 
is a process in which "the sentencer determines whether a defendant eligible 
for the death penalty should in fact receive that sentence." Moreover, the 
Supreme Court has held that the sentencer in a capital case need not even be 
instructed as to how to weigh particular facts when making a sentencing 
decision. See Harris v. Alabama, 513 U.S. 504, 512 (1995).

Thus, the weighing process is not a factual determination or an element of an 
offense; instead, it is a moral or legal judgment that takes into account a 
theoretically limitless set of facts and that cannot be reduced to a scientific 
formula or the discovery of a discrete, observable datum.... Consequently, 
Ringand Apprendi do not require that a jury weigh the aggravating circumstances 
and the mitigating circumstances.

(source: Eugene Volokh teaches free speech law, religious freedom law, 
church-state relations law, a First Amendment Amicus Brief Clinic, and tort 
law, at UCLA School of Law, where he has also often taught copyright law, 
criminal law, and a seminar on firearms regulation policy----Washington Post)

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

The Immoral Maze of the Death Penalty


The US state of Oklahoma's recent move to introduce nitrogen gas executions has 
apparently been "inspired" (if that's the right word) by the former 
Conservative minister Michael Portillo's TV programme about supposedly "humane" 
execution methods. If the proposal goes through it means that in the event of 
lethal injection drugs not being available in Oklahoma, the state's 2 death row 
institutions (1 for men, 1 for women) would revert to execution method #2: 
death-by-gasmask.

As grotesque as it sounds, Portillo reckons nitrogen gas suffocation is the 
"perfect killing device, an entirely humane way of killing a prisoner." There's 
a history to this sort of thing. Since at least 1889 and New York State's 
introduction of the electric chair, various lawmakers and governments have been 
intent on developing more "humane" methods of execution (even the guillotine 
and other earlier beheading machines may have had speed, "efficiency" and 
pain-minimisation in mind).

So 125 years ago we had "modern" death by electricity rather than the messy 
business of strangulation/spinal cord severance by hanging. Then, over in 
Britain, which didn't adopt the electric chair, there were the "tidier", 
pseudo-scientific measured drops of Albert Pierrepoint's hangings, another 
supposedly humane innovation. Then lethal injection, with its pseudo-medical 
procedure, complete with hospital trolley-like gurneys and all-white execution 
chambers. Now, after it's become all too evident that the drugs don't always 
work and grisly botched executions are the result, there are these swerves 
toward gasmasks and (in Utah) firing squads*. Meanwhile, the state of Alabama 
has reintroduced the electric chair as a back-up to lethal injections 
(Tennessee did the same last year), and a state senator in Nebraska is 
proposing a combination of a lethal injection and a firing squad. They'll be 
back to hanging, drawing and quartering before long ...

(A thought. After the mass gassings of millions of Jewish and other people in 
the Nazi death camps, are we really going to have people gassed to death in 
21st-century USA? It's a shocking thought, but then so too is the thought that 
dozens of executions by lethal injection occur in the USA every year. For the 
fuller picture over which countries - 22 in all - carried out executions last 
year, go here).

But how "humane" is any of this, no matter which method is used? Given of 
course we're already talking about a criminal justice system which effectively 
says to the accused: you're on trial for your life; if we find you guilty we're 
going to kill you. Given this - and everything that may go with it (concocted 
or withheld evidence, highly political cases, bungled trials, disparities 
between the imposition of a death sentence in one case and not in another 
almost identical one, and so on and so on), does it even matter which method 
they use? I'd say no, not really. They're all inhumane in principle. The 
practice is simply another layer of inhumanity, to a greater or lesser degree.

In his essay Reflections On Hanging, Arthur Koestler pinpoints the true horror 
of the death penalty - its pretence at civility. Remembering the chilly 
bureaucratic atmosphere of Kafka's world, Koestler says:

"There is indeed a Kafkaesque horror attached to an execution, which goes 
beyond the mere fear of death or pain or indignity. It is connected not with 
the brutality but with the macabre, cold-blooded politeness of the ceremony, in 
which the person whose neck is to be broken is supposed to collaborate in a 
sensible manner, as if it were a minor surgical operation."

Those about to be executed who struggle or scream (like the Burmese woman Laila 
Bint Abdul Muttalib Basim dragged through a car-park to be publicly beheaded in 
Mecca earlier this year) rupture this facade of civility. They remind us of the 
true horror of the so-called "execution protocol." Yes, I know that some people 
may say: Ah, but what about the people they killed? Who cares about their 
struggles, their screams? And the answer is: we all do, or all should, and 
that's why we should invest our efforts in a justice system that's fair, 
well-resourced, free of bias and discrimination, but also free of cruelty (the 
cruelty is best left to the murderers, not aped in the punishments).

