[Deathpenalty] death penalty news----N.C., LA., OHIO, USA

[Rick Halperin]

June 29



NORTH CAROLINA:

Justices allow new hearings in North Carolina capital cases


The Supreme Court has left in place lower court rulings ordering hearings over 
jurors in 2 North Carolina death penalty trials who reached beyond the jury 
room for biblical references to help their deliberations.

The justices on Monday rejected North Carolina's appeal of the 2 rulings by the 
federal appeals court in Richmond, Virginia.

In 1 case, a juror called her father in search of a biblical verse to help her 
decide between life and death for defendant Jason Wayne Hurst, who was 
sentenced to death for the 2002 shooting death of an acquaintance in Asheboro, 
North Carolina. The father pointed her to a verse containing the phrase "an eye 
for an eye."

The appeals court ordered hearings to determine if jurors were improperly 
influenced.

(source: Associated Press)






LOUISIANA:

Freed death row inmate died hours before supreme court cited his case -- Glenn 
Ford, 65, died of lung cancer on Monday hours before judgment; Dissenting 
justice said Ford's case showed need for full death penalty review


A former death row inmate in Louisiana died on Monday, hours before his 
exoneration was cited by the US supreme court as a reason for caution in 
carrying out death sentences.

Glenn Ford was released from Angola prison in Louisiana in March 2014 after 
serving 30 years on death row for a 1984 murder, a conviction which in 2013 
prosecutors conceded they could no longer support.

He died of lung cancer on Monday at the age of 65, his supporters announced to 
Nola.com, "surrounded by friends, loved ones and family."

Hours later, the supreme court upheld the use of a controversial lethal 
injection drug, allowing Oklahoma to resume executions for the 1st time since 
January.

In a dissenting opinion to that ruling, justice Steven Breyer cited 3 cases of 
death row inmates who were proven not guilty in the last year - Ford, Henry Lee 
McCollum and Anthony Ray Hinton - as he urged the court to take up a full 
review of the death penalty.

"In Glenn Ford's case, the prosecutor admitted that he was partly responsible 
for Ford's wrongful conviction, issuing a public apology to Ford and explaining 
that, at the time of Ford's conviction, he was 'not as interested in justice as 
[he] was in winning,'" Breyer wrote.

"All 3 of these men spent 30 years on death row before being exonerated," 
Breyer wrote, citing research that showed courts and governors are more likely 
to exonerate inmates when a death sentence is at play.

"To some degree, it must be because the law that governs capital cases is more 
complex. To some degree, it must reflect the fact that courts scrutinize 
capital cases more closely. But, to some degree, it likely also reflects a 
greater likelihood of an initial wrongful conviction."

The Times-Picayune on Monday said Ford's final 15 months "were spent outside 
prison walls, but not without challenges", citing a state petition to deny him 
state-mandated compensation for his wrongful conviction and imprisonment.

The prosecutor behind Ford's conviction denounced the state's appeal and 
apologized to him earlier this year.

"I apologize to Glenn Ford for all the misery I have caused him and his 
family," AM Stroud III wrote in a letter published in the Times of Shreveport.

(source: The Guardian)

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

Orleans Parish District Attorney Leon Cannizzaro to seek death penalty for 
accused cop killer Travis Boys


Orleans Parish District Attorney Leon Cannizzaro is seeking the death penalty 
for Travis Boys, the man accused of killing New Orleans Police Department 
Officer Daryle Holloway with a single shot in a police vehicle on June 20.

Boys was indicted Monday for 1st degree murder in the death of Holloway, a 
22-year veteran of the force who was buried on Saturday. Holloway was killed 
while transporting Boys to central lockup after a domestic shooting incident.

Cannizzaro has rarely sought the death penalty since taking office in 2008, and 
a parish jury has imposed the sentence only once during his tenure. But the 
fact that Holloway was a police officer meant that his death automatically 
qualified as a 1st-degree murder and there would be widespread pressure for 
Cannizzaro to seek capital punishment.

A judge also ordered Monday that Boys be held without bond.

(source: The New Orleans Advocate)






OHIO----new death sentence

Shawn Ford sentenced to death after apologizing for 2013 slaying of New 
Franklin couple


In an emotional statement that lasted about 5 minutes, convicted murderer Shawn 
Eric Ford Jr. apologized Monday morning for the 2013 double homicide of a 
prominent New Franklin couple in their home.

Ford said he "messed up" and that the murders were a "misguided" act of love 
directed at his former girlfriend, Chelsea Schobert, the daughter of the 
victims, Jeffrey and Margaret Schobert.

Summit County Common Pleas Judge Tom Parker, shortly after Ford's remarks, said 
he was accepting the jury's recommendation, and he sentenced Ford to death.

Last week, Parker had ruled that Ford failed to prove that his claims of mental 
disability should spare him from facing capital punishment.

Ford, 20, was convicted of multiple counts of aggravated murder in October, 
along with an array of death penalty specifications, in the April 2013 
bludgeoning deaths of Jeffrey Schobert, a prominent area attorney, and his 
wife, who commonly was known as Peg, at their Portage Lakes home.

