[Deathpenalty] death penalty news----KAN., OKLA., S.DAK., COLO., CALIF., USA, US MIL.

[Rick Halperin]

Feb. 14




KANSAS:

Law of discretion ---- Jessica's Law should be used carefully because of the 
power it gives prosecutors


Judges sit behind the bench, expected to hand out justice, which they could do 
if it weren't for laws getting in the way.

Politicians and legislators have, during the past couple of decades, taken 
justice out of the hands of judges and handed them to prosecutors, who are now 
the most powerful people in the courtroom. They decide, when signing the 
charging document, the future of the case.

Sentencing laws have taken discretion away from judges and were meant to help 
equalize punishment. But in doing so, the laws have handed the ultimate 
decision to the first people to bring a criminal case to court.

The most critical prosecutorial decisions are those involving the death penalty 
for some murders and Jessica's Law for accused sex offenders. The death penalty 
is being argued throughout the country. But Jessica's Law is one that deserves 
more debate because of its potential for injustice.

Jessica's Law was first passed in Florida in reaction to the 2005 abduction and 
murder of 9-year-old Jessica Lundstrom by John Couley, 46, a convicted sex 
offender who lived nearby. The egregious crime caused such an outcry that 
Florida passed a strict law to help keep sex offenders off the streets. Other 
states quickly adopted similar legislation, and by 2006, Kansas had enacted it.

Here, Jessica's Law punishes a first offense of having sex with a child under 
the age of 14 with a mandatory life sentence and no parole eligibility for 25 
years. Some would say good riddance, and in some cases they would be correct. 
The problem with such laws is they don't see past the offense.

2 recent Reno County cases show the discrepancy in how justice can be applied 
simply by how cases are charged.

Samuel Peterson last week pleaded guilty to soliciting sex with a 12-year-old 
Hutchinson girl and given probation. Under the facts of the case, it sounded 
like a reasonable conclusion to what had been a bad situation. Peterson was 19 
when he met the girl, who represented herself as a college-aged student on an 
adult website. It wasn't until later he learned the truth, after he'd climbed a 
ladder into her bedroom to have sexual relations with her.

Peterson never faced the harsh threat of Jessica's Law with its life sentence. 
He was charged with a lower level of indecent liberties with a child and faced 
5 years for fondling. Although he was given probation on a lesser offense, he 
will have to register for life as a sex offender.

The week before, Britany Becker, 20, was charged with indecent liberties with a 
child for fondling a 13-year-old boy who was a friend of the family. She was 
charged under Jessica's Law and faces life in prison.

As elected officials, prosecutors walk a tightrope of public opinion. By not 
charging a woman the same way as a man, for example, they're open to criticism 
and public backlash.

The problem with Jessica's Law is that it shows no distinction between a 
20-year-old, who may have not fully matured, and a 46-year-old who may be a 
more dangerous threat to other children.

By going for the harshest penalty from the start, prosecutors also are in 
danger of causing injustice. People have confessed to crimes they didn't commit 
to avoid long sentences and plead guilty to lesser crimes. Overcharging by 
prosecutors has led to injustices and innocent people being convicted of 
crimes.

In California, Jessica's Law offenders were put on house arrest with a GPS 
monitoring system. But over and over, those failed, until 2 offenders were able 
to escape tracking and murder four women in Orange County while wearing the 
ankle bracelets. Like the death penalty, the law doesn't always work as it's 
supposed to.

Without knowing the full facts of Becker's case, it's difficult to say if the 
charge is correct. Kansas law does grant judges the ability to give a lesser 
sentence for circumstances such as the age of the defendant or lack of criminal 
history. But practically speaking, it's difficult for a judge to depart from 
the law once a charge is filed.

What we do know is that Jessica's Law is often a charge from which there is no 
turning back. It's a law that treats everyone with equal disdain. It puts a 
young adult accused of fondling a neighbor - no question a crime - in the same 
league as a grown adult trafficking a 12-year-old into a life of prostitution.

As we've seen in Reno County, cases with similar facts can even be charged as 
different crimes. The young people who were abused are both harmed. 1 has a 
chance to change his life, the other just faces life in prison.

