[Deathpenalty] death penalty news----TEXAS, GA., FLA., ALA., OHIO, NEB., USA

[Rick Halperin]

Dec. 7



TEXAS:

Hearing the voices of those bearing the brunt


MORE THAN 60 people gathered for the Campaign to End the Death Penalty's (CEDP) 
annual convention, held in Austin, Texas, in mid-November.

The CEDP was formed 20 years ago to challenge the most barbaric aspect of the 
U.S. criminal injustice system: capital punishment. It has stood out from other 
anti-death penalty and criminal justice reform organizations because it has put 
death row prisoners and their families at the center of the struggle, 
emphasizing the humanity of the victims of this system. This year's convention 
was no different.

Lawrence Foster, the 87-year-old grandfather of Kenneth Foster Jr., who faced 
down the death penalty in Texas in 2009, gave the opening remarks for the 
conference. Standing before us in his casual blazer and gray Chuck Taylors, his 
presence reminded us what is possible.

His grandson Kenny was charged under the unjust "law of parties" law in Texas, 
which makes defendants who are merely present when a crime is committed just as 
culpable as the person who committed it. So even though he was in his car with 
the windows rolled up when someone was shot and killed, Kenny was charged along 
with the shooter and given the death penalty.

In 2007, he came within 6 hours of being executed before his sentence was 
commuted to life. Lawrence Foster was a tireless fighter for his grandson the 
whole time, speaking at press conferences and demonstrations and helping to 
organize various events to mobilize the public behind the call to save Kenny. 
But the fact that Kenny remains incarcerated and--if the system has its 
way--will die in prison means that justice still has not been served.

Lily Hughes, the CEDP's national director, spoke during the opening plenary, 
discussing the state of the death penalty today and explaining why its use has 
declined and the importance of our movement connecting to the broader fight 
around criminal justice.

In a session on "2 Cases of Injustice: Stop the Execution of Rodney Reed and 
Louis Castro Perez," both Sandra Reed, Rodney's mother, and Delia Perez Myers, 
the sister of Louis Castro Perez, spoke about the fight for their loved ones 
and their continued determination to stop the execution system.

It wasn't lost on anyone in the room that both cases are in their critical last 
legal stages. Delia Perez Myers described her anger over evidence that was only 
recently discovered because prosecutors had buried it. Meanwhile, Sandra said 
she and her family remained focused on the struggle for Rodney. "We have to 
keep fighting" Sandra said.

- - - - - - - - - - - - - - - -

AFTER THE plenary sessions, there were workshops to take on issues such as "The 
Torture of Solitary," where presenter Randi Jones Hensley taped out markings on 
the floor to show the small space that prisoners are confined to when stuck in 
solitary confinement for up to 23 hours a day. "Just imagine what that's 
like--to be in that small space day after day after day. And many prisoners 
spend years of their lives there. It's an inhumane and unjust punishment."

Mark Clements, a former police torture victim from Chicago who spent 28 years 
unjustly incarcerated, also spoke at the workshop and brought home the 
deplorable conditions of today's prisons: "They treat you worse than a dog."

Student Blaine Anderson, who was attending the CEDP's convention for the first 
time. approached another presenter, journalist Liliana Segura, to say that 
"this is one of the best conferences I've ever been to, and I've attended many 
prison justice-type conferences." Anderson said she had never really thought 
about how family and loved ones are affected by the injustice system, and how 
moved she was listening to people whose lives have been forever altered.

That power probably came through most clearly when Terri Been, whose brother 
Jeff Wood is currently on Texas death row, also under the unjust "Law of 
Parties" rule, spoke from the audience. Choking back sobs and surrounded by her 
sons who took turns consoling her, Been talked about what it was like when Jeff 
came within hours of being executed in 2008:

I just couldn't do it, I just could not go in and watch them kill my 
brother--even though he wanted me there. And I just don't know what else I can 
do. I can't sleep, I'm a nervous wreck. They want to kill my brother, and I 
don't know how to protect him.

While the pain of family members like Terri Been was real and shared throughout 
the conference, so was the determination to fight.

LaKiza--the sister of Larry Jackson, who was killed over a year ago by an 
Austin police detective, who followed him and shot him in the back--spoke about 
her continued pursuit of justice. The cop, Charles Kleinert, was indicted for 
murder, but a judge threw out the indictment--that ruling is being appealed. 
"We are going to keep up the pressure because I am not about to give up," 
LaKiza said.