Parker had 2 options: accept the jury's previous recommendation that Ford 
should be put to death for his crimes, or order him to spend the rest of his 
life in a state penitentiary.

Ford's lawyers had argued that his low IQ barred him from receiving a death 
sentence. Their position was based on a 2002 U.S. Supreme Court decision that 
executing an intellectually disabled defendant is constitutionally prohibited 
as cruel and unusual punishment.

Ford killed the Schoberts in their master bedroom - attacking both in a 
late-night ambush with a sledgehammer, prosecutors said - after they kept him 
from seeing Chelsea while she was recovering in the hospital.

She had suffered head injuries in an alleged attack by Ford only days before 
the New Franklin slayings.

(source: Beacon Journal)






USA:

Justices Breyer and Ginsburg: 'It is highly likely' the death penalty is 
unconstitutional


The Supreme Court's decision on Monday to uphold a controversial lethal 
injection procedure used by Oklahoma was reached because the 5 justices in the 
majority were not swayed by arguments that a particular sedative caused 
executions that could be deemed cruel and unusual punishment.

But in 1 of the dissents, Justice Stephen G. Breyer said he disagreed with the 
decision before moving on to a much larger question: Is the death penalty 
itself unconstitutional?

"I believe it highly likely that the death penalty violates the Eighth 
Amendment," Breyer wrote. "At the very least, the Court should call for full 
briefing on the basic question."

In a 41-page dissent - longer than the majority opinion authored by Justice 
Samuel A. Alito Jr. - Breyer, who was joined by Justice Ruth Bader Ginsburg, 
wrote that country's use of the death penalty has dramatically changed since 
the court upheld capital punishment in 1976.

He went on to say that these changes, combined with his 2 decades on the high 
court, have convinced him that the death penalty likely violates the Eighth 
Amendment prohibition against cruel and unusual punishment.

"In 1976, the Court thought that the constitutional infirmities in the death 
penalty could be healed; the Court in effect delegated significant 
responsibility to the States to develop procedures that would protect against 
those constitutional problems," Breyer wrote. "Almost 40 years of studies, 
surveys, and experience strongly indicate, however, that this effort has 
failed."

In his dissent, Breyer pointed to several issues that he said create 
constitutional problems with the death penalty. These problems, which are 
familiar to anyone who follows the death penalty in the United States in recent 
years, combine to show "a serious problem of reliability," Breyer wrote.

Meanwhile, in response to Breyer's dissent, Justices Antonin Scalia and 
Clarence Thomas each filed an opinion dismissing these arguments, both 
criticizing him for suggesting that the judiciary - rather than the people - 
should abolish the death penalty. Scalia, who is known for his fiery opinions, 
wrote that Breyer "does not just reject the death penalty, he rejects the 
Enlightenment."

Breyer, in his dissent, highlighted cases of innocent people who have been 
sentenced to death over the years, including men in Louisiana and North 
Carolina who spent three decades on death row before being released. (Most 
Americans - including big majorities of those who favor and oppose the death 
penalty - agree that innocent people can be put to death under the current 
system.) In addition, Breyer pointed to the FBI's admission that its forensic 
examiners gave flawed testimony that resulted in more than 30 death sentences.

But Breyer also raised another concern that has been discussed before, most 
notably in a federal judge's order last year - that of a system functioning 
arbitrarily. He cited studies that have found differences in how death 
sentences are handed down depending on the race of the victims and the accused, 
and he noted that he has found, after looking at thousands of death penalty 
cases, "discrepancies for which I can find no rational explanation."

"The imposition and implementation of the death penalty seems capricious, 
random, indeed, arbitrary," he wrote. "From a defendant's perspective, to 
receive that sentence, and certainly to find it implemented, is the equivalent 
of being struck by lightning."

He also pointed to another reality for people sentenced to death - what he 
termed the "unconscionably long delays that undermine the death penalty's 
penological purpose." People sent to death row are unlikely to be executed in a 
timely manner, if at all, owing to a combination of appeals, problems with 
carrying out executions and exonerations.

Death-row inmates across the country have spent an average of 14 years there, 
while the number of executions has been steadily dropping. The death-row 
population has been shrinking, but not because of executions; rather, inmates 
are leaving death row because courts are overturning their sentences or 
convictions, or they are dying of other causes. Indeed, Breyer said that these 
long stints are themselves troubling, because the inmates are generally in 
isolation, and solitary confinement has been found to cause catastrophic 
psychological effects.

As an example of the practice's declining usage, Breyer noted the recent news 
that Nebraska just became the 19th state to formally abolish the death penalty 
(in addition to other states where executions are on hold or have not taken 
place for years). He also said that the "unusual" part of cruel and unusual is 
borne by the increasing rarity of executions: The number of inmates put to 
death each year continues to shrink, dropping last year to the lowest number in 
2 decades, and these executions are taking place in an increasingly small pool 
of places. Last year, 4 out of 5 executions occurred in just t3 states (Texas, 
Missouri and Florida). Rare executions, and capital sentences that are never 
implemented at all, Breyer wrote, undermine the concept of a death sentence as 
a means of deterrence or retribution.