Well, there you have it. I've laid my moral cards on the table. Unlike, Mr 
Portillo, I don't believe in the search for the "perfect killing device" and I 
can't help thinking that the former member for Enfield Southgate should stick 
to his great train journeys or his pundit role on Radio 4's Moral Maze. Those 
who cite religious texts or "morality" or "justice" as they call for capital 
punishment may do so "in good faith" (though some do not), but even a brief 
glance at the shocking state of capital punishment around the world should 
quickly disabuse them of this faith. There's an easy way out of this particular 
moral maze: just accept that killing people in the name of justice is 
indefensible and get rid of the death penalty.

*If you happen to own a pair of Nike trainers, you might be less than inspired 
to go for a run in them or whatever when you realise that their "inspirational" 
Just Do It slogan is apparently an adaptation of Gary Gilmore's last words as 
he faced a firing squad in Utah in 1977. Looking through Gary Gilmore's eyes 
indeed. Whoosh! Maybe I'll stick to my no-trainers policy ...

(source: Neil Durkin, Press Officer at Amnesty International UK----Huffington 
Post)

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

New execution methods fuel contempt for death penalty


Controversial political topics have been constantly weaving their way in and 
out of the news. From the Hobby Lobby Supreme Court decision to legalizing 
marijuana, there is always a topic at hand that can be debated. Recently in the 
news, bills relating to the death penalty have been appearing in the headlines, 
with 2 major bills now approving firing squads in Utah and nitrogen hypoxia in 
Oklahoma for capital punishment.

Currently, 32 states, including those prosecuted by the U.S. government and 
military, carry the option of capital punishment. (Death Penalty Information 
Center, 2015) Each state has different rules and policies about the crimes that 
can carry the death sentence; for example in Missouri any sort of 1st degree 
murder is punishable by death, while in Virginia it's only punishable in one of 
15 different aggravating instances. Thus the laws about the death penalty are 
customized to each state's preference, are very specific and are often debated 
or changed, with recent changes most interested in ensuring execution methods 
that are viable while remaining humane.

In 2014, 4 cases of capital punishment were cited to have malfunctions or 
issues during the procedure. These cases all used the most common method of 
execution in the U.S.: letal injection. However, many companies that once 
supplied the pharmaceuticals are now changing their mind, choosing to 
dissociate themselves with the death penalty. This has made the drug cocktail 
needed for lethal injection harder to obtain, and some states choosing to 
experiment with the drugs needed. (CSG, Lethal Injection Drug Shortage, March 
2015) On March 4, Akorn Pharmaceuticals, a major manufacturer for 2 of the 
major drugs used in lethal injection, decided to block all sales to prisons, 
making access to these drugs as a method of execution even more difficult. This 
lack of supply has been cited as the cause for many botched executions.

Arizona Republic reporter Michael Kiefer was a witness Joseph Wood's execution, 
who was convicted for a double murder in Arizona. The state had implemented a 
new drug formula on Wood that took 15 doses and 2 hours for Wood to pass. 
Kiefer noted Wood's seizure-like state during the process, citing at least 640 
intense convolutions, and recalled thinking that Wood was not actually going to 
die as he stared at the horrified faces of law enforcement officials in the 
room. (NPR, "Botched Lethal Injection Executions Reignite Death Penalty 
Debate," 1.6.2015)

Now, with the lack of necessary drugs and concern over botched executions, 
officials in Utah and Oklahoma have turned to other options for capital 
punishment. Utah has passed a law that allows for firing squads to be used if 
lethal injection drugs are not available at the time of execution, providing 
the state a fallback method. Officials such as Rep. Paul Ray (R-Utah) have 
claimed that the firing squad may also be a more humane form of execution 
because it ensures a more immediat death and therefore less suffering, in 
contrast to the botched execution Kiefer reported. (CBS News, "Utah governor 
OKs alternate form of capital punishment," 3.25.15)

Utah Governor Gary Herbert has also made a public statement regarding his 
decision to sign the bill: "We regret anyone ever commits the heinous crime of 
aggravated murder to merit the death penalty and we prefer to use our primary 
method of lethal injection when such a sentence is issued. However, when a jury 
makes the decision and a judge signs a death warrant, enforcing that lawful 
decision is the obligation of the executive branch." Utah is now the 2nd state 
to once again allow death by firing squad, the other being Oklahoma. (Mic, 
"Utah Has Officially Signed into Law the Most Inhumane Capital Punishment 
Ever," 3.24.15)

Oklahoma has also passed a bill to permit nitrogen hypoxia as a secondary 
method for capital punishment if there is lack of drugs available for lethal 
injection. Michael Copeland, who previously served as the Assistant Attorney 
General of Palau and a criminal justice professor at East Central University, 
proposed this methodology claiming it as more humane. To cause hypoxia, or 
death by lack of oxygen, the offender would breathe pure nitrogen gas. (The 
Atlantic, Can Executions Be More Humane?, 3.20.15) Copeland claims that death 
by nitrogen hypoxia would be painless and has explained the process, stating, 
"[when] the switch to pure nitrogen occurs, he would simply lose consciousness 
about 15 seconds after the switch was made. Approximately 30 seconds later, he 
would stop producing brain waves, and the heart would stop beating about 2 to 3 
minutes after that."