- - - - - - - - - - - - - - - -

THE EVENING panel discussion was probably the most uplifting event of the 
conference. Facilitated by Sandy Joy, the audience heard from two exonerated 
death row prisoners who work with Witness to Innocence--as well as Kenneth 
Hartman, who is serving a life without the possibility of parole sentence. 
Hartman called in from prison to explain how his sentence and one that 50,000 
other people endure is really just "the other death penalty, a lethal term of 
imprisonment."

You could hear a pin drop as Sabrina Butler, the first woman ever exonerated 
and freed from death row, told us what it was like to be convicted of killing 
her 9-month-old baby when she was just 18. "I was trying to help him," she 
said. "I was giving him CPR on the way to the hospital, but they said I killed 
him." She spent over 6 years on death row in Mississippi before winning her 
freedom. She implored us to keep up the fight against the racist injustice 
system.

DeWayne Brown, who goes by the nickname "Dough-B," spent 12 years wrongfully 
incarcerated, 10 of them on Texas' death row. He has been free since June of 
this year, and he talked about the difficulty in adjusting to life on the 
outside, but you would never know it by the easy way he addressed the audience.

He emphasized was desolate and isolating it is when you are on death row. "The 
quietist part of the day on Texas death row is when it's mail call. The radio's 
go down, the talk stops, and men stand by their doors, hoping the guard stops 
and gives them a letter." He urged us to keep reaching out to those still 
locked up: "Let them know you are thinking about them, and they aren't 
forgotten."

(source: Socialistworker.org)






GEORGIA----impending execution

Clemency hearing to be held for Georgia death row inmate


The Georgia Board of Pardons and Paroles plans to hear from supporters for a 
death row inmate scheduled to die this week.

A clemency hearing for Brian Keith Terrell is scheduled for Monday. Terrell is 
set for execution Tuesday at 7 p.m. He was convicted in the 1992 slaying of a 
close friend of his mother.

Terrell was on parole in June 1992 when prosecutors say he stole and forged 
checks belonging to the friend of his mother, 70-year-old John Watson. 
Prosecutors say Terrell was supposed to return the money but instead shot 
Watson multiple times and then severely beat him.

Terrell's lawyers say that their client is innocent, that no physical evidence 
connects him to the crime, and that prosecutors used false and misleading 
testimony to get the conviction.

(source: Associated Press)






FLORIDA:

Supreme Court ruling looms over Florida's death-penalty system


Florida's Legislature again finds itself under the watchful eye of the courts, 
and this time it's literally a matter of life and death.

Having endured withering criticism from state courts for a botched redrawing of 
political boundaries, lawmakers now await a verdict from the U.S. Supreme Court 
over the state's death penalty, which is facing its most significant legal 
challenge.

Florida is the only state in which a jury can recommend a death sentence by a 
bare majority of 7 of 12 jurors without also having to unanimously agree on 
aggravating circumstances to justify the ultimate punishment. A jury's decision 
is advisory, but judges usually give it great weight.

That's what happened in the case of Timothy Lee Hurst, who was convicted in the 
1998 killing of a fast-food worker during a robbery of a fried chicken 
restaurant in Pensacola. The jury recommended death on a 7-5 vote.

Hurst's lawyers, backed by the American Bar Association and 3 former Florida 
Supreme Court justices, have challenged the Florida system as unconstitutional. 
The U.S. Supreme Court heard arguments in October and is expected to rule early 
next year, possibly while the Legislature is in session.

The high court review comes as Gov. Rick Scott is accelerating the pace of 
executions, with 2 scheduled in the next 8 weeks at the Florida State Prison in 
Starke.

25 death sentences in Florida have been reversed by the courts, the most of any 
state.

The October execution of Jerry Correll, who stabbed 4 family members to death 
in 1985, was the 22nd execution since Scott took office in 2011, the most by a 
governor since Florida reinstated capital punishment in 1976.

As horrific as Correll's crimes were, the Orlando jury that convicted him was 
not unanimous in its support for a death sentence in any of the killings. 3 of 
12 jurors opposed the death penalty on 1 count, and 2 jurors did on the other 
3.

For 2 decades, legislators in both parties have tried and failed to change 
state law to require a unanimous jury recommendation of death.