The punishment should fit the crime. Jessica's Law is so unforgiving that it 
should be used sparingly, if at all.

(source: Ron Sylvester----Hutchinson News editorial board)






OKLAHOMA:

Scalia cast key vote in Oklahoma death penalty case


The late U.S. Supreme Court Justice Antonin Scalia was a reliable conservative 
vote on any number of topics the court took up during his 30-year tenure, 
including a case last year dealing with Oklahoma's death penalty.

Scalia died Saturday at a ranch resort in west Texas, the San Antonio Express 
News reports.

In 2015, Scalia was 1 of 5 justices who sided with Oklahoma in Glossip v. 
Gross, in which attorneys for three Oklahoma death row inmates argued that the 
sedative the state used in its execution protocol could lead to an 
unconstitutional level of pain before death.

The court rejected that argument by a 5-4 vote. Writing in a concurrent 
opinion, Scalia was characteristically colorful, taking Justice Stephen Breyer 
to task for arguing that capital punishment ought to be ended entirely. 
Breyer's dissenting opinion was, Scalia wrote, "full of internal contradictions 
and (it must be said) gobbledy-gook."

"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. Mind you, not once in the history of 
the American republic has this Court ever suggested that the death penalty is 
categorically impermissible."

(source: The Oklahoman)






SOUTH DAKOTA:

Death-penalty repeal killed for 3rd straight year


For the 3rd year in a row, state legislators last week defeated a measure that 
would have repealed the death penalty in South Dakota.

The Senate State Affairs committee voted 7-2 against the bill, whose main 
sponsor was Sen. Arthur Rusch, R-Vermillion, a retired circuit judge.

Rusch, who has prosecuted a death penalty case, told the committee he has seen 
the death penalty's damaging effects firsthand. He said capital punishment 
financially overburdens counties, traumatizes both judges and jurors, and is 
not an effective deterrent on crime.

In his 12 years as a state's attorney who handled 20,000 criminal cases, Rusch 
said he saw that "the only thing about punishment that is an effective 
deterrence is that the punishment is quick and certain." He said South Dakota's 
death penalty is certainly not quick nor certain.

The last 3 individuals to be executed in South Dakota, the lawmaker said, were 
those who essentially consented to it by abandoning their avenues for appeal. 
Meanwhile, 1 death row inmate, Charles Rhines, has been appealing his sentence 
since it was handed down 23 years ago.

Rusch said that besides being a costly government program, capital punishment 
can also lead to mistakes that cannot be rectified, which includes the killing 
of innocent people.

"It really affects and offends the true conservative principles of respect for 
life, of fiscal responsibility and limited government," he said. The death row 
inmate in whose case Rusch presided, Donald Moeller, was executed in 2012 for 
the crime of murder.

The opponents at the hearing included the widow of Ronald Johnson, a state 
correctional officer who was killed by 2 inmates during an escape attempt in 
2011. One of the inmates, Eric Robert, was executed in 2012. His accomplice, 
Rodney Berget, has been on death row for 4 years.

The defeated bill, Senate Bill 94, was introduced with 24 bi-partisan 
co-sponsors.

In the previous legislative session, a measure repealing the death penalty was 
also defeated in the Senate State Affairs committee. In 2014, a similar bill 
suffered the same fate at the House committee level.

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

Death penalty facts

Here are a few factoids about the death penalty in South Dakota.

-- Since 1877, 18 people have been executed in South Dakota or this part of 
Dakota Territory, according to the Cultural Heritage Center.

-- In a famous case, Jack McCall was hanged at Yankton on March 1, 1877 for 
shooting and killing Wild Bill Hickok in Deadwood.

-- Thomas Egan was hanged at Sioux Falls in 1882 for the murder of his wife. 
Years later, his stepdaughter admitted to committing the crime while on her 
deathbed.

-- South Dakota entered the union with capital punishment in place in 1889. 
The state banned the death penalty in 1915, but reinstated it in 1939. South 
Dakota again abolished the practice in 1977 and reinstated it in 1979.