Still, Breyer acknowledged the dilemma posed by a fair system - one that has 
courts reviewing death sentences at every level - because that system will also 
carry with it inevitable delays. This is what he said ultimately backs up the 
idea that the death penalty violates the Constitution.

"In this world, or at least in this Nation, we can have a death penalty that at 
least arguably serves legitimate penological purposes or we can have a 
procedural system that at least arguably seeks reliability and fairness in the 
death penalty's application," he wrote. "We cannot have both."

Breyer said he understands the argument allowing for states to make their 
decisions. But, he wrote, the last four decades have shown that responses from 
the states have not worked.

(source: Washington Post)

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

In a Brave, Powerful Dissent, Justice Breyer Calls for the Abolition of the 
Death Penalty


Justice Stephen Breyer took a brave, powerful stand against the machinery of 
death on Monday, writing that, to his mind, "the death penalty, in and of 
itself, now likely constitutes a legally prohibited 'cruel and unusual 
punishmen[t].'" Breyer notes that his "20 years of experience on the court," 
during which he has been forced to decide whether myriad inmates may live or 
die, led him to this conclusion.

In a courageous 41-page dissent from a pro-death penalty ruling joined only by 
Justice Ruth Bader Ginsburg, Breyer explains that the startlingly high number 
of exonerated death row inmates suggests that capital punishment is unreliable 
and error-prone - in the words of the Eighth Amendment, "cruel." (In a stunning 
retort to Justice Antonin Scalia, Breyer discusses the exoneration of Henry Lee 
McCollum - "Scalia's favorite murderer.") The death penalty, Breyer writes, is 
also unconstitutionally arbitrary, dispensed randomly, rarely, and 
unpredictably. This infrequency renders the punishment unconstitutionally 
"unusual," as well.

Breyer also notes a number of troubling factors in death penalty sentencing. 
Race may play a role, he writes (correctly), as do judicial elections - judges 
may condemn convicts to die so that voters will perceive them as tough on 
crime. Breyer then declares:

The imposition and implementation of the death penalty seems capricious, 
random, indeed, arbitrary. From a defendant's perspective, to receive that 
sentence, and certainly to find it implemented, is the equivalent of being 
struck by lightning. How then can we reconcile the death penalty with the 
demands of a Constitution that first and foremost insists upon a rule of law?

Predictably, Breyer's dissent sends Scalia and Clarence Thomas into fits of 
rage. Scalia asserts that Breyer "rejects the Enlightenment" and "takes on the 
role of the abolitionists in this long-running drama." Thomas details the 
grisly murders with which several death row inmates were charged, as if to say 
that, no matter how painful their punishment, they'll get what they deserve.

But neither justice really contends with the moral passion and legal logic that 
Breyer carefully lays out in his opinion. Like Justice Harry Blackmun before 
him, Breyer has decided that the Constitution can no longer condone America's 
peculiar practice of state-sanctioned murder. The machinery of death may grind 
on. But Justice Breyer dissents.

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

Justice Scalia: The death penalty deters crime. Experts: No, it doesn't.


In upholding Oklahoma's use of a controversial lethal injection drug on Monday, 
Justice Antonin Scalia wrote that it seems "very likely" to him that the death 
penalty deters crime, and he cherry-picked several studies in his defense. But 
what seems "very likely" to Scalia apparently doesn't seem so likely to 
criminologists and other experts who have studied this issue.

The Death Penalty Information Center, one of the top nonpartisan sources for 
information about capital punishment, summarized a 2009 survey in which a large 
majority of criminologists said the death penalty isn't proven to deter 
homicides:

88 % of the country's top criminologists do not believe the death penalty acts 
as a deterrent to homicide, according to a new study published in the Journal 
of Criminal Law and Criminology and authored by Professor Michael Radelet, 
Chair of the Department of Sociology at the University of Colorado-Boulder, and 
Traci Lacock, also at Boulder.

Similarly, 87% of the expert criminologists believe that abolition of the death 
penalty would not have any significant effect on murder rates. In addition, 75% 
of the respondents agree that "debates about the death penalty distract 
Congress and state legislatures from focusing on real solutions to crime 
problems."

The survey relied on questionnaires completed by the most pre-eminent 
criminologists in the country, including Fellows in the American Society of 
Criminology; winners of the American Society of Criminology's prestigious 
Southerland Award; and recent presidents of the American Society of 
Criminology. Respondents were not asked for their personal opinion about the 
death penalty, but instead to answer on the basis of their understandings of 
the empirical research.

Part of the issue here is that the research on the death penalty's deterrent 
effect - including the studies that Scalia cited - is, frankly, terrible, 
because it's so difficult to pull out other mitigating factors that might 
contribute to crime. We know, for example, that states without the death 
penalty tend to have lower murder rates than those with the death penalty. But 
how much of that is related to the death penalty, or the numerous other 
contributors to crime and homicide rates, such as socioeconomic issues or even 
the amount of lead in gasoline?