The idea is being resurrected for the 2016 session, but lawmakers remain 
divided over what course of action to take.

"I think the Supreme Court is going to find problems with our death-penalty 
procedures," predicted Sen. Thad Altman, R-Rockledge, sponsor of the bill (SB 
330), who opposes capital punishment.

Altman's bill and its House counterpart would require juries to make unanimous 
findings in writing that aggravating circumstances -- such as the defendant's 
criminal record and the nature of the crime -- outweigh mitigating 
circumstances, such as the defendant's mental state.

A jury's recommendation on a death sentence is only advisory, but judges 
usually give it great weight.

The House version (HB 157) is sponsored by Rep. Jose Javier Rodriguez, D-Miami, 
who argued that even ardent death-penalty supporters should back the idea, to 
remove any ambiguity about its constitutionality.

"This is just good governance," Rodriguez said. "It seems highly irresponsible 
not to go ahead and fix it."

But neither bill has been heard in the Senate or House.

Florida prosecutors, who have political clout in the Capitol on death-penalty 
issues, oppose the changes, and the chairman of a key House committee says the 
bill will languish until justices decide the Hurst case.

"It's currently before the U.S. Supreme Court, so I don't think there's any 
urgency to act," said Rep. Carlos Trujillo, a Miami Republican and chairman of 
the House Criminal Justice Subcommittee, where Rodriguez's bill awaits a vote.

Trujillo noted that a jury's recommendation of death is not binding on the 
trial judge, who can reject a jury's recommendation.

"I think the current system works well," Trujillo said.

If the U.S. Supreme Court rules in Hurst's favor, it could unleash a torrent of 
legal challenges by death row inmates whose juries did not unanimously 
recommend execution.

Florida has had 25 death sentences reversed by the courts, the most of any 
state, according to the Death Penalty Information Center. There are 393 inmates 
on death row.

I think the Supreme Court is going to find problems with our death-penalty 
procedures.

Former Florida Supreme Court Justice Raoul Cantero Jr. has repeatedly called 
for the Legislature to change the law.

"Maintaining the status quo," Cantero wrote in the Miami Herald in 2012, "does 
not serve the cause of justice."

The state's death penalty system has repeatedly survived legal challenges, but 
Cantero, who was appointed to the court by former Gov. Jeb Bush, has been 
sounding alarms for a long time.

It has been a decade since the Florida Supreme Court, in a 2005 opinion written 
by Cantero in State vs. Steele, urged the Legislature to require unanimous 
findings of aggravating factors and "to require some unanimity in the jury's 
recommendations."

Sen. Rob Bradley, R-Fleming Island, a former prosecutor, supported Altman's 
bill last year and said he'll do so again, and that it's a matter of time 
before the courts demand a unanimous vote by jurors in death cases.

"There's nothing more serious or sacred than government taking the life of an 
individual," Bradley said. "The law is ultimately going to demand it and the 
courts are ultimately going to demand it."

(source: Bradenton Herald)






ALABAMA:

We shouldn't let our judges be juries and executioners----Some states consider 
old-fashioned executions


Executions have been on hold in Alabama since 2013 amid litigation about lethal 
injection and the chemicals used to kill. Next year, a federal judge will hear 
2 challenges to Alabama's lethal injection protocol. No matter what the judge 
decides, the question is not whether Alabama will start executing people again, 
but how and when.

Plaintiffs in both cases were required to propose feasible alternatives that 
could be used if the lethal injection protocol is ruled unconstitutional. While 
we wait for the court's decision, we ought to reconsider the legal process 
sending capital offenders to death row, and whether that journey reflects the 
values of Alabamians - including those who support capital punishment.

Among death penalty states, Alabama is 1 of only 3 allowing trial judges to 
disregard a jury's recommended sentence of life without parole. We're also the 
only state with no guidelines on how judges make decisions to "override" a jury 
recommendation.

It's rare for judges to use this power to spare a life. Instead, the 
overwhelming majority of overrides are used to sentence someone to death after 
a jury recommends life imprisonment. It takes at least 3 jurors to block a 
death sentence recommendation in Alabama - but only one judge to cancel their 
vote.

Of the states allowing this practice, Alabama is the only one where judges are 
selected in partisan elections. Nearly 1/3 of death sentences handed down in 
2008, an election year, were the result of judicial overrides, according to the 
Equal Justice Initiative.

