[Deathpenalty] death penalty news----NEB., MONT., WASH., USA

[Rick Halperin]

Feb. 7



NEBRASKA:

Kuehn proposes shield law to begin death penalty fix


The rural veterinarian from Heartwell had just jumped into his new role as a 
state senator in early 2015 when the Nebraska Legislature voted to replace the 
death penalty with life in prison, then voted to override Gov. Pete Ricketts' 
veto of the bill.

Sen. John Kuehn voted against the bill (LB268) and then against overriding 
Ricketts' veto, after taking time, he said, to educate himself and listen to 
constituents.

"My district was very clear where they stood on the issue," he said.

Kuehn's legislative District 38 covers 6 counties and a corner of another in 
south-central Nebraska. 18 months after his votes in the Legislature, residents 
in the 6 full counties of his district -- Clay, Franklin, Kearney, Nuckolls, 
Phelps and Webster -- voted 11,656 to 4,684 to keep the death penalty in 
Nebraska, and residents of Buffalo County, where Kuehn has some constituents, 
voted 13,080 to 7,167 to keep the law on the books.

But even before that statewide vote, Kuehn said, he had begun thinking about 
how to repair what death penalty opponents said was a broken system.

Last summer he began doing research, he said, to answer the question: Is it 
broken beyond repair or are there specific steps that can be taken to make it 
workable?

To that end, he has introduced a bill (LB661) that would keep confidential the 
state's sources of lethal injection drugs. Nine other senators have signed on 
to the bill as co-sponsors.

"I don't know that ... it has the ability to fix it," Kuehn said. "I think it's 
a first step."

He knows there will be other roadblocks to carrying out the death penalty, he 
said.

When the Department of Correctional Services rewrote the execution protocol 
after the November election, it originally allowed for the supplier of the 
lethal injection drugs to remain confidential. But after a hearing on the 
proposed protocol, in which many of those testifying demanded more 
transparency, it struck a paragraph that would have authorized the director to 
not disclose the identity of the supplier.

Kuehn's bill, however, would allow the person or company to remain a secret.

Lincoln Sen. Adam Morfeld, who is opposed to the death penalty, is opposed to 
any secrecy tied to the protocol.

"When the state decides to kill one of its own citizens, the process of the 
state sanctioned murder should be transparent and open to the public," he said. 
"Citizens should not be killed in a shroud of secrecy."

Kuehn knows people may think he worked in conjunction with the department in 
writing the bill, but he did not, he said. And the bill is not wrapped up in 
the politics of this session, he said, even though the bill was sent to the 
Government, Military and Veterans Affairs Committee rather than the Judiciary 
Committee for hearing and discussion.

The 1st draft of the bill was delivered on Oct. 31, before new senators were 
elected, he said, and before new committees and their leaders chosen.

Keeping the source of lethal injection drugs confidential is important for more 
than just the state's benefit, Kuehn said.

(source: Lincoln Journal Star)






MONTANA:

Bill to abolish death penalty hears emotional testimony


The House Judiciary Committee heard an hour of powerful testimony from people 
in favor of abolishing the death penalty, who shared a comprehensive list of 
reasons for their support.

Those who testified included a man wrongly sentenced to death, the mother of a 
murder victim and attorneys who were haunted by years of adherence to the death 
penalty system. Conservative legislators and religious leaders asked the 
committee to consider the ethics of a system where a death results in more 
death. Several people said eliminating the death penalty is a cost-saving 
measure.

Bills to abolish the death penalty have never made it off the House floor. Last 
session, a bill to replace the death penalty with life in prison without parole 
came close, but died in the house with a 50 to 50 vote, largely along party 
lines with Republicans against it.

However, some conservatives are realizing the death penalty doesn't align with 
their core values. Adam Hertz, R-Missoula, introduced House Bill 366 this 
session, which would substitute the death penalty for life without parole.

Hertz said he introduced the bill in part to be a good steward of tax dollars, 
and said an inmate on death row costs 10 times more than an inmate sentenced to 
life without parole. The bill does not yet have a fiscal note to determine the 
cost savings for abolishing the death penalty. Several committee members 
questioned whether it would be significant, as there are only 2 Montanans on 
death row.

While concerned about fiscal responsibility, Hertz said the bill would also 
fulfill his belief that life begins at conception and ends with natural death, 
and would provide inmates with a chance for redemption.

"I believe the death penalty system overlooks why we condemn murder in the 1st 
place," Hertz said. "As a Christian, I believe in redemption."