Still, the overall body of research suggests there is no deterrent effect. A 
February 2015 review of the research by the Brennan Center for Justice found no 
evidence that the death penalty had an impact on crime in the 1990s and 2000s, 
and it concluded that the studies that suggested there was a deterrent effect 
were methodologically weak.

Why doesn't the death penalty pose a deterrent effect? One would think that a 
would-be killer would at least consider the possibility that he may be 
executed. But the Brennan Center for Justice report suggested that this 
misunderstand the thinking of most killers:

[I]t is debatable whether an individual even engages in such objective 
calculations before committing a crime. Much psychological and sociological 
research suggests that many criminal acts are crimes of passion or committed in 
a heated moment based only on immediate circumstances, and thus potential 
offenders may not consider or weigh longer-term possibilities of punishment and 
capture, including the possibility of capital punishment.

So Scalia may think it's "very likely" that the death penalty deters crime, and 
he may be able to find a few studies that suggest as much. But the 
criminologists and experts who have looked at the overall body of evidence have 
come to starkly different conclusions.

(source for both: vox.com)

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

What The Supreme Court Just Did To The Death Penalty


Glossip v. Gross is a crushing blow to opponents of the death penalty. The 
narrow issue in this case is whether a particular drug that Oklahoma wants to 
use in executions sufficiently dulls inmates pain that the intense suffering 
caused by the remainder of the state's lethal drug cocktail does not amount to 
cruel and unusual punishment. Yet the Court's 5-4 decision goes well beyond 
this narrow question. It effectively enlists death row inmates' attorneys to 
become agents of their clients' demise. And it elevates the death penalty to a 
kind of super-legal status that renders it impervious to many constitutional 
challenges.

Glossip opens with the 8 most frightening words a liberal will ever read: 
"JUSTICE ALITO delivered the opinion of the Court." In characteristic fashion, 
Alito uses his opinion to pry open gaps in the Court's precedents that lead to 
extraordinarily conservative outcomes. By the time he is done, some of the most 
important victories for death penalty opponents in the last several years have 
been transformed into defeats.

At oral arguments, Alito was openly contemptuous of the work of death penalty 
opponents - many of whom work for companies that manufacture drugs that various 
states would like to use in their execution protocols. The reason why Oklahoma 
was in court seeking the ability to use a painkiller of questionable 
reliability in its executions is because many drug companies have refused to 
sell their products to states if those states intend to use them to kill a 
human being. During arguments in this case, Alito labeled this effort a 
"guerrilla war against the death penalty."

As a legal matter, it is not at all clear why the actions of drug companies 
have any relevance whatsoever to a constitutional challenge to the death 
penalty. Drug companies are private actors, not government actors, so they are 
free to sell or not to sell whatever they choose so long as they comply with 
the law. Alito's opinion, however, effectively punishes these drug companies 
for their opposition to the death penalty by holding that, should the companies 
continue to make their more reliable drug unavailable, then executions will 
just move forward with less reliable painkillers.

They key paragraph in Alito's opinion is a declaration that, no matter what 
happens, there must always be a way to execute inmates:

Our decisions in this area have been animated in part by the recognition that 
because it is settled that capital punishment is constitutional, "[i]t 
necessarily follows that there must be a [constitutional] means of carrying it 
out." And because some risk of pain is inherent in any method of execution, we 
have held that the Constitution does not require the avoidance of all risk of 
pain. After all, while most humans wish to die a painless death, many do not 
have that good fortune. Holding that the Eighth Amendment demands the 
elimination of essentially all risk of pain would effectively outlaw the death 
penalty altogether.

Ordinarily, lawsuits claiming that a particular method of punishment is 
unconstitutionally cruel and unusual limit their focus to a narrow question - 
whether the specific method used by the state is cruel and unusual or not. With 
this one paragraph, Alito turns that analysis on its head. Now, there must 
always be a method of execution available to the state. And if the only method 
available inflicts cruel and unusual amounts of pain on an inmate, that's not 
the Court's problem.

As a final blow to anti-death penalty advocates, Alito effectively drafts them 
into the task of determining how their clients should be killed. Alito reaches 
his conclusion, at least in part, "based on petitioners' failure to satisfy 
their burden of establishing that any risk of harm was substantial when 
compared to a known and available alternative method of execution." In other 
words, a lawyer challenging a particular method of execution must name another, 
alternative method that can be used instead. Needless to say, this places 
attorneys who have an obligation to represent the interests of their client in 
a serious ethical bind.

Rejecting Alito's conclusion that if all methods of execution are 
unconstitutional then some method must be allowed, Justice Stephen Breyer 
writes in dissent that the opposite is true. "[R]ather than try to patch up the 
death penalty's legal wounds one at a time," Breyer writes, "I would ask for 
full briefing on a more basic question: whether the death penalty violates the 
Constitution."

(soruce: thinkprogress.org)

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

SCOTUS Deeply Divided In Fractured Rulings on Death Penalty----The Court upheld 
a controversial execution method, but 2 justices said it's time to review 
whether the death penalty is unconstitutional.


