[Deathpenalty] death penalty news----S. DAK., COLO., ARIZ., USA

[Rick Halperin]

Oct. 25



SOUTH DAKOTA:

Legislature will reconsider the death penalty


No question has been more difficult to deal with in my 13 years as a state 
lawmaker than whether capital punishment suits South Dakota.

We've had powerful discussions over the last several years. Heart-wrenching 
debates. And very tough votes to cast once the rolls were called.

Civility and respect for opposing views have never been sacrificed, and 
partisan politics has had little or no role in Pierre. Ardent opposition to the 
death penalty has come from 2 former Republican attorneys general and from 2 
retired judges who now serve in the Legislature. Some members of my Democratic 
party, meanwhile, have supported the death penalty. Everyone has been focused 
on conscience, good policy and their own life experiences.

Such decorum makes me proud to be a South Dakota legislator, even though the 
outcome hasn't yet been what I think would be best for our state.

The discussion goes on. At least 3 forums have been planned for Aberdeen, Sioux 
Falls and Rapid City this fall. The 1st was in Rapid City on Oct. 17, as part 
of an all-day meeting of the Rapid City Catholic Diocese social justice 
commission in the Terra Sancta Retreat Center. I applaud Bishop Robert Gruss 
and everyone who was involved.

I hope that opponents and proponents of the death penalty - plus that quiet 
majority of South Dakotans who are questioning the right path - will look for 
opportunities like these to learn more about the issue.

Americans have wrestled with the death penalty for decades, but especially 
since it was reinstated by the U.S. Supreme Court in 1976. Changes are coming 
fast.

Legislators in our neighboring state of Nebraska outlawed capital punishment 
earlier this year. That decision has been referred to the voters, and the 
debate could dominate their 2016 election cycle.

Pope Francis takes a special interest in the issue, and as always his argument 
is very down-to-earth. "When the death penalty is applied, it is not for a 
current act of aggression, but rather for an act committed in the past," says 
the Pope. "It is also applied to persons whose current ability to cause harm is 
not current, as it has been neutralized - they are already deprived of their 
liberty." He argues that opposition to the death penalty is a basic pro-life 
position.

U.S. Supreme Court Justice Stephen Breyer argued this month that the death 
penalty violates the Eighth Amendment to the Constitution, which prohibits 
"cruel and unusual punishment." Breyer hopes the high court will re-examine the 
issue soon. Possibly it will arise in the context of whether death is an 
appropriate sentence for those with a serious mental illnesses.

Pharmaceutical companies no longer want their drugs used as part of a prison's 
lethal injection "cocktail," consequently states that still have capital 
punishment are finding it more difficult to administer. 3,000 men and women are 
on death row, but only 35 executions were conducted in 2014.

The average cost of prosecuting and administering a death penalty case 
nationwide is more than $1 million. In South Dakota, we've executed 3 men since 
capital punishment was reinstated by the Supreme Court. Our state prosecutors 
and courts have used the death penalty sparingly. And our executions haven't 
been as expensive as in other states, partly because all of the last 3 killed 
eventually dropped their appeals. Their executions were basically assisted 
suicides by the state. However, only 10 % of convicted murderers drop their 
appeals nationwide so our "volunteer" rate is likely to drop.

South Dakota is one of 31 states with the death penalty, but 7 states have 
abolished the practice since 2006. There's no evidence that capital punishment 
acts as a deterrent. In fact, homicide rates in states without the death 
penalty are lower than the national average.

The United States was 1 of just 22 countries that performed executions in 2013, 
according to a study by Amnesty International, ranking 6th in total executions 
behind China, Iran, Iraq, Saudi Arabia and North Korea. We're not in good 
company.

Certainly, the trend in today's civilized world is to end capital punishment. 
The issue will face us again in January in the state Legislature. Other issues 
are easier to think about but nothing strikes more to the soul of our great 
state.

(source: Bernie Hunhoff is a state senator from Yankton. A Democrat, he 
sponsored a bipartisan death penalty repeal bill in the 2014 session----Rapid 
City Journal)






COLORADO:

Has the death penalty worn out its welcome?


James Holmes. Dexter Lewis.

If there were ever cases to make for the death penalty, few would argue these 
were it.