Rep. Adam Rosendale, R-Billings, Rep. Mike Hopkins, R-Missoula, and Marc Hyden 
represented the Conservatives Concerned about the Death Penalty organization. 
Hyden said conservatives are realizing the death penalty violates core 
principles of valuing life, promoting fiscal responsibility and a limited 
government.

Ray Krone, who spent a decade in prison for a crime he didn't commit, told the 
committee his story. He was accused of a murder involving a bite wound and 
found guilty after the prosecutor hired an expensive expert who testified the 
bite on the victim matched Krone's teeth. His parents mortgaged their house and 
cashed in retirement funds to afford an appeal. He was again found guilty, but 
was sentenced to life in prison after the judge doubted his guilt. In 2012, DNA 
testing finally proved his innocence. Krone is the 100th death row inmate to be 
exonerated in the United States.

"I was number 100," he said. "10 years, 3 months, 8 days of the hell my family 
went through."

Susan DeBree, a pastor at United Methodist in Livingston, is the mother of a 
murder victim. Gretchen, her daughter, was shot in the back of the head. Her 
death was found to be suspicious, but no charges were filed.

While the family has spent a lifetime with questions regarding the murder of 
Gretchen, DeBree said the death penalty wouldn???t have brought closure either.

"The death penalty reinforces the practice of killing another human being to 
end the conflict," she said. "Redemption is a gift from God. Our faith teaches 
us it's possible for all."

Franklin Bookhart, a representative with the Montana Association of Christians, 
said the idea of killing a person for having killed a person is contradictory 
and calls the whole practice into question.

"I would add human justice of course is always approximate. Sometimes we 
execute people who are innocent," he said.

Sarah Beck, a pastor from Billings, said the death penalty process forces the 
families of victims to relive the crime with each appeal and denies the ability 
to grieve or heal. Beck presented the committee with a letter signed by 50 
family members of murder victims, who also oppose being complicit in taking a 
life.

Betsy Griffing, an attorney, said she supports the end of the death penalty for 
ethical reasons, the exorbitant cost and its arbitrary application.

She said death penalty cases are inherently complex and often take 20 years to 
get through motions, challenges of searches and confessions and 
constitutionally required appeals. The lengthy process is supposed to ensure 
that the innocent are not executed. In her years of experience, Griffing said 
she thought minorities and low-income people were disproportionately sentenced 
to death.

Griffing spoke of a fellow attorney haunted by the hypocrisy of a system that 
takes a life because it values life. After she supervised the legal team in 
Montana's 1st execution in 50 years, she could no longer support the death 
penalty.

"I too vowed I would do everything I could to see that the death penalty was 
abolished," she said.

SK Rossi, director of advocacy and public policy for ACLU Montana, said there 
isn't any evidence suggesting the death penalty deters people from committing 
capital offenses.

No one testified in opposition to the bill.

(source: Helena Independent Record)

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

Montana Examines Death Penalty After Judge Blocks Executions


Montana legislators are taking another look at whether to abolish the death 
penalty after a judge blocked the state from carrying out executions because it 
has no access to a drug used in lethal injections.

Clergy, young conservative lawmakers and an exonerated Arizona death-row inmate 
urged the House Judiciary Committee on Monday to pass a bill abolishing the 
death penalty. The maximum penalty would become life in prison without parole, 
under the measure by Rep. Adam Hertz, R-Missoula.

"To kill a person for having killed a person seems to me to make no sense," 
said Bishop C. Franklin Brookhart Jr. of the Episcopal Church of Montana. 
"We're not in the business of vengeance - at least I hope we're not in the 
business of vengeance."

Bills to abolish the death penalty have been introduced and failed in every 
legislative session since 1999, which is as far back as the state Legislature's 
online bill-tracking archive goes. Death penalty opponents came closest in the 
last session 2 years ago, when the measure died on a 50-50 House vote.

If the bill to abolish the death penalty passes this year, Montana will become 
the sixth state since 2010 to either overturn or place a moratorium on 
executions. Montana is similar to other states that have recently overturned 
their death penalties: It carries out relatively few executions, and it has 
previously tried several times to abolish the law, said Death Penalty 
Information Center executive director Robert Dunham.

"I think Montana fits well within that pattern," Dunham said. "It does not 
aggressively carry out the death penalty."

Recently, more Republican lawmakers such as Hertz have been behind the 
abolition efforts in some states. They say the death penalty goes against their 
values that a person has a right to live from natural birth to natural death, 
and that housing death-row inmates and paying their court costs is too 
expensive.