The Supreme Court upheld a controversial execution method Friday, even as 2 
justices said it's time to reconsider whether the death penalty is 
unconstitutional in the first place.

The justices were sharply and sometimes personally at odds in a 5-4 ruling that 
ultimately upheld the use of a particular lethal-injection cocktail. But one 
dissenter said the Court's ruling opened the door to all sorts of "barbarous" 
punishments, while 2 of the Court's liberal members said it's time to revisit 
the basic question of whether capital punishment is even constitutional in the 
first place.

4 justices - 2 from each side - read parts of their decisions aloud from the 
bench on Friday, a highly unusual development that only underscored the deep 
divisions on the Court. (Even in high-profile, highly charged issues like 
same-sex marriage, the maximum is usually 2 oral statements.)

Justices Stephen Breyer and Ruth Bader Ginsburg said not only that they 
disagreed with the Court's decision Friday, but that they would go a step 
further and reopen the question of whether the death penalty itself violates 
the Eighth Amendment's ban on "cruel and unusual punishment."

Although the Court has upheld the death penalty before, times have changed, 
Breyer argued. Justice Antonin Scalia wrote a separate, concurring opinion 
largely to fight with Breyer.

"The response is ... familiar: A vocal minority of the Court, waving over their 
heads a ream of the most recent abolitionist studies (a superabundant genre) as 
though they have discovered the lost folios of Shakespeare, insist that now, at 
long last, the death penalty must be abolished for good," Scalia wrote. "Mind 
you, not once in the history of the American Republic has this Court ever 
suggested the death penalty is categorically impermissible."

Ostensibly, Friday's case was about the use of the drug midazolam. Midazolam is 
used as the 1st drug in a 3-drug cocktail for some lethal injections. It's an 
anesthetic, designed to put inmates into a deep coma-like state so they can't 
feel the pain of the drugs that actually kill them.

But midazolam does not always work.

When Oklahoma first used midazolam in an execution, the inmate, Clayton 
Lockett, was declared unconscious after receiving a dose of midazolam. But a 
few minutes later, after he had received the 2nd drug, which causes paralysis, 
he woke up, began to thrash around, and even said, "The drugs aren't working." 
Still, the Court said Friday, the use of the drug is not unconstitutional.

(source: National Journal)

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

Justice Breyer perfectly captured the major problem with the death penalty


The Supreme Court on Monday allowed the use of a controversial lethal injection 
drug in America, and Justice Stephen Breyer wrote a dissent that captured his 
major problem with the death penalty.

>From his dissent:

Today's administration of the death penalty involves 3 fundamental 
constitutional defects: (1) serious unreliability, (2) arbitrariness in 
application, and 3) unconscionably long delays that undermine the death 
penalty's penological purpose. Perhaps as a result, (4) most places within the 
United States have abandoned its use.

I shall describe each of these considerations, emphasising changes that have 
occurred during the past 4 decades. For it is these changes, taken together 
with my own 20 years of experience on this Court, that lead me to believe that 
the death penalty, in and of itself, now likely constitutes a legally 
prohibited 'cruel and unusual punishment.'

3 Oklahoma inmates brought the case and had argued that the drug midazolam 
violated the Constitution's bar on cruel and unusual punishment. However, the 
court's conservative justices ruled on Monday that the inmates failed to show 
they'd be able to prove those claims.

"[T]he prisoners failed to identify a known and available alternative method of 
execution that entails a lesser risk of pain, a requirement of all Eighth 
Amendment method-of-execution claims," Justice Samuel Alito wrote in his 
majority opinion.

(source: Business Insider)

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

Scalia says Breyer and Ginsburg's death penalty dissent "rejects the 
Enlightenment"


Justice Antonin Scalia got the ruling he wanted in Glossip v. Gross, the 
Supreme Court's death penalty decision that came down Monday - but he still 
felt the need to express his views in his characteristic strongly-worded 
rhetoric, this time aimed at 2 liberals on the court.

What annoyed Scalia so much wasn't the main dissent in the case, signed onto by 
all 4 of the court's liberals, but a separate dissent written by Justice 
Stephen Breyer and signed onto by Justice Ruth Bader Ginsburg. The 2 called on 
the Court to reassess whether the death penalty was constitutional at all, and 
said they had both come to believe that it "now likely constitutes a legally 
prohibited 'cruel and unusual punishment.'"

So Scalia wrote a separate concurrence, joined by Justice Clarence Thomas, 
which said not only that Breyer was wrong, but that he was rejecting the entire 
Enlightenment:

Scalia felt strongly enough that he decided to read his concurrence from the 
bench, which lawyer Tejinder Singh, a contributor to SCOTUSblog, wrote was 
"exceedingly rare" for a concurring opinion (rather than a majority opinion or 
a dissent).

(source: vox.com)

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

The 20 Best Lines from the Supreme Court Dissent Calling to End the Death 
Penalty


Enough is enough, says Justice Stephen Breyer.