Holmes is the orange-haired killer who walked into an Aurora movie theater July 
20, 2012, and opened fire. When the dust settled, 12 people were dead, more 
than 70 were injured and an entire nation was left in shock.

Lewis stabbed 5 people to death in a Denver bar.

Both received life in prison.

We here on the Tribune Editorial Board don't have a unanimous stance on the 
death penalty. Some are for it, some against. Others are planted firmly on the 
fence.

What we all agree on, however, is the possibility the death penalty simply may 
not make sense anymore. The cost may just be too high.

First is the monetary expense of the trial. With the death penalty on the 
table, the equivalent of two trials take place. First comes the trial 
determining guilt, followed by the decision of sentencing the defendant to 
death.

Of course, we understand we're using our 20/20 hindsight here, but had Holmes 
or Lewis been allowed to make a deal, the trials would have ended in exactly 
the same spot - with either going to jail for the rest of their lives. But now, 
in the Holmes case more than 3 years and countless dollars later, both are 
going to jail for the rest of their lives.

And that's just the monetary aspect.

Check out our story on Page A1 of today's paper. Greeley's Tamara Brady works 
for the Colorado Public Defenders Office. 3 days after the tragic shooting at 
the Aurora theater, Brady was in court defending Holmes.

Brady spent the next 3 years of her life primarily in Aurora. She rented an 
apartment there once the trial started, only coming home on occasional 
weekends. She left her husband and teenage daughter behind in Greeley.

During those 3 years, Brady's daughter graduated from high school. Tragically, 
Brady also lost her father. Needless to say, she wasn't able to be around 
nearly as much as she would have liked for these major milestones in her and 
her family's life.

Brady wasn't alone. Brady was a member of a 5-person team defending Holmes. All 
of them made sacrifices.

The cost doesn't end with money and time, either.

The emotional toll the trial took on the families of the victims, the 
prosecutors, the defenders, the judge - really everyone involved in the trial - 
is immeasurable. Even the public had to deal with a roller coaster of emotions 
as the trial dragged on.

We haven't even touched on the aspect of mental health - which is what many of 
us believe is at the heart of the issue. Anyone who walks into a theater and 
opens fire - anyone who stabs 5 people in a bar - anyone who walks into a 
school intent on killing people - isn't in their right mind.

So how can we, in our right mind, put them to death?

In the cases of Holmes and Lewis, we couldn't.

So we, like Brady, would much rather see money spent on cleaning up the mess 
that is our mental health system than throwing away money on trials that will 
rarely - if ever - end in a ruling to put someone to death.

(source: The Greeley (Colo.) Tribune Editorial Board)






ARIZONA:

Rector's attorneys file 2 more motions


The attorneys in a Bullhead City death penalty case have filed more motions and 
counter-motions.

Justin James Rector, 27, is charged with 1st-degree murder, kidnapping, child 
abuse and abandonment of a dead body. He is accused of killing Isabella 
Grogan-Cannella, 8, on Sept. 2, 2014, and leaving her body buried in a shallow 
grave near her Lakeside Drive home.

Rector's attorneys, Gerald Gavin and Ron Gilleo, filed 2 more motions last 
week, including one to ask the judge to record his reasoning for overruling any 
objections raised by the defense attorneys during the trial.

The 2nd motion would ask the judge to excuse any juror who cannot consider 
mitigation evidence during the penalty phase of the trial. Gavin asks the judge 
to excuse the juror if that person automatically votes for the death penalty 
after the mitigation hearing if Rector is convicted of murder.

Deputy Mohave County Attorney Greg McPhillips also responded Friday to 3 other 
defense motions. The prosecutor asked the judge to deny Gavin's motion calling 
for the judge to clarify that prosecutors will not be present DNA testing and 
evidence at Rector's trial. McPhillips argued that filing the motion is a waste 
of the judge's time and Gavin should contact the prosecutor directly.

McPhillips also agreed to set a hearing that would require the prosecution to 
show probable cause to support allegations of aggravating factors or dismiss 
the allegations. An aggravating factor could be that the crime was cruel, 
heinous and depraved or the victim was under the age of 15.

The prosecutor also asked the judge to deny Gavin's motion for a jury 
questionnaire. McPhillips said he is not ready to discuss a jury questionnaire 
until a mental health exam of Rector is conducted.