-- From 1889 until 1915, executions in South Dakota were done by hanging. In 
1984, lethal injection was introduced. During the period in between, capital 
punishment was carried out through electrocution

-- The last individuals to be executed in the state were Eric Robert on Oct. 
15, 2012, and Donald Moeller 15 days later. Both were sentenced to death for 
murder.

-- The state's 3 death row inmates are housed at the Jameson Annex of the 
South Dakota State Penitentiary, the prison's maximum-security area, in Sioux 
Falls.

-- Executions are carried out in the State Penitentiary's execution room.

[source: South Dakota Department of Corrections]

(source: Rapid City Journal)






COLORADO:

Conversation starts on death penalty


Is a government program a failure if it is rarely, if ever used? And if so, 
should government leaders look to make it easier to use the program or abolish 
it completely?

In the abstract, that was the question posed last week by the Senate Judiciary 
Committee when considering whether to lower the bar for the implementation of 
the death penalty in Colorado.

Sponsored by Republican Sen. Kevin Lundberg of Berthoud, the proposed 
legislation would have abolished the requirement that all 12 jurors in a death 
penalty case agree on whether a convicted criminal should be put to death. 
Initially, the bill called for nine of the 12 jurors to be in agreement 
regarding the penalty; after an amendment in the committee, it was increased to 
11 of the 12 jurors. The feeling was that a single juror should not have the 
power to block the state from following through on one of its programs: the 
administration of the death penalty in the interests of justice.

To be honest, the bill was drafted to address a single crime - the Aurora 
theater shooting, in which defendant James Holmes was "only" convicted to spend 
life in prison without parole, but the jury could not agree unanimously to put 
him to death.

What's worth noting is that for any jury trial, a single juror can block the 
state from convicting a defendant, whether it's a murder trial or one for a 
much less severe crime. That outcome does not always exonerate a defendant, 
however. If a hung jury results in a mistrial, prosecutors can try again to 
press their case.

Perhaps that is the route lawmakers could consider - providing options when a 
"mistrial" occurs in the penalty phase of a trial. However, the cost to 
taxpayers to prosecute such a strategy might also be a deterrent.

Whether the threshold for execution stayed at a unanimous vote, 11 out of 12 or 
even a simple majority, the introduction of the bill started an important 
conversation about whether the government program of capital punishment is an 
effective one to continue.

The bill died on a 3-2 vote, with Republican Sen. Elllen Roberts of Durango 
joining the 2 Democrats voting against it. It's unfortunate the bill didn't 
make it before more lawmakers because it would have been a compelling public 
policy discussion that goes to one of the core responsibilities of government: 
justice and its administration.

(source: Reporter-Herald)






CALIFORNIA:

A swift death penalty might prevent more child killings


To the editor: I had just returned home after holding my gorgeous 1-month-old 
granddaughter when I read the sickening news of the fate of 1-year-old Autumn 
Johnson. ("'Hearts are broken' after the fatal shooting of a 1-year-old Compton 
girl in her crib," Feb. 10)

This is why we need a swift death penalty. The only way to stop such violence 
is if potential killers realize they too will die, and quickly.

Steve Krimmel, Glendora

(source: Letter to the Editor, Los Angeles Times)






USA:

Scalia in 2006: Criticism of Death Penalty Is 'Sanctimonious'


In the 2006 case Kansas v. Marsh, Justice Antonin Scalia joined the majority in 
ruling that the state of Kansas' death penalty law was constitutional. The 
state's supreme court had struck down the law in 2004. Justice Clarence Thomas 
wrote the majority opinion, and Justice David Souter wrote a passionate dissent 
citing exonerations after death-penalty convictions, which he referred to as 
"hazards of capital prosecution."

Justice Scalia's scornful response has been widely quoted as the number of 
exonerations in capital cases has grown. He wrote:

There exists in some parts of the world sanctimonious criticism of America's 
death penalty, as somehow unworthy of a civilized society. (I say 
sanctimonious, because most of the countries to which these finger-waggers 
belong had the death penalty themselves until recently - and indeed, many of 
them would still have it if the democratic will prevailed.) It is a certainty 
that the opinion of a near-majority of the United States Supreme Court to the 
effect that our system condemns many innocent defendants to death will be 
trumpeted abroad as vindication of these criticisms. For that reason, I take 
the trouble to point out that the dissenting opinion has nothing substantial to 
support it.