The case before the Supreme Court concerned a specific question: was a certain 
sort of capital punishment via lethal injection constitutional? In a decision 
issued Monday morning, the 4 conservative justices plus swing-vote Justice 
Anthony Kennedy said yes, and Justice Sonia Sotomayor wrote a dissenting 
opinion for the court's liberals taking the opposite position. But in a 
stinging dissent of his own, Justice Stephen Breyer, who was joined by Justice 
Ruth Bader Ginsburg, went much further: he called for abolishing the death 
penalty, contending that capital punishment, as it is currently practiced, 
violates the Constitution. His opinion was methodically argued and chockfull of 
research (on exonerations, various disparities in the application of the death 
sentence, and more). Breyer, who in 2008 sided with the court majority in 
upholding the use of lethal injections in Kentucky, noted that his own 
experience overseeing capital punishment cases has led him to a forceful and 
passionate position: the death penalty must go.

Here are the best passages from his opinion.

In 1976, the Court thought that the constitutional infirmities in the death 
penalty could be healed; the Court in effect delegated significant 
responsibility to the States to develop procedures that would protect against 
those constitutional problems. Almost 40 years of studies, surveys, and 
experience strongly indicate, however, that this effort has failed. Today's 
administration of the death penalty involves 3 fundamental constitutional 
defects: (1) serious unreliability, (2) arbitrariness in application, and (3) 
unconscionably long delays that undermine the death penalty's penological 
purpose. Perhaps as a result, (4) most places within the United States have 
abandoned its use.

I shall describe each of these considerations, emphasiz???ing changes that have 
occurred during the past 4 decades. For it is those changes, taken together 
with my own 20 years of experience on this Court, that lead me to believe that 
the death penalty, in and of itself, now likely constitutes a legally 
prohibited "cruel and unusual punishmen[t]." U. S. Const., Amdt. 8.

* * *

[R]esearchers have found convincing evidence that, in the past 3 decades, 
innocent people have been executed.

* * *

[T]he evidence that the death penalty has been wrongly imposed (whether or not 
it was carried out), is striking. As of 2002, this Court used the word 
"disturbing" to describe the number of instances in which individuals had been 
sentenced to death but later exonerated. At that time, there was evidence of 
approximately 60 exonerations in capital cases....Since 2002, the number of 
exonerations in capital cases has risen to 115......Last year, in 2014, 6 death 
row inmates were exonerated based on actual innocence. All had been imprisoned 
for more than 30 years (and one for almost 40 years) at the time of their 
exonerations.

* * *

[T]he crimes at issue in capital cases are typically horrendous murders, and 
thus accompanied by intense community pressure on police, prosecutors, and 
jurors to secure a conviction. This pressure creates a greater likelihood of 
convicting the wrong person.

* * *

[R]esearchers estimate that about 4% of those sentenced to death are actually 
innocent.

* * *

[B]etween 1973 and 1995, courts identified prejudicial errors in 68% of the 
capital cases before them.

* * *

This research and these figures are likely controversial. Full briefing would 
allow us to scrutinize them with more care. But, at a minimum, they suggest a 
serious problem of reliability. They suggest that there are too many instances 
in which courts sentence defendants to death without complying with the 
necessary procedures; and they suggest that, in a significant number of cases, 
the death sentence is imposed on a person who did not commit the 
crime....Unlike 40 years ago, we now have plausible evidence of unreliability 
that (perhaps due to DNA evidence) is stronger than the evidence we had before. 
In sum, there is significantly more research-based evidence today indicating 
that courts sentence to death individuals who may well be actually innocent or 
whose convictions (in the law's view) do not warrant the death penalty's 
application.

* * *

Thus, whether one looks at research indicating that irrelevant or improper 
factors - such as race, gender, local geography, and resources - do 
significantly determine who receives the death penalty, or whether one looks at 
research indicating that proper factors - such as "egregiousness" - do not 
determine who receives the death penalty, the legal conclusion must be the 
same: The research strongly suggests that the death penalty is imposed 
arbitrarily.

* * *

The studies bear out my own view, reached after considering thousands of death 
penalty cases and last-minute petitions over the course of more than 20 years. 
I see discrepancies for which I can find no rational explanations...Why does 1 
defendant who committed a single-victim murder receive the death penalty (due 
to aggravators of a prior felony conviction and an after-the-fact robbery), 
while another defendant does not, despite having kidnapped, raped, and murdered 
a young mother while leaving her infant baby to die at the scene of the 
crime...Why does 1 defendant who committed a single-victim murder receive the 
death penalty (due to aggravators of a prior felony conviction and acting 
recklessly with a gun), while another defendant does not, despite having 
committed a "triple murder" by killing a young man and his pregnant wife?... 
For that matter, why does 1 defendant who participated in a single-victim 
murder-for-hire scheme (plus an after-the??? fact robbery) receive the death 
penalty, while another defendant does not, despite having stabbed his wife 60 
times and killed his 6-year-old daughter and 3-year-old son while they 
slept?... In each instance, the sentences compared were imposed in the same 
State at about the same time.