Superior Court Judge Lee Jantzen has denied most of Gavin's previous defense 
motions. Gavin and Gilleo have filed about 5 dozen motions on behalf of Rector 
since they took the case in March.

Rector's next status hearing is set for Dec. 9.

Rector's 10-week murder trial is set to begin Oct. 17, 2016, with a pre-trial 
hearing set for Aug. 23, 2016.

(source: Mohave Daily News)

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

Buying execution drugs overseas raises doubts


The death penalty debate is a smelly swamp no one wants to wade through.

What gives a human the right to sentence another human to death? But, then, 
what right did a human have to murder another?

If you follow the "an eye for an eye" tenet, you agree with passing the 
sentence of death onto a killer. I don't feel qualified to do that, but if 
someone killed my child, I'm guessing I'd probably volunteer to do the job 
myself.

So, as I said, it's quite the quagmire. I'm not writing here to debate it.

What brought it to my mind was the report this week that the Food and Drug 
Administration impounded orders of a drug used in lethal injections.

Arizona paid nearly $27,000 for the sodium thiopental, but federal agents took 
custody of it when it arrived via British Airways at the Phoenix airport in 
July, according to documents obtained by The Associated Press. A shipment for 
Texas was also seized this year.

Courts have concluded that sodium thiopental for the injection in humans is an 
unapproved drug and may not be imported into the country," FDA spokesman Jeff 
Ventura said in a statement.

According to the AP story, "The shortage of execution chemicals has become more 
acute over the past few years. Ever since European companies started refusing 
to sell them to the U.S. death penalty states have been scrambling to secure 
supplies."

The shortage has led to Ohio halting executions until 2017 and Nebraska to get 
into federal trouble for trying to buy the chemicals in India. Utah reinstated 
their firing squad and Tennessee revived the electric chair. It seems we are 
regressing in the effort to "humanely" execute prisoners.

Arizona has actually put executions on hold since the death in July 2014 of 
Joseph Wood. It took Wood 90 minutes to die and there is an ongoing lawsuit 
because of that. The state has 118 death row inmates.

According to the AP, the state also announced Friday that it is adding another 
drug combination and will make executions more transparent for media and 
attorneys.

If Arizona is adding another drug combination due to the shortage, why are they 
purchasing foreign execution chemicals? States have no business buying drugs in 
foreign countries to start with.

I would think that could lead to more lawsuits. There are no controls on 
foreign compounds and no way of knowing if what you buy is what you asked for. 
What happens if an inmate is given a cocktail on execution day and something 
worse than taking 90 minutes to die happens?

Without getting into the moral implications of executions to start with, I'm 
for keeping them on hold until the drug issue is solved or changed, not 
trolling the back alleys of India like some shady dealer.

(source: Robin Layton, editor, The (Prescott, Ariz.) Daily Courier)






USA:

Evangelicals Discover Moral Ambiguity on the Death Penalty----A new focus on 
systemic institutional problems reflects the changing demographics of the 
faithful.


Earlier this week, the National Association of Evangelicals (NAE) - the 
umbrella group founded in 1942 to give conservative white-evangelical 
Protestants an amplified voice - voted to soften its longstanding position 
supporting capital punishment. In the first amendment to its stance since 1973, 
the new resolution officially recognizes the evolution of evangelical thought 
into 2 distinct streams, each "citing strong biblical and theological reasons 
either for the just character of the death penalty in extreme cases or for the 
sacredness of all life, including the lives of those who perpetrate serious 
crimes and yet have the potential for repentance and reformation."

On the face of it, this shift from unequivocal support for capital punishment 
to recognition of multiple views seems somewhat inconsequential. But the NAE 
resolution provides a window into deeper and more significant changes within 
American evangelicalism.

The move appears especially modest when seen up against white-evangelical 
Protestant public opinion on the issue: Nearly 6 in 10 white-evangelical 
Protestants support the death penalty for those convicted of murder, compared 
to only about 1/3 who say they prefer life in prison with no chance of parole.

