[Deathpenalty] death penalty news----USA

[Rick Halperin]

July 30




USA:

Killeen: Men convicted in fiery deaths of pastor, wife now face execution



Thursday's order by Attorney General William Barr clearing the way for the 
federal government to execute condemned prisoners means that 2 area men 
convicted of the fiery murders of a pastor and his wife 20 years ago are back 
on track for a trip to the federal death chamber.

No federal executions have taken place in the U.S. since 2003.

Christopher Andre Vialva, 39, and Brandon Bernard, 38, were sentenced to death 
in Waco's federal district court, for the June 20, 1999 murders of Iowa pastor 
Todd Bagley and his wife Stacey Bagley.

Both men currently are held on death row at the federal prison in Terra Haute, 
Ind., where all federal death row prisoners are held.

"It certainly re-engages the issue," Daryl Fields, public information officer 
for the U.S. Attorney's Office, in San Antonio, said Friday by telephone.

The order applies to any federal court sentence of death, but there was a 
question Friday if the order would also apply to death penalties imposed by 
military courts martial, such as in the case of Fort Hood mass killer Nidal 
Malik Hasan.

"It hasn't gotten down here yet," Christopher Haug, media spokesman for III 
Corps and Ft. Hood said Friday.

"We'll (Army lawyers) will have to review it and see if it applies to cases 
tried under UCMJ (the Uniform Code of Military Justice)," Haug said.

The military has not carried out an execution since 1961.

Todd Bagley died of a gunshot, but his wife Stacy, who also had been shot, died 
of smoke inhalation, which means she was alive in the trunk of the couple’s car 
when Bernard, in an effort to hide evidence, set the vehicle on fire.

The trial was held in federal court because the crime happened on Fort Hood.

Thursday Barr directed the Justice Department to adopt a new rule for carrying 
out the death penalty, which would restore executions in the federal system for 
the 1st time in 16 years.

"We owe it to the victims and their families to carry forward the sentence 
imposed by our justice system," Barr said.

"The question is, how fast can they do it," Waco attorney Stan Schwieger said.

Schweiger said Barr's order is just the first step in a very long and detailed 
process that has to play out before executions could actually begin.

"There is an administrative procedure that has to take place that involves 
publication in the Federal Registry and an opportunity for people to make 
comments and all of that has to happen before any executions could begin.

"It's just the 1st step in a very long procedure and I hope they don't 
succeed," Schwieger said.

The Federal Bureau of Prisons, immediately upon Barr's order, set execution 
dates for 5 men on federal death row, all of whom already have exhausted their 
appeals and all of whom were convicted of murdering children in especially 
violent crimes.

4 of the 5 also killed adult victims.

Those executions are to be carried out in December and January, Barr's order 
said.

KWTX contacted the Bureau of Prisons to learn if execution dates for either man 
convicted here had been set but has not yet received a reply.

Both Vialva and Bernard filed federal appeals, saying the judge who oversaw 
their trials was not competent to do so.

But in September 2018, the 5th U.S. Circuit Court denied the appeal from 2 
Killeen former gang members.

Since the Supreme Court allowed the death penalty to resume in the mid-1970s, 
after an earlier ruling had declared its application unconstitutional, the 
federal government has executed only three inmates, including Timothy McVeigh, 
who bombed the Oklahoma City federal building in 1995.

The last federal execution was March 18, 2003 when inmate Louis Jones, Jr., 44, 
put to death after his conviction of rape resulting in death and murder in 
federal district court in Lubbock in 1999.

He was a former soldier and was found guilty in the beating death of USAF Pvt. 
Tracie Joy McBride, 18, from San Angelo's Goodfellow Air Force Base.

(source: KWTX news)

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

I’m a Republican and I Oppose Restarting Federal Executions----More and more, 
conservatives don’t trust the government to get capital punishment right.

A long-held stereotype is that conservatives in this country favor capital 
punishment, while liberals oppose it. But that doesn’t accord with reality: In 
recent years, more conservatives have come to realize that capital punishment 
conflicts irreconcilably with their principles of valuing life, fiscal 
responsibility and limited government. Many conservatives also recognize that 
the death penalty inflicts extreme and unnecessary trauma on the family members 
of victims and the correctional employees who have the job of taking the 
prisoner’s life.

It’s been 16 years since the federal government carried out an execution. Last 
week, however, the Justice Department announced that it had scheduled 
executions in December and January for 5 inmates. As a lifelong conservative, I 
believe this is a step in the wrong direction. The problems that have plagued 
the death penalty at the state level — the risk of executing the innocent, 
arbitrariness and bias, high costs, a lack of deterrence and the failure to 
deliver “closure” to victims’ families — exist at the federal level too.

In federal cases, as in the states, we have been unable to eradicate 
arbitrariness from the death penalty lottery. Whether a defendant receives a 
death sentence is often more dependent on what state he is prosecuted in than 
on the relative seriousness of his offense. Like state death sentences, federal 
death sentences are geographically concentrated. Just three states — Missouri, 
Texas and Virginia — are responsible for almost half of all federal death 
sentences.

Contrary to what many might think, the federal death penalty is not reserved 
for a small number of uniquely federal crimes. Only one person is on federal 
death row for terrorism. No one is there for espionage or treason. Every person 
on death row in the federal system could have been prosecuted in the state 
courts; some of them already had been, and prosecutors pursued death sentences 
in federal court only after state juries had returned prison sentences.

Punishment for crime has historically been a state prerogative. Yet many of the 
people on federal death row are there for crimes that have little to do with a 
real federal interest. For example, some were sentenced under a carjacking 
statute that invokes federal jurisdiction based on the vehicle having been 
shipped or manufactured in the stream of interstate or foreign commerce.