It should be noted at the outset that the dissent does not discuss a single 
case - not one - in which it is clear that a person was executed for a crime he 
did not commit. If such an event had occurred in recent years, we would not 
have to hunt for it; the innocent's name would be shouted from the rooftops by 
the abolition lobby. The dissent makes much of the new-found capacity of DNA 
testing to establish innocence. But in every case of an executed defendant of 
which I am aware, that technology has confirmed guilt.

Last year, at a speech at the University of Minnesota Law School, Justice 
Scalia said "it wouldn't surprise me" to see the death penalty fall, and added 
that he had little interest in being a swing vote on the court, saying instead, 
"I'd rather be right."

As for his impressive and growing stack of dissenting opinions, he said, "I 
have never aspired to have the most dissents in the court's history." In fact, 
"I'm in 3rd place now," he added. "I hope I'm never in 1st place."

(source: New York Times)






US MILITARY:

Bar Should Take Note of Military Justice Reforms


Just as 2015 was ending, the Obama administration submitted to Congress a 
legislative proposal that would make significant changes in the military 
justice system. This is an important development, and the bar ought to gear up 
to review and comment on the proposal.

The proposal is the result of 2 years of effort by a Pentagon Military Justice 
Review Group headed by retired Judge Andrew Effron of the U.S. Court of Appeals 
for the Armed Forces. The review group solicited input from a broad range of 
organizations and individuals, both within the Pentagon and in the private 
sector. It unfortunately did not make public the comments and suggestions it 
received, and it appears that even the uniformed defense bar was not permitted 
to see the draft as it moved through the approval process.

This makes it all the more important that what happens next - consideration by 
the House and Senate Armed Services Committees - be a truly open process, 
rather than merely a rubber stamp for the executive branch's draft. The 2 
committees should set aside the substantial time needed to analyze the 
proposal, seek input from knowledgeable sources in the private bar and law 
schools, and conduct meaningful hearings.

In important respects, the Pentagon proposal (which reflects suggestions from 
other parts of the executive branch) both improves and streamlines the military 
justice system. For example, it provides a statutory basis for terms of office 
for military judges (a long-overdue step), fixes the size of military juries 
and adds provision for a judge-alone misdemeanor court. It also enacts into 
positive law a variety of prohibitions that thus far had been developed on a 
case-by-case basis under the sweeping "general article," which covers conduct 
to the prejudice of good order and discipline, among other things. Defense 
lawyers reading the draft may feel that the protection previously afforded by 
the requirement for a preliminary hearing before a general court-martial can be 
convened has been eroded. Other provisions as well are likely to prove 
controversial.

2 aspects of the proposal are particularly worthy of attention, and they most 
concern things not included. First, the bill does not fix the current 
arrangement under which GIs can ask for certiorari review by the Supreme Court 
only if the U.S. Court of Appeals for the Armed Forces itself first grants 
discretionary review. This is a hurdle no other category of criminal defendants 
must face, not even the Sept. 11 plotters who face the death penalty in their 
pending military commission cases. It seems indefensible that service members 
would have less access to the nation's highest court than do other state and 
federal criminal defendants, not to mention Khalid Sheikh Mohammed and his 
co-defendants at Guantanamo.

The other serious shortcoming is that the administration's proposal maintains 
the commander's power to decide how charges will be disposed of, even in cases 
that involve familiar civilian-type offenses such as rape or murder. It also 
maintains the commander's power to select the venire. These are both aspects of 
the commander-centric system we inherited from King George III. They cast a 
shadow over the independence and impartiality of our court-martial and do not 
comport with contemporary human rights standards. It's past time for them to 
go.

Opinions will vary about aspects of this important legislative proposal. The 
subject deserves the thoughtful attention of the bar.

(source: Editorial, Connecticut Law Tribune)