Compared to other religious groups in the country, white-evangelical 
Protestants top the chart in support for the death penalty. By contrast, black 
and Hispanic Protestants - groups that each overwhelmingly identify as 
born-again or evangelical - anchor the bottom of the chart. Only about 1/4 of 
black Protestants and Hispanic Protestants favor the death penalty for those 
convicted of murder, compared to more than 2/3 of black and Hispanic 
Protestants who prefer life in prison with no chance of parole.

The NAE resolution is notable, however, for explicitly mentioning "racial 
disparities." The inclusion of these 2 words - even if they go by fairly 
quickly among a list of other problems - marks something genuinely new and 
significant.

The NAE's willingness to talk about racial disparities in capital sentencing 
comes as it slowly strengthens its ties with black and Latino evangelical 
leaders. For example, the NAE board's 12-member executive committee includes 
Reverend Samuel Rodriguez, president of the National Hispanic Christian 
Leadership Conference, and Reverend Jack Jenkins, pastor of First Baptist 
Church of Glenarden, a predominantly African American megachurch outside of 
Washington, D.C. Rodriguez penned a 2014 op-ed in Time calling on his fellow 
evangelicals to rethink their position on capital punishment following the 
botched execution of Clayton Lockett in Oklahoma.

These increasing ties have been driven by moral conviction, but they are also 
dictated by demographic realities. Since 1998, white-evangelical Protestants 
have fallen slightly as a proportion of the population, from 22 % in 1998 to 18 
percent in 2014. Black Protestants have largely remained steady, comprising 10 
% of the population in 1998 and 9 % in 2014. But Hispanic Protestants have 
shown remarkable growth in the 21st century, moving from only 1 % of the 
population in 2000 to 4 % in 2014.

Calculating this a bit differently - looking at all self-identified evangelical 
or born-again Christians by race over time - confirms the pattern. According to 
the General Social Survey (GSS), in 1998, 72 % of self-identified evangelicals 
were white, while 24 % were black, and 4 % were some other race. In 2014, the 
white proportion of evangelicals had fallen 8 % points to 64 %. Meanwhile, the 
black proportion of evangelicals remained steady at 25 %, Hispanics accounted 
for 8 %, and other races accounted for 2 %.

The demographic data unequivocally point to an evangelical future that is less 
white, comparably African American, and more Hispanic. As whites are becoming 
less dominant in the American evangelical family, organizations like the NAE 
have begun to adjust to the new reality by becoming more inclusive in their 
leadership and membership. The recent NAE statement on capital punishment 
signals at least 2 ways in which these nascent connections may already be 
having a deeper impact on white evangelical moral theology and worldview.

First, in addition to its explicit citation of "racial disparities," the NAE 
resolution also references a number of "systemic problems in the United States" 
that challenge the just implementation of capital punishment. Particularly on 
issues connected to race and racism, the moral imaginations of white 
evangelicals have been somewhat limited by a theological toolkit that 
emphasizes individual sin and responsibility, the importance of right personal 
relationships, and a resistance to explanations that appeal to structural 
factors. Evangelicals have tended to see racism as a problem of disordered 
personal relationships rather than disordered institutions and laws, and they 
often dismiss out of hand sociological or structural explanations of social 
problems. But the new NAE resolution has departed from this pattern; in its 
closing statement, it even connects the issue of capital punishment directly to 
the broader issue of criminal-justice reform, calling for the elimination of 
"racial and socio-economic inequities in law enforcement, prosecution and 
sentencing of defendants."

Equally striking is the organization's embrace of the moral legitimacy of 
dissenting views on a complex issue. One of the biggest concerns many white 
evangelicals harbor about contemporary society is a rise in theological and 
ethical relativism. Evangelical policy statements are, more often than not, 
justified by arguments with a high degree of - if not absolute - moral 
certainty. The NAE's relatively brief 1972 statement on capital punishment 
simply asserts a logical connection between the value of human life (of the 
victim) and the justification for capital punishment:

>From the biblical perspective, if capital punishment is eliminated, the value 
of human life is reduced and the respect for life is correspondingly eroded. 
The National Association of Evangelicals believes that the ultimate penalty of 
capital punishment should be retained for premeditated capital crimes.

The most recent resolution, however, respectfully and fairly describes in 
detail the theological arguments for those who both favor and oppose capital 
punishment, concluding, "We affirm the conscientious commitment of both streams 
of Christian ethical thought." This admission of the legitimacy of sincere 
theological and moral disagreement on a difficult issue is a marked departure 
from the assertions of moral certainty that have traditionally set the tone of 
past evangelical policy pronouncements.