The question raised by these examples (and the many more I could give but do 
not), as well as by the research to which I have referred, is the same question 
Justice Stewart, Justice Powell, and others raised over the course of several 
decades: The imposition and implementation of the death penalty seems 
capricious, random, indeed, arbitrary. From a defendant's perspective, to 
receive that sentence, and certainly to find it implemented, is the equivalent 
of being struck by lightning. How then can we reconcile the death penalty with 
the demands of a Constitution that first and foremost insists upon a rule of 
law?

* * *

[N]early all death penalty States keep death row inmates in isolation for 22 or 
more hours per day....This occurs even though the ABA has suggested that death 
row inmates be housed in conditions similar to the general population, and the 
United Nations Special Rapporteur on Torture has called for a global ban on 
solitary confinement longer than 15 days... And it is well documented that such 
prolonged solitary confinement produces numerous deleterious harms. See, e.g., 
Haney, Mental Health Issues in Long-Term Solitary and "Supermax" Confinement, 
49 Crime & Delinquency 124, 130 (2003) (cataloging studies finding that 
solitary confinement can cause prisoners to experience "anxiety, panic, rage, 
loss of control, paranoia, hallucinations, and self-mutilations," among many 
other symptoms)

* * *

The dehumanizing effect of solitary confinement is aggravated by uncertainty as 
to whether a death sentence will in fact be carried out. In 1890, this Court 
recognized that, "when a prisoner sentenced by a court to death is confined in 
the penitentiary awaiting the execution of the sentence, one of the most 
horrible feelings to which he can be subjected during that time is the 
uncertainty during the whole of it."... The Court was there describing a delay 
of a mere 4 weeks. In the past century and a quarter, little has changed in 
this respect - except for duration. Today we must describe delays measured, not 
in weeks, but in decades.

* * *

The 2nd constitutional difficulty resulting from lengthy delays is that those 
delays undermine the death penalty's penological rationale, perhaps irreparably 
so. The rationale for capital punishment, as for any punishment, classically 
rests upon society's need to secure deterrence, incapacitation, retribution, or 
rehabilitation. Capital punishment by definition does not rehabilitate. It 
does, of course, incapacitate the offender. But the major alternative to 
capital punishment - namely, life in prison without possibility of parole - 
also incapacitates.

* * *

Recently, the National Research Council (whose members are drawn from the 
councils of the National Academy of Sciences, the National Academy of 
Engineering, and the Institute of Medicine) reviewed 30 years of empirical 
evidence and concluded that it was insufficient to establish a deterrent effect 
and thus should "not be used to inform" discussion about the deterrent value of 
the death penalty.

* * *

Sometimes the community believes that an execution could provide closure. 
Nevertheless, the delays and low probability of execution must play some role 
in any calculation that leads a community to insist on death as retribution. As 
I have already suggested, they may well attenuate the community's interest in 
retribution to the point where it cannot by itself amount to a significant 
justification for the death penalty.... In any event, I believe that whatever 
interest in retribution might be served by the death penalty as currently 
administered, that interest can be served almost as well by a sentence of life 
in prison without parole (a sentence that every State now permits.

* * *

The upshot is that lengthy delays both aggravate the cruelty of the death 
penalty and undermine its jurisprudential rationale. And this Court has said 
that, if the death penalty does not fulfill the goals of deterrence or 
retribution, "it is nothing more than the purposeless and needless imposition 
of pain and suffering and hence an unconstitutional punishment."

* * *

And that fact creates a dilemma: A death penalty system that seeks procedural 
fairness and reliability brings with it delays that severely aggravate the 
cruelty of capital punishment and significantly undermine the rationale for 
imposing a sentence of death in the first place...(one of the primary causes of 
the delay is the States' "failure to apply constitutionally sufficient 
procedures at the time of initial [conviction or] sentencing"). But a death 
penalty system that minimizes delays would undermine the legal system's efforts 
to secure reliability and procedural fairness.

In this world, or at least in this Nation, we can have a death penalty that at 
least arguably serves legitimate penological purposes or we can have a 
procedural system that at least arguably seeks reliability and fairness in the 
death penalty's application. We cannot have both. And that simple fact, 
demonstrated convincingly over the past 40 years, strongly supports the claim 
that the death penalty violates the Eighth Amendment.

* * *

The Eighth Amendment forbids punishments that are cruel and unusual. Last year, 
in 2014, only 7 States carried out an execution. Perhaps more importantly, in 
the last 2 decades, the imposition and implementation of the death penalty have 
increasingly become unusual.

* * *

[I]f we look to States, in more than 60% there is effectively no death penalty, 
in an additional 18% an execution is rare and unusual, and 6%, i.e., 3 States, 
account for 80% of all executions. If we look to population, about 66% of the 
Nation lives in a State that has not carried out an execution in the last 3 
years. And if we look to counties, in 86% there is effectively no death 
penalty. It seems fair to say that it is now unusual to find capital punishment 
in the United States, at least when we consider the Nation as a whole.

* * *

I recognize a strong counterargument that favors constitutionality. We are a 
court. Why should we not leave the matter up to the people acting 
democratically through legislatures? The Constitution foresees a country that 
will make most important decisions democratically. Most nations that have 
abandoned the death penalty have done so through legislation, not judicial 
decision. And legislators, unlike judges, are free to take account of matters 
such as monetary costs, which I do not claim are relevant here....