Judicial overrides land disproportionately heavily on black defendants. 6 % of 
Alabama murders are committed by black offenders against white victims, but 31 
% of override cases involve black defendants and white victims.

Defendants facing execution can lack qualified counsel at all stages of the 
process, starting at trial. To qualify for appointment on an Alabama death 
penalty case, an attorney needs only 5 years of experience in any type of 
criminal case. The state provides no additional training, and until recently, 
it capped attorney fees at absurdly low rates.

Alabama's policies surrounding capital defense can have devastating 
consequences. In one case, the client's lawyer never told the judge that an 
expert had opined, before trial, that the victim died of natural causes. As the 
lawyer later testified, he kept this potentially life-saving development to 
himself because he was not authorized to hire the expert and was "concerned 
with receiving the trial judge's anger by asking for more money and/or a 
continuance."

Even when legal representation is demonstrably shoddy, death row inmates often 
are denied opportunities to have their cases meaningfully reviewed. Numerous 
examples exist of lawyers missing key deadlines to file paperwork or failing to 
pay critical filing fees.

In 1 case, the lawyer for a client with an intellectual disability abandoned 
him during an appeal without filing a formal notice or even telling the client. 
More than a year after the filing deadline had passed, the state notified the 
inmate that it would pursue an execution date. The inmate, whose death sentence 
was imposed via judicial override, could not even read the notification letter.

As we await a federal decision about the constitutionality of Alabama's 
execution protocol, we also must examine the process by which inmates land in 
the death chamber. Our state fails to guarantee that people accused of capital 
crimes have well-qualified counsel at capital murder trials, or any counsel for 
state post-conviction appeals. We allow elected judges to ignore recommended 
jury sentences in capital cases for any reason. And our system is plagued by 
unconscionable racial disparities.

These are not Alabama values. Those who truly value all life should demand 
sensible reforms of our state's capital punishment system. Ending Alabama's 
judicial override policy would be a good start.

(source: Opinion; Stephen Stetson, a policy analyst for Arise Citizens' Policy 
Project, a nonprofit, nonpartisan coalition of 150 congregations and 
organizations promoting public policies to improve the lives of low-income 
Alabamians---- al.com)






OHIO:

Prosecutors charging fewer with death penalty in Ohio


Fewer murder prosecutions are seeking the death penalty across Ohio, with 
prosecutors instead pushing for life sentences without parole.

The Plain Dealer reports (http://bit.ly/1TPnnah ) that the number of capital 
murder indictments filed across the state since 2010 has dropped by 77 %. 19 
have been brought this year. The state currently has 141 inmates on death row.

The newspaper reported Sunday that examination of prison records and public 
documents found that the number of murder convicts sentenced to life without 
parole has increased by 92 % since 2010.

The Washington-based Death Penalty Information Center says the national trend 
is also for fewer death penalty prosecutions.

Cuyahoga County Prosecutor Timothy McGinty says the death penalty can be a 
strong deterrent to crime, but has been undermined by the lengthy appeals 
process.

(source: Associated Press)






NEBRASKA:

Ricketts Will Wait Until 2016 Vote Before Taking Action On Death Penalty


Nebraska's Gov. Pete Ricketts says the state will stop trying to obtain lethal 
injection drugs until voters decide whether to keep capital punishment. A 
statewide vote is scheduled for November 2016.

The state has been struggling to import two drugs that are required for its 
lethal injection protocol. Gov. Ricketts said Friday that his administration 
will also wait to carry out executions. None have been scheduled.

Lawmakers abolished capital punishment in May over Ricketts' veto, but a 
statewide petition drive gathered enough signatures to suspend that decision 
and put the issue on the ballot.

Nebraska bought $54,400 in foreign-made drugs from a distributor in India, but 
the federal government has said they can't be imported legally. Ricketts is 
also talking with state officials about changing the drug protocol.

Here is his full statement:

"In November 2016, Nebraska voters will determine the future of capital 
punishment in our state at the ballot box. To give deference to the vote of the 
people, my administration will wait to carry out capital punishment sentences 
or make additional efforts to acquire drugs until the people of our state 
decide this issue.