"Some of us supported death penalty for years, but we've given a critical look 
at it," said Marc Hyden, an advocacy coordinator for the group Conservatives 
Concerned About the Death Penalty. "Many of us don't trust the government to 
deliver mail or fill potholes, so why would we trust them with a dangerous 
government program that metes out death to its citizens?"

Montana has executed 3 inmates by lethal injection since 1976, most recently in 
2006. There are currently two inmates on death row, both of whom challenged the 
state's execution methods in a lawsuit that led to a Helena judge effectively 
blocking executions until an adequate drug can be found.

The state had used sodium pentothal as a barbiturate in its 2-drug lethal 
injection method, but that drug is no longer manufactured in the U.S. and it 
can't be imported. District Judge Jeffrey Sherlock ruled in October 2015 that 
the state's recommended substitute for sodium pentothal doesn't meet the 
requirements detailed in state law and could not be used in executions, leaving 
the state without an alternative drug to conduct executions.

Bill Comstock, a member of the Montana branch of the Conservatives Concerned 
About the Death Penalty, said the judge's ruling means Montana is now wasting 
money to house 2 death-row inmates who will likely never be executed. "We're 
essentially throwing away money for nothing," Comstock said.

The House Judiciary Committee did not take immediate action on the bill, though 
several lawmakers on the panel indicated their opposition. One, Rep. Lola 
Sheldon-Galloway, R-Great Falls, said she is not convinced that a convicted 
murderer who is sentenced to life won't eventually walk away from prison.

"We believe that person's going to leave prison in a body bag," 
Sheldon-Galloway said. "We have no guarantee here that that's going to happen."

(source: Associated Press)






WASHINGTON:

Washington Governor Says Death Penalty Doesn't Offer Equal Justice


Washington Gov. Jay Inslee says he thought long and hard about imposing a 
moratorium on the state's death penalty. Inslee told "Think Out Loud" host Dave 
Miller that the temporary halt in executions came only after an examination of 
the entire justice system in Washington state.

"The state could not continue to administer unequal justice with such extreme 
costs, with no deterrence of crime, and a very high failure rate of our 
prosecutions," Inslee said. "We've had 75 % of our capital punishment sentences 
overturned."

In 2011, then-Oregon Gov. John Kitzhaber said he hoped the moratorium he 
imposed would spark a public dialogue around the issue, something he told Think 
Out Loud has not happened. Inslee told OPB that he believes the issue has 
gotten a lot of attention, at least in his own office.

"I have made this very clear," Inslee said, "that I believe the legislature 
should move on this subject, that it should change these capital cases to life 
in prison, to life imprisonment without the possibility of parole, and I've 
urged them to do so as recently as a week or 2 ago," he said.

Inslee acknowledged he used to be in favor of capital punishment. But he says 
it's different as governor.

"I'm responsible for administration of justice," he said. "And what I found in 
the real world is that we have a very flawed system of justice in our state, 
which has incredibly unequal results."

29 of the 39 counties in Washington state are not currently asking for the 
death penalty in capitol cases because they can't afford it, according to 
Inslee.

"It doesn't matter who the prosecutor is: it's off the table. So you basically 
have ... a handful of counties that are executing citizens of this state for 
the same crime, where in the majority - and it is the majority of these 
counties - we use life in prison without a possibility of parole," he said.

The moratorium was enacted in 2014, but just this past December, Inslee was 
confronted with the first death row inmate who had exhausted his appeals. 
Inslee chose to grant a reprieve of Clark Richard Elmore's death sentence. In 
1995 Elmore had raped the 14-year-old daughter of his girlfriend, drove a piece 
of metal through her head and crushed her skull. Inslee said he spoke with a 
number of parties involved in the homicide case before granting Elmore's 
reprieve.

"I talked to the prosecuting attorney about this, who prosecuted the case ... I 
talked to him; I talked to a family member. They had diverse viewpoints. And 
the prosecutor wanted the death penalty even after 20 years of appeals; the 
family member I spoke to did not think that was something that she wanted."

Inslee says he's hopeful Washington state lawmakers will pass a repeal to the 
death penalty, but in the meantime, some counties are taking the matter into 
their own hands.

In Seattle's King County, "they're no longer bringing the death penalty," 
Inslee said. "This is a county that could actually afford it, but the 
prosecuting attorney there declined to seek a death penalty in a vicious, 
multiple-victim murder."

Inslee says Washingtonians believe in making policy that is based on evidence - 
something he says is especially needed in the criminal justice system. "We need 
to spend more time listening to the the evidence of reality," Inslee said, 
"rather than just making emotional decisions. And I think that is the case in 
the death penalty."