The answer is that the matters I have discussed, such as lack of reliability, 
the arbitrary application of a serious and irreversible punishment, individual 
suffering caused by long delays, and lack of penological purpose are 
quintessentially judicial matters. They concern the infliction - indeed the 
unfair, cruel, and unusual infliction - of a serious punishment upon an 
individual.

* * *

I believe it highly likely that the death penalty violates the Eighth 
Amendment. At the very least, the Court should call for full briefing on the 
basic question.

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

Supreme Court Justice Calls Death Penalty Drug "Equivalent of Being Burned at 
the Stake"


On Monday the Supreme Court upheld the use of the drug midazolam for lethal 
injections in a 5-4 decision that pitted the 5 conservative justices against 
the 4 liberal ones. Justice Sonia Sotomayor, who wrote her own dissent, argued 
that the use of the drug, which prolongs the execution process and sometimes 
doesn't work at all, was in violation of the Eighth Amendment's prohibition on 
"cruel and unusual punishment." Then she went a step further, comparing the 
drug to a more notorious form of punishment - the burning of heretics at the 
stake:

[T]he Court today turns aside petitioners' plea that they at least be allowed a 
stay of execution while they seek to prove midazolam's inadequacy. The Court 
achieves this result in 2 ways: 1st, by deferring to the District Court's 
decision to credit the scientifically unsupported and implausible testimony of 
a single expert witness; and 2nd, by faulting petitioners for failing to 
satisfy the wholly novel requirement of proving the availability of an 
alternative means for their own executions. On both counts the Court errs. As a 
result, it leaves petitioners exposed to what may well be the chemical 
equivalent of being burned at the stake.

Later in her dissent, Sotomayor added a few more comparisons for good measure. 
"Under the Court's new rule, it would not matter whether the State intended to 
use midazolam, or instead to have petitioners drawn and quartered, slowly 
tortured to death, or actually burned at the stake."

Justice Stephen Breyer, in a separate dissent, went a step further, arguing 
that the death penalty itself might be unconstitutional.

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

Antonin Scalia Compares Death Penalty Opponents to Marie Antoinette; Criticism 
of capital punishment reflects "a let-them-eat cake obliviousness to the needs 
of others," he says.


The Supreme Court's Monday ruling in favor of a controversial lethal injection 
drug gave the court's dissenting liberal justices an opportunity to argue 
against the constitutionality of the death penalty in general. That led 
conservative Scold-In-Chief Antonin Scalia, to reach deep into the history 
books - from Shakespeare to the Enlightenment to the French Revolution - to 
attack one of the dissenters, Stephen Breyer, for his opposition to capital 
punishment.

"Welcome to Groundhog Day," Scalia writes at the start of his concurrence to 
the ruling upholding Oklahoma's use of a sedative that's been responsible for 
multiple botched executions. In a "familiar" response, Scalia says, death 
penalty abolitionists like Breyer latch onto suspicious new studies "as though 
they have discovered the lost folios of Shakespeare [and] insist that now, at 
long last, the death penalty must be abolished for good."

Scalia sounds particularly perturbed by Breyer's citation of the long delays 
before execution as a reason to ditch the death penalty, as Scalia accuses the 
liberals on the court of being the cause of those delays. Breyer's "invocation 
of the resultant delay as grounds for abolishing the death penalty," Scalia 
writes, "calls to mind the man sentenced to death for killing his parents, who 
pleads for mercy on the ground that he is an orphan."

Scalia writes that Breyer "rejects the Enlightenment." His disdain for the 
abolitionist call from Breyer and Justice Ruth Bader Ginsburg reaches its most 
fevered pitch midway through the concurrence. Channeling almost Occupy Wall 
Street-style language bashing the out-of-touch 1 %, Scalia says the court's 
wealthy justices can't comprehend the fear that pervades Real America. "[W]e 
federal judges live in a world apart from the vast majority of Americans. After 
work, we retire to homes in placid suburbia or to high-rise co-ops with guards 
at the door," he writes. "We are not confronted with the threat of violence 
that is ever present in many Americans' everyday lives. The suggestion that the 
incremental deterrent effect of capital punishment does not seem 'significant' 
reflects, it seems to me, a let-them-eat cake obliviousness to the needs of 
others. Let the People decide how much incremental deterrence is appropriate."

(source for 3 above: Mother Jones)

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

Amnesty International USA Responds to Supreme Court Decision on Lethal 
Injection


Steven W. Hawkins, executive director of Amnesty International USA, had the 
following reaction to today's decision by the Supreme Court regarding lethal 
injection:

"This decision does not change the fact that regardless of the method of 
execution, the death penalty is broken beyond repair. The death penalty is the 
ultimate violation of human rights. The Court's decision today will not resolve 
the death penalty's fundamental flaws, including the risk of executing a 
wrongfully convicted person. The only discussion should be how to put an end to 
this cruel, inhuman and degrading punishment once and for all."

(source: Amnesty International USA)