Over the last several weeks, I have stepped up conversations with the Attorney 
General and the Corrections Director regarding a comprehensive review of the 
capital punishment protocols used in other states. My administration will 
continue to review potential protocol changes."

(souirce: WOWT news)



USA:

Why Has The Death Penalty Grown Increasingly Rare?


The last execution scheduled for this year is set for Tuesday in Georgia. But 
capital punishment has gown rare in America to the point of near extinction.

Even though polls show that 60 % of the public still supports the death 
penalty, and even though the Supreme Court has repeatedly upheld it as 
constitutional, the number of executions this year so far is almost the same as 
the number of fatalities from lightning strikes - 27 executions versus 26 
deaths by lightning.

It's an ironic statistic. When the Supreme Court briefly banned the death 
penalty in 1972, it did so, in part, because, as Justice Potter Stewart put it, 
capital punishment was being imposed so randomly and "freakishly" that it was 
like being "struck by lightning."

4 years later, the court would revive the death penalty, but with new 
limitations aimed at reserving it for the so-called worst of the worst.

Few could have imagined the trajectory the death penalty would follow in the 
years after. The number of executions soared in the 1990s - hitting a high of 
98 in 1999 and ultimately totaling more than 1,400 - but tailed off 
dramatically after 2000. With just 1 more execution set for this year, the 
current 27 that have taken place are the smallest number in almost 25 years.

While the death penalty remains the law in 31 states, that figure is 
misleading.

In many of the 31, capital punishment has largely fallen into disuse. In four 
of them, the governor has put a moratorium on the death penalty, and in 17 
there's an executive or judicial hold on executions because of botched 
procedures or problems in obtaining drugs that courts and legislatures have 
approved for lethal injection.

In fact, in the past 11 months, only 5 states conducted executions - Texas, 
Georgia, Missouri, Florida and Virginia.

Those who deal with the death penalty regularly, whether opponents or 
supporters, acknowledge the downward trend. So why is this happening?

"From the 1970s to the '90s, I think the nation essentially ceded all of its 
concerns about the death penalty's reliability to the Supreme Court, which 
seemed to be fully on the case," says death penalty researcher James Liebman, 
of Columbia Law School.

But, he observes, by the early 2000s, public perception began to change. 
"People began to realize that the Supreme Court couldn't keep the death penalty 
reliable. Dozens of innocent people were released from death row, [causing] 
jurors, prosecutors and governors [to] put the brakes" on executions.

Indeed, some prominent defenders of the death penalty have changed their minds. 
Conservative Republican Mark Earley presided over the execution of 36 men as 
attorney general of Virginia from 1998 to 2001. Earley now opposes capital 
punishment.

"We've had so many exonerations over the last 10 to 15 years - over 150," he 
says. "We can't have a system where there's a question about putting someone to 
death who may be innocent or who ... clearly didn't receive a fair trial."

Earley says that "conceptually," he can still make an argument for the death 
penalty for certain crimes, but he adds that having been involved in the 
criminal justice system throughout his life, his concern is "we get it wrong 
sometimes, and in the death penalty, we just can't get it wrong."

George Kendall, a defense lawyer who has litigated death cases for more than 40 
years, said that the swing against the death penalty is not just because of the 
156 death row inmates who have been exonerated or the advent of DNA evidence. 
It's the nature of the cases that have disintegrated on further examination.

"We're not talking about a universe of cases where there was maybe one 
detective working the case on Friday afternoons," Kendall notes. "We're talking 
about cases that were the largest priority in the office, and that's what has 
really shaken people. That cases that really look as solid as they can be ... 
fast-forward 20 years later, and some new technology comes around, and 'My God, 
we made a horrible mistake.' "

Many still think that the death penalty can be fairly and equitably imposed, 
among them, Arkansas Gov. Asa Hutchinson. He is committed to the death penalty 
as an important - if rare - punishment. He cites the Boston Marathon bombing as 
the kind of crime deserving the ultimate punishment.

"We are a nation of laws, and our Legislature authorizes the death penalty in 
certain prescribed cases that are very specific with aggravated circumstances," 
he says. "I think the average citizen recognizes that there are some crimes 
that cross the boundaries of civilized society and that recourse is 
appropriate."

Judge Alex Kozinski, of the 9th Circuit Court of Appeals, with jurisdiction 
over West Coast states, agrees. But, he observes, "there are so many 
contradictions in death penalty jurisprudence that it's going to be very 
difficult to find a way back."