Still, Oklahoma has a reputation for botched executions, including the 
execution of Clayton Lockett in 2014 and more recent execution pf Charles 
Frederick Warner, who declared, "my body is on fire" during his execution, 
although no physical distress was observed. (CBS News, Oklahoma puts 1st inmate 
to death since botched execution, 1.25.15) The state's lethal injection 
protocol is actually under review by the U.S. Supreme Court, and 3 scheduled 
executions in the state have been postponed. This investigation may be the 
reason that the state is looking for alternatives like firing squads and even 
the electric chair.

These new execution methods have sparked much debate over the death penalty and 
what is right and wrong about carrying it out. Many argue that no matter what 
method is used, employing capital punishment is wrong, unjust and immoral. 
Famed anti-death penalty advocate and nun Helen Prejean has made statements 
reminding that capital punishment is another term for murder, informing the 
public, "it is listed as 'homicide' on the deceased's [prisoner's] death 
certificate." (The Salt Lake Tribune, "'Dead Man Walking' nun: Utah's firing 
squad reveals brutality of capital punishment", 3.24.15) Randy Garner, whose 
brother was executed by firing squad, has also spoken out against capital 
punishment: "When you take somebody and you tie them to a chair, put a hood 
over their head, and you shoot them from 25 feet with four rifles pointed at 
their heart, that's pretty barbaric."

But at the same time, many cannot forget that those sentenced to capital 
punishment are sentenced for a particular reason - they have committed a 
heinous crime that has most likely caused intense suffering. Joseph Wood 
received his punishment for killing his ex-girlfriend, Debbie Dietz, as well as 
her father. Wood was abusive to Dietz in their 5-year relationship and had been 
documented in several domestic violence incidents. After Dietz attempted to get 
a protection order against Wood, he fatally shot her father to death in front 
of her before screaming profanities and fatally shooting her too. Dietz's 
sister, who attended Wood's execution, made a statement and claimed that she 
did not think Wood suffered through his execution. She stated, "You don't know 
what excruciating is. Excruciating is seeing your dad lying in a pool of 
blood." (Mirror, "The shocking murders that put botched execution inmate Joseph 
Wood on death row," 7.24.14) Clearly, pain and sorrow are still felt by the 
victims' family when Wood was finally executed 29 years after the murders. For 
many victims and family members, capital punishment is a form of closure, and 
for some, it also yields a sense of justice.

Kent Scheidegger, a top lawyer at the Criminal Justice Legal Foundation, has 
spent nearly 30 years dedicating his professional life to defending the death 
penalty. He identifies himself as a supporter of victims and believes that the 
death penalty may help deter crime. Scheidegger has served in the Air Force, 
earning his law degree while on active duty, and claims his support for capital 
punishment and military service come from the same core beliefs. (National 
Journal, "Mr. Death Penalty," 9.6.2014) He has stated, "The death penalty 
serves 3 functions. First, for some crimes any lesser punishment is inadequate 
as a matter of basic justice...Second, an executed death sentence absolutely 
guarantees the killer will never kill again. A life sentence does not. There 
are many cases of people killed by murderers who were paroled, escaped, killed 
within prison or who arranged murders from within the prison...Third, I believe 
that an effective, enforced death penalty deters some murders." Opponents of 
capital punishment have attacked Scheidegger for his opinions, particularly his 
view that the death penalty does not have to be painless has gained much 
attention. Nonetheless Schiedegger stands strong with his beliefs and will 
continue to be an ally for victims.

No matter what one's stance is on the death penalty, it appears the controversy 
regarding this topic will not dissipate any time soon. In general, our legal 
system leaves a lot of questions regarding what is right and what is wrong. Is 
it proper to sentence someone to death? It is acceptable to sentence someone to 
life in prison? Should laws be so individualized by state? Like many other 
issues in politics, the answers to these questions most likely stem from 
personal beliefs and possibly one's own association with the legal system. It 
will be interesting to see how these bills play out and affect other states 
decisions to alter their own laws.

(source: Opinion, Delaney Fischer; The Miscellany News)