In the process of making this modest shift on capital punishment, the NAE has 
done something far more significant. It has added two new tools to the 
evangelical cultural toolkit: a lens for perceiving systemic injustice and a 
greater tolerance for sincere moral disagreement. As Americans wrestle with 
broader issues of race and discrimination that have been brought to the fore by 
the #BlackLivesMatter movement, and as they move into the contentious 
presidential campaign season, it remains to be seen whether evangelical leaders 
and evangelicals in the pews will learn to use them.

(source: The Atlantic)

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

In Defense of the Death Penalty


As discussed in my last piece, a year full of death penalty cases follows 
Justice Breyer's warning at the end of last term that the death penalty may, in 
all circumstances, be unconstitutional. I thought I'd do something 
unconventional this time and present arguments on both sides of the death 
penalty issue in this post and a corresponding one. I hope that they are evenly 
enough presented that no one can discern my true views, which have been in flux 
lately. Here, I argue that the death penalty is constitutionally permissible 
and that if they want to, states may choose to have the death penalty.

The Fifth Amendment begins with "No person shall be held to answer for a 
capital, or otherwise infamous crime, unless on a presentment or indictment of 
a Grand Jury ..." It is hard to see how this does not immediately end the 
debate. The Fifth Amendment gives a command regarding the proper procedure for 
carrying out a capital prosecution. How, then, could this document forbid 
capital punishment? As if that were not clear enough, the Fifth Amendment later 
says that no person shall "be deprived of life, liberty, or property, without 
due process of law." Likewise, in the corresponding command that the Fourteenth 
Amendment issues to the states (in contrast to the Fifth Amendment, which 
originally applied only to the federal government), it says, "nor shall any 
state deprive any person of life, liberty, or property, without due process of 
law." The inference to be drawn here should be obvious to anyone who is awake: 
if due process is provided, life may be taken. It is no less constitutional to 
execute someone after a fair trial than it is to imprison him.

The Fifth Amendment (in 2 places) and the Fourteenth Amendment specifically 
mention capital punishment or deprivation of life at the hands of the state. 
How the Constitution can be thought to ban a punishment it simultaneously 
explicitly contemplates and supplies procedural guidelines for is a mystery to 
me. Nevertheless, a number of arguments for this proposition have been put 
forward, so I move to address them now, noting that the burden of proof on the 
death penalty's challengers ought to be exceptionally high since they are 
trying to show that one part of the Constitution implicitly forbids that which 
another explicitly endorses.

The 1st abolitionist argument is that the death penalty is disproportionately 
used against black defendants in violation of the Equal Protection Clause of 
the Fourteenth Amendment. The evidence for this proposition is mixed. It 
depends on whether one compares the percentage of death row inmates who are 
black to the percentage of black people in the population at large (in which 
case, black people are overrepresented on death row) or to the percentage of 
convicted murderers who are black (in which case, black people are not 
overrepresented on death row). While the 1st comparison makes for fruitful 
policy discussions about the root of societal ills and institutional racism, 
only the 2nd comparison is permissible in terms of constitutional analysis. 
After being convicted of murder, are black defendants more likely to get the 
death penalty than white ones? The answer is no, and this is sufficient for the 
analysis under the Fourteenth Amendment. If a law were unconstitutional because 
a higher percentage of black people are imprisoned for violating it than is 
their share of the population, nearly every law on the books would be 
unconstitutional. Nearly all laws end up having a racially discriminatory 
effect. This observation implicates many societal ills, including poverty, lack 
of educational opportunity, over-policing of minority communities, and others. 
Empowering unelected, unaccountable, mostly elite and wealthy judges to "solve" 
these problems by declaring all laws with discriminatory impact 
unconstitutional would be disastrous. But that is exactly what those who would 
ban the death penalty on Equal Protection Clause grounds would do.

It remains true that if racial bias infects any particular capital case, the 
death sentence must be vacated under the Constitution and a new trial must be 
ordered. This does not render the death penalty itself unconstitutional. 
Moreover, a general discriminatory effect is insufficient to prove the death 
penalty unconstitutional (McClesky v. Kemp).