The Supreme Court has "put in so many controls and conditions that it is very 
hard to administer it without a lot of expense, a lot of delay, and a lot of 
missteps," he explains. And he predicts that the expense will be the death 
penalty's downfall, that at some point, "the taxpayers are going to say, 'This 
isn't worth it.'"

Indeed, that seems to have been the view of the conservative Legislature in 
Nebraska, which earlier this year voted to abolish the death penalty.

Then too, fewer juries are handing down death sentences, in part because fewer 
prosecutors are seeking them.

Only a few localities are still enthusiastic about capital punishment. "It's 
down to counties," says death penalty lawyer Kendall.

According to data compiled from the Death Penalty Information Center, 21 
counties were responsible for all of the executions in the United States in 
2015; that's less than 1 % of all counties in the United States. And of those 
21, 5 were responsible for 40 % of all executions this year.

Things have changed even in Texas, Kendall maintains. "There are only a handful 
of prosecutors that use the death penalty in Texas any longer. A great majority 
of the prosecutors in this country have never used the death penalty and are 
never going to ... even in the South."

And yet, the numbers of prisoners waiting on death row has continued to grow. 
Because of the long-term backlog, there are now some 3,000 men and women 
awaiting execution.

That's just one of the internal contradictions and unintended consequences that 
mark the death penalty in the United States today.

For another, look at lethal injection, the execution method now used by every 
capital punishment state and the federal government. Oklahoma medical examiner 
Jay Chapman developed the method in 1977 as a more humane one than the electric 
chair, hanging, firing squad or gas chamber.

Chapman devised a 3-drug lethal injection combination, and other states and the 
federal government quickly adopted it. The lethal cocktail sometimes proved 
unreliable, however, with botched executions taking place in several states, 
including Oklahoma in 2014.

By early 2015, Oklahoma was in the U.S. Supreme Court defending a newer version 
of its cocktail from a challenge brought by death penalty opponents. The state 
devised the new version because it was becoming impossible to get one of the 
drugs that had been used previously.

At oral argument, Justice Samuel Alito put the blame for that squarely on the 
shoulders of death penalty opponents, who he suggested were putting political 
pressure on drug companies.

"Is it appropriate for the judiciary to countenance what amounts to a guerrilla 
war against the death penalty?" he asked.

Oklahoma's lawyer assured the court that the only new substitution drug in the 
state's protocol worked just as well as the original drug, and the high court 
subsequently gave the state the green light to go ahead with the new drug 
combination in its planned execution of convicted killer Richard Glossip.

But 2 hours before Glossip was to be put to death, the governor discovered that 
there had been a substitution for a second drug, and this one was not part of 
the approved protocol. Moreover, state officials also learned that the same 
mistake had been made in an execution months earlier as well. Glossip, who had 
already eaten his last meal and stripped down to his boxer shorts, was returned 
to his cell, and the governor ordered a halt to all executions well into 2016.

The Oklahoma experience is emblematic of the difficulties states are having.

First, it is increasingly difficult to get lethal injection drugs. 
Pharmaceutical companies are refusing to sell their product for use in 
executions because, as Judge Kozinski explains, it is simply inconsistent with 
their mission. "Drug companies are in the business of healing, and they are not 
comfortable - either morally or just economically - being in the business of 
killing," he says.

Kozinski, who most recently wrote the decision allowing lethal injections to go 
forward in California, views the attempt to make execution look more merciful 
as a fool's errand.

"People are just not comfortable with the idea of what execution involves: 
taking somebody out and killing them," he observes. "So if you can make it look 
like it's just like a gentle sleep, I think the perception would be, 'We're not 
doing anything violent.' But of course we are. We are killing a human being and 
this is as violent a thing as society can do."

The difficulty in obtaining drugs, and getting trained medical personnel to 
participate in executions, has led states to adopt more and more secrecy about 
the drugs they are using, where they get them, and what procedures they use. 
Hutchinson, the Arkansas governor, says it's essential to keep the source of 
the drugs confidential.

"The reason for that is the source of the drug would dry up because of pressure 
that mounts from anti-death-penalty advocates, boycotts, threats," he says.

But that very secrecy leads to more challenges from death penalty opponents, 
and more delays, while at the same time, acceptable drugs exceed their 
expiration dates. And there are other problems.