(source:n opb.org)






USA:

Supreme Court Justice Ginsburg talks Congress, death penalty and "a meaningful 
life" at Stanford


What makes a meaningful life for U.S. Supreme Court Justice Ruth Bader 
Ginsburg?

"To put it simply, it means doing something outside yourself," she said Monday 
night at Stanford's Memorial Church, in conversation with the university's The 
Rev. Professor Jane Shaw, dean for religious life.

"I tell law students ... if you are going to be a lawyer and just practice your 
profession, you have a skill - very much like a plumber," she said. "But if you 
want to be a true professional, you will do something outside yourself ... 
something that makes life a little better for people less fortunate than you."

Welcomed with thunderous applause, she opened by reading from her book, citing 
relationship advice ("sometimes it helps to be a little deaf"), her 
father-in-law's career advice ("you will find a way"), raising children ("I 
returned to the law books with renewed will") and her devotion to her husband 
("without him, I would not have gained a seat on the U.S. Supreme Court.")

The 83-year-old did not volunteer her opinion about President Donald Trump's 
nomination of Colorado federal appeals court Judge Neil Gorsuch to the Supreme 
Court, nor the legal controversies over the administration's temporary 
immigration ban on seven Muslim-majority countries. Last summer she drew 
criticism, and later apologized, for saying she feared for the country and the 
court if Trump was elected.

But she mourned the loss of collegiality that was once part of Capitol Hill, 
and a cherished friendship with the conservative Sen. Orrin Hatch, R-Utah.

"I wish there was a way I could wave a magic wand and put it back when people 
respected each other, and voted for the good of the country and not just along 
party lines. Someday there will be great representatives who will say 'Enough 
of this nonsense. ... I hope that day comes when I'm still alive."

When asked what she would like to change: "the electoral college!"

She decried the death penalty, saying "If I were queen, there would be no death 
penalty," but praised the nation's recent reduction of executions.

The oldest justice by more than 3 years, and 1 of the 4 reliably liberal 
jurists on the court, a student teased her about eating more kale. Then she was 
asked: Who she would like to see eat kale? "Justice Kennedy!" she deadpanned.

A long line of students waited to ask questions. "It was such a pleasure to 
hear her go off script. I loved getting to hear from her more directly," said 
alumnae Eliza Ridgeway of Sunnyvale.

Ginsburg's lecture is part of a series created in memory of late Stanford law 
professor Harry Rathbun, who delivered his distinguished "Last Lecture" every 
year from the 1930s to the 1950s. In years in which a lecture is scheduled, the 
Office for Religious Life chooses a speaker to visit campus and talk about the 
various paths to building a meaningful life.

Previous iterations of the lecture featured former Secretary of State George 
Shultz, the 14th Dalai Lama, Oprah Winfrey and Ginsburg's former colleague on 
the Supreme Court, Sandra Day O'Connor. The lecture was established by The 
Foundation for Global Community.

She spoke fondly of former justice O'Connor, calling her "as close to being a 
big sister to me as one could wish for." O'Connor, who survived breast cancer, 
advised Ginsburg after chemotherapy treatment for colorectal cancer: "Be sure 
to get it for Friday so you can get over it during the weekend."

In a far reaching conversation, she cited music she couldn't live without: 
Mozart's "The Marriage of Figaro" and "Don Giovanni." She confided her 
childhood role models: Amelia Earhart and the fictional heroine Nancy Drew. She 
recounted a New Year's Eve dinner with late Justice Antonin Scalia, when her 
husband struggled to find a good recipe for wild boar.

She described her attitude toward combating cancer: "Never have a defeatist 
attitude ... and I'm going to surmount this." The most important person in her 
life? "My personal trainer," she joked. To the delight of the crowd, Ginsburg 
showed off her tote bag with the motto: "I dissent."

When asked, 100 years from now, how she would like to be remembered:

"That I was a judge who worked as hard as she could to the best of her ability 
- to do the job right."

(source: eastbaytimes.com)

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

Judge laments the whittling away of habeas corpus by high court


Stephen Reinhardt, 85, has been a judge on the U.S. 9th Circuit Court of 
Appeals for the last 37 years. An unabashed liberal, he once remarked, "I can't 
remember the last time I read 'justice' in a court opinion, except in front of 
someone's name." A former clerk gave him the nickname Chief Justice of the 
Warren Court-in-Exile.

I have read many Reinhardt opinions over the years, but a recent one on the 
state of federal habeas review in the U.S. is particularly significant. He 
laments how the Supreme Court has made habeas review absolutely toothless. 
Anyone involved in criminal law should make sure to read his concurrence in 
Curiel v Miller, 830 F.3d 864 (2016).