A 2nd argument is that capital punishment constitutes cruel and unusual 
punishment and is therefore illegal under the Eighth Amendment. This argument 
is simply silly. The Eighth Amendment says "... nor cruel and unusual 
punishments be inflicted." A punishment must be both cruel and unusual to run 
afoul of the Eighth Amendment. Assume for the sake of argument that the death 
penalty is "cruel" under this standard. It is certainly not unusual. The United 
States executes a few dozen people every year. The 4 most populous countries in 
the world - China, India, the United States, and Indonesia - all retain the 
death penalty. From those 4 countries alone, it can be deduced that nearly 1/2 
of the world's population live in a country that permits the death penalty. 
After considering countries aside from those 4, one realizes that well over 1/2 
the world's people live in death penalty countries. It is certainly not 
unusual, which means it is consistent with the Eighth Amendment.

A 3rd abolitionist argument is that juries' inconsistency in giving death 
sentences renders the death penalty unconstitutional. The argument points to 
statistics such as "85% of American counties have not had an execution in 40 
years" and "4 of Texas's 254 counties account for 50% of Texas's executions" to 
demonstrate supposed jury inconsistency. Only capital murder statutes could be 
suggested to be unconstitutional because they are invoked more in 1 county than 
another. Imagine such a suggestion about drug statutes or white-collar crime 
statutes. Moreover, there is nothing unconstitutional about jury discretion, 
even if it leads to inconsistency. Serving on juries is a political right akin 
to voting (see, e.g., Strauder v. West Virginia), and there should be nothing 
surprising or jarring about the fact that some counties (perhaps the more 
crime-ridden ones) have citizens who impose the death penalty more often than 
other counties. The discretion of the jury as it embodies community values is 
the whole point of a "jury of one's peers." It would be constitutionally 
suspicious if every jury did act the same way. In any case, the nonexistent 
(and actually counter-constitutional) requirement of jury consistency cannot 
override the Constitution's explicit contemplation of the death penalty in the 
Fifth and Fourteenth Amendments.

Otherwise, abolitionist arguments against the death penalty generally fall into 
the same category: they find a single line of case law from the Supreme Court 
and try to distort it to bear the enormous weight of dooming the death penalty. 
For example, they may take the Ring v. Arizona requirement that a jury, not a 
judge, impose the death penalty, couple it with the Furman v. Georgia statement 
that the death penalty cannot be wantonly or inconsistently imposed, and 
conclude that since juries are inconsistent (see above), the death penalty is 
unconstitutional. To the extent that such arguments don't already misread the 
case law by taking minor phrases in long opinions out of context, they are 
still unpersuasive. The Supremacy Clause of the Constitution specifies that the 
"Constitution, and the Laws of the United States which shall be made in 
pursuance thereof; and all Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme Law of the Land." The 
Constitution is supreme; the Supreme Court's case law is not. The justices take 
an oath to uphold the Constitution; they take no oath to the case law. When the 
Supreme Court misreads the Constitution to place a particular restriction on 
the death penalty, that misreading cannot then beget a larger misreading: the 
death penalty's nullification. Recent jurisprudence may trend in the 
abolitionist direction, but when the case law and the Constitution conflict, 
the Constitution must take precedence, as is articulated in the Supremacy 
Clause. The text of the Constitution clearly permits capital punishment.

"Death is different" jurisprudence has been attractive to many for a long time. 
It holds that because the punishment of death is unique, different 
constitutional rules apply to capital punishment. This is true insofar as the 
Constitution occasionally specifies different rules, such as the grand jury 
requirement in the Fifth Amendment for capital or otherwise infamous crimes. 
Otherwise, death is not constitutionally different. Invoking "death is 
different" as a rationale for invalidating death penalty laws on racial 
equality grounds while leaving intact every other law with an equally 
discriminatory effect is shoddy and inconsistent legal reasoning designed to 
cover up the "coincidence" (read: "fraud") that the Constitution that other 
people wrote 225 years ago happens to forbid all the things you would like it 
to and permit all the things you would like it to, almost as if you are writing 
the law yourself as you go along. That is because those who believe that the 
Constitution forbids the death penalty are, in fact, writing the law 
themselves.

(source: Robbie Flatow, thepolitic.org)