"What's happening is all these things are being done in secret and they're 
being done poorly and they're coming apart at the time of execution," says 
Columbia's professor Liebman.

Oklahoma's experience is Exhibit A in Liebman's argument.

The other internal contradiction in capital punishment is the trial and appeals 
process itself. In an effort to make death penalty cases more error-free, 
reserve it for only the worst of the worst, and make the system more uniform, 
the Supreme Court added more protections for the defendant and more appellate 
reviews.

But when that made the process longer and more complicated, there was a 
reaction in Congress, and in 1996 President Clinton signed the Antiterrorism 
and Effective Death Penalty Act with the specific aim of cutting death penalty 
delays.

But "it's had just the opposite effect," notes death penalty opponent Kendall.

At the time the law was passed, the average time from death sentence to 
execution was about 10 years, according to statistics compiled by the Death 
Penalty Information Center. Today it's close to 17 years.

Death penalty supporters like Hutchinson see these delays as anathema - "cruel 
to the victims' families," hard on the defendant, and "not a good reflection on 
our system of justice in America."

Death penalty opponents, however, see the delays as a form of providence. 
"Thank God it takes this long," says Kendall, noting that many exonerations 
have taken "more than 2 decades before their evidence of innocence could be 
marshaled and presented and shown."

He points to a particularly uncomfortable example, the case of Henry Lee 
McCollum, sentenced to death for the 1983 rape and murder of an 11-year-old 
girl in North Carolina.

In 1993, Supreme Court Justice Antonin Scalia cited McCollum as a poster child 
for why the death penalty is justified. Compared with what McCollum had done to 
the girl, Scalia wrote, "How enviable a quiet death by lethal injection!"

Last year, McCollum was exonerated and released from prison after 30 years. DNA 
from the crime scene that had never been tested was matched to a man in the 
same neighborhood who was serving a life sentence for a similar crime around 
the same time.

There is little doubt that what is driving the death penalty numbers down in 
America - both death sentences and executions - is the revelation in recent 
years that many of the people sentenced to die were innocent. Since 1973, an 
astonishing 156 death row inmates have been exonerated and released, many of 
them after decades in prison.

And it's not just a matter of DNA from blood and bodily fluids. Other science 
used in past prosecutions has also come under fire. This year the FBI conducted 
a study of 3,000 cases in which FBI lab analysts or agents testified or 
submitted hair analysis reports prior to the year 2000. The bureau found that 
in 90 % of the cases it examined, the analysts' conclusions were erroneous.

Former Virginia Attorney General Earley observes that as the science keeps 
advancing, "in every generation we can become the victims of our own hubris, 
thinking we've arrived and we can't make mistakes and the science we have today 
is the best science and the criminal justice we have is the best. 50 years down 
the road we're going to look back and see some gaping holes."

Earley says that when he presided over 36 executions in Virginia, "I still felt 
fairly confident that we could always get it right, and I just don't feel that 
way anymore."

"You know, it's one thing to sit in a Senate chamber as I did in the state 
Senate and vote for capital punishment bills," he muses. "It's another thing to 
be on what we call the death watch until midnight."

"It's a gruesome business," he adds. "It's business that even people who are 
involved with it - at the end of the day - they don't like."

In Arkansas, Hutchinson has set 8 execution dates since taking office in early 
2015. He says he has personally reviewed each case to make sure the verdict is 
justified. But because of ongoing court challenges, he has not yet had any of 
those midnight death watches.

"It's not something you desire to do when you're governor," Hutchinson says, 
adding that "the criminal justice system is important for our state. It's 
important to the nation, and it's the job of the governor to carry out the 
sentence of the jury."

Death penalty opponents seem to believe that the Supreme Court will, sometime 
in the next decade or so, strike down capital punishment as a violation of the 
Constitution's ban on cruel and unusual punishment. But there is considerable 
disagreement among abolitionists as to whether it's wise to push their agenda 
now.

"It's no longer an 'if.' It's a 'when,' " says ACLU Legal Director Steven 
Shapiro.

But the future is not yet so clear. Justice Scalia, a staunch defender of the 
death penalty, has said it "wouldn't surprise" him if the court were to abolish 
it. And In June, Justice Stephen Breyer called for a reconsideration of whether 
capital punishment is so rarely and irrationally imposed as to be 
unconstitutional. But only one other justice, Ruth Bader Ginsburg, joined him.