During the Warren Court era, habeas petitions offered state criminal defendants 
the opportunity to have federal courts correct erroneous state court 
interpretations of the U.S. Constitution. But the Burger and Rehnquist Courts 
worked hard to narrow the scope of habeas review. This culminated in the 1989 
decision in Teague v. Lane, 489 U.S. 288.

The court there held that a federal court in its habeas review was generally 
not allowed to apply "new rules" of constitutional criminal law of which the 
state courts could not have been aware.

In other words, a habeas court should not disturb a state criminal conviction 
unless it could show that the state violated a rule that was "dictated by 
precedent" that existed at the time the conviction became final.

This was the catalyst for Congress narrowing habeas review in the Antiterrorism 
and Effective Death Penalty Act of 1996. This law holds that a federal court 
can only disturb a state conviction if it "was contrary to, or involved an 
unreasonable application of, clearly established [f]ederal law, as determined 
by the Supreme Court of the United States."

Reinhardt complains that the Supreme Court's "increasingly restrictive 
interpretation of that provision has gone well beyond the face of the statute 
to virtually eliminate meaningful federal review."

His 1st criticism is that the Supreme Court has insisted that "clearly 
established [f]ederal law" can mean nothing short of a specific holding by the 
Supreme Court itself. As Reinhardt notes, these days the court only reviews 
about 80 cases a year. Moreover, many points of clearly established law never 
require Supreme Court holdings because they are uncontroversial.

In that case, "Although a constitutional violation may be clear, federal courts 
will often be unable to grant habeas relief as there is no 'clearly 
established' Supreme Court law governing the question certainly a 
counter-intuitive, if not a counterproductive, result."

Next, he points to the Supreme Court's crabbed interpretation of what is an 
"unreasonable application" of law. The Supreme Court has interpreted this to 
mean that habeas relief is not available if the holding is merely "wrong"; it 
must also be objectively unreasonable.

And the court has further defined this as meaning that habeas relief can be 
used only if there is "no possibility fair-minded jurists could disagree" that 
the state ruling conflicts with the Supreme Court???s holding.

Further, if the state court does not explain its reason for rejecting a 
petitioner's claim, the Supreme Court has held that the federal court must 
attempt, in Reinhardt's words, "to conjure up a plausible, though not 
necessarily correct, hypothetical basis for the decision."

This, Reinhardt notes, leads to the absurdity that "Even if every imagined 
basis that the federal court can think of is clearly incorrect, the court may 
still not grant relief so long as any of the reasons, while wrong, could be 
deemed 'reasonable.'"

Reinhardt also points out that all of this is compounded by the heavy caseloads 
carried by state appellate courts that often militate against extensive 
analysis of every claim.

The Supreme Court has even contended that this justifies further deference to 
state decisions. One Supreme Court opinion even stated that habeas should be 
reserved to correct only "extreme malfunctions" of the state court system.

This lead Reinhardt to boldly suggest state certification recommending 
non-AEDPA [Antiterrorism and Effective Death Penalty Act] review of certain 
state decisions. The rationale for the Supreme Court's extreme deference to 
state court criminal decisions lies in principles of comity and federalism.

Reinhardt basically asked whether a state Supreme Court could essentially waive 
this protection, suggesting that in some cases, the state Supreme Court might 
expressly relinquish the deference usually provided by AEDPA.

It might do this when it concedes that its decision could have benefited from 
more extensive review. There may be cases where a state court would welcome 
federal assistance to insure a just result.

Reinhardt also recommended that a state Supreme Court might certify entire 
categories of cases for this non-AEDPA federal review, which might include all 
death penalty and life-without-parole cases or certain classes of cases 
involving youthful offenders.

Reinhardt concedes that he cannot guarantee the U.S. Supreme Court would accept 
this concept of non-AEDPA certification by state courts.

But currently, a federal judge is constrained to say, in Reinhardt???s words, 
"I know this result is unfair, unjust and unconstitutional, but I have been 
told that I must nevertheless defer to the view of the state courts that may 
have had neither the time nor resources to fully review the constitutional 
errors involved."

Reinhardt's goal is to have the federal and state systems working together, not 
in opposition of each other, in order to guarantee that the Constitution is 
enforced in a way that provides justice.

Justice. Reinhardt's opinion is indeed one that uses the word in the true 
sense, other than a title before a person's name. Curiel provides food for 
thought for those of us despairing of the current state of habeas practice in 
our country.

(source: Timothy P. O'Neill, Law Bulletin columnist----Akron Legal News)