So, for now, there is no sign that a majority of the justices are prepared to 
abandon the death penalty entirely if states can overcome the inherent 
difficulties of imposing it fairly and properly.

(source: Nina Totenberg, npr.org)

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

Ask Us Anything About the Death Penalty ---- Join us for a chat on Tuesday at 
12:30 p.m. about the state of the death penalty in 2015, and what's to come in 
2016


Tuesday evening will likely mark the 28th and final execution of 2015. The 
yearly total has been dropping since a high of 98 in 1999. Taking into account 
the high cost of death penalty trials, the rise of life-without-parole 
sentences, and the emergence of conservative opposition to capital punishment, 
many observers believe the death penalty is in decline.

But below the surface statistics, 2015 was a particularly rowdy year in the 
legal and political life of capital punishment. Some state officials and 
activists pushed back against the trend of fewer executions and death 
sentences, setting up battles that will surround the death penalty in 2016.

To learn more, join Gabriel Dance, managing editor of The Marshall Project, The 
Intercept's Liliana Segura and me for a Reddit chat on Tuesday, Dec. 8, at 
12:30 p.m. ET. We will be taking questions on the death penalty and lethal 
injection in 2015 and onward into 2016. We???ll update this post with a link to 
the chat when it's live.

Gearing up for the chat, here are some major takeaways from 2015 to consider:

1. Executions are down.

By year's end, the number of executions is on track to stay below 30, down from 
35 last year and less than 1/3 of the historic high of 98 executions in 1999. 
One major reason for this drop is the struggle faced by many state prison 
agencies in obtaining lethal injection drugs.

2. New death sentences are also dropping.

Nebraska abolished the death penalty entirely this year. Texas sent 3 men to 
death row, down from 11 in 2014. According to the Cleveland Plain Dealer, Ohio 
prosecutors chose to pursue capital murder charges in 19 cases this year, a 
drop of 77% since 2010.

3. Pushing against these trends, a pro-death penalty movement began to coalesce 
this year.

After the Nebraska legislature voted to abolish the punishment, a group began 
gathering signatures over the summer to support a public vote to potentially 
bring it back. In the fall, California district attorneys announced a campaign 
to speed up appeals and save the death penalty in their state. In Louisiana, 
Caddo Parish prosecutor Dale Cox gained notoriety as a death penalty spokesman 
after he announced that his state should "kill more people" (In November, he 
was voted out of office.)

4. Many prison agencies pushed to make their death chambers more active.

With executions dwindling, some prison agencies continued to pursue new lethal 
injection drugs - including attempts to get drugs from overseas - and some were 
successful, rebooting their execution chambers and bucking the national 
decline. Missouri carried out 6, making the state the nation's leader in 
executions per capita for the 2nd straight year. Georgia carried out 4 
executions, and if the state carries out a 5th - scheduled for Tuesday - it 
will be the highest number since 1987.

5. And the Supreme Court blessed these efforts to find new drugs.

In June, they decided the case Glossip v. Gross, one of the highest-profile 
capital cases in the last several years. The court ruled that the drug 
midazolam - which had been implicated in several botched executions - did not 
violate the constitutional ban on cruel and unusual punishment. At oral 
argument, Justice Samuel Alito accused defense attorneys of mounting a 
"guerilla war against the death penalty" by blocking state efforts to get 
execution drugs. Once midazolam was cleared, Florida used the drug in an 
October execution.

6. Outside the Supreme Court, the year saw a striking level of ambivalence at 
the highest levels of national politics.

In an interview with The Marshall Project, President Obama called the death 
penalty "deeply troubling," while Republican presidential candidate Jeb Bush - 
who, as governor of Florida, oversaw 21 executions - felt comfortable telling a 
reporter, "It's hard for me, as a human being, to sign the death warrant."

7. Anti-death penalty lawyers seized on this ambivalence.

Encouraged by a dissent in the Glossip case by Justice Stephen Breyer, they 
began pushing the Supreme Court to consider whether the death penalty is "cruel 
and unusual punishment" and violates the 8th Amendment.

Going into 2016, we know those petitions will continue. We don't know, however, 
if the nation's highest court will take on the issue.

(source: Maruice Chammah, themarshallproject.org)