Some prisoners are under a federal death sentence because the crime occurred on 
federal land. But this too smacks of arbitrariness: In one case, if the crime 
had happened less than 250 feet away, it would not have occurred in a federal 
forest and the prisoner would be serving a sentence of life without parole 
today instead of awaiting execution.

Another issue that is wrongly viewed as conservative-versus-liberal is that of 
racial justice. Conservatives believe that all people should enjoy equal rights 
and opportunities, regardless of race or ethnicity. In this respect, too, the 
death penalty falls far short of the mark. Over 1/2 of the people on federal 
death row are people of color. What’s more is that every federal death sentence 
handed down in Virginia and in the Eastern District of Missouri have been 
imposed on people of color; that’s true in Texas for 75 % of cases.

Perhaps most worrisome is that errors in the federal system are less likely to 
be corrected. State prisoners have access to both appellate and post-conviction 
proceedings in state court and then can seek habeas corpus review in the 
federal courts. In contrast, federal prisoners are allowed only a single 
post-conviction proceeding after direct appeal, and have no guarantee of 
appellate review should their post-conviction claims be denied.

Since they have less opportunity for post-trial review than their state 
counterparts, federal defendants are more at risk of wrongful convictions and 
death sentences. Additionally, prisoners who have intellectual disabilities and 
should have been excluded from the death penalty at trial still languish on the 
federal death row, because the courts have refused to consider their claims.

And let’s be honest: Few conservatives trust the government to get it right. 
Since 1973, 166 people on state death rows have been exonerated and freed. 
Conservatives are now in the vanguard of the movement to end the death penalty. 
A recent report by Conservatives Concerned About the Death Penalty showed a 
sharp increase in the number of state Republican lawmakers sponsoring repeal 
legislation; so far this year, such bills have been introduced in 11 states.

As a nation, we are moving away from the death penalty. Last year was the 4th 
in a row that the country carried out fewer than 30 executions. All 25 of those 
came from only 8 states, with more than 1/2 of them from Texas alone. New death 
sentences are down 60 % since 2000.

The federal government should not now lead the country in the opposite 
direction. With life-without-parole sentences and high-security prisons to keep 
the public safe, Washington should stay out of the execution business.

(source: Opinion; Jared Olsen is a member of the Wyoming House of 
Representatives----New York Times)

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

Despite Faulty Drugs & Racist Implementation, Trump Is Bringing Back the 
Federal Death Penalty



Attorney General William Barr announced Thursday that the federal government is 
resuming the death penalty after nearly 2 decades. The execution of 5 death row 
prisoners were immediately ordered beginning in December. There are currently 
62 prisoners on federal death row, including white supremacist Dylann Roof, who 
murdered nine black worshipers at the historic Emanuel AME Church in June 2015, 
and Boston Marathon bomber Dzhokhar Tsarnaev. Federal prosecutors are expected 
to push for the death penalty in both cases. This news comes despite a growing 
movement opposing the death penalty in the United States. The United Nations 
has called for a global ban on the practice, and Amnesty International calls it 
“the ultimate cruel, inhuman and degrading punishment.” We speak with Ruth 
Friedman, director of the Federal Capital Habeas Project, which coordinates 
representation, represents defendants and monitors federal death row.

AMY GOODMAN: The federal government is resuming the death penalty after a more 
than 15-year moratorium. Attorney General William Barr announced the news 
Thursday, immediately ordering the execution of five death row prisoners 
beginning in December. More are expected to be scheduled. In a statement, 
Attorney General Barr said, quote, “The Justice Department upholds the rule of 
law—and we owe it to the victims and their families to carry forward the 
sentence imposed by our justice system,” he said.

There are currently 62 prisoners on federal death row, including white 
supremacist Dylann Roof, who murdered nine black worshipers at the historic 
Emanuel AME Church in June 2015, and Boston Marathon bomber Dzhokhar Tsarnaev. 
Federal prosecutors are expected to push for the death penalty in both cases. 
The federal government hasn’t put a prisoner to death since 2003.

This news comes despite a growing movement opposing the death penalty in the 
United States. Advocates say they’ll fight the decision in courts, calling the 
death penalty racist and immoral. 2020 candidates, including Senator Kamala 
Harris, Bernie Sanders, Elizabeth Warren, all have condemned the announcement. 
Joe Biden announced his opposition to the death penalty earlier this week.

Executions will be done via lethal injection, no longer a three-drug cocktail, 
but one drug, pentobarbital. A number of states, including Texas and Ohio, have 
used the drug to kill prisoners, but pharmaceutical companies have in recent 
years objected to their products being used for capital punishment. It’s not 
known where the drug would be obtained for these federal executions.

Experts say capital punishment does not help deter homicides and that errors 
and racism in the criminal justice system extends to those sentenced to death. 
According to the Death Penalty Information Center, more than 160 people who had 
been wrongly convicted and sentenced to death have been exonerated since 1973.

The death penalty has been abolished in 106 countries, with another 28 having 
moratoriums or effectively not using the practice. The United Nations has 
called for a global ban on the practice, and Amnesty International calls it 
“the ultimate cruel, inhuman and degrading punishment.”

Well, for more, we go to Ruth Friedman, director of the Federal Capital Habeas 
Project, which coordinates representation, represents defendants and monitors 
federal death row.

Welcome to Democracy Now!, Ruth Friedman. Can you respond to this announcement? 
Were you surprised by this announcement by the attorney general, Barr, 
yesterday?

RUTH FRIEDMAN: We were absolutely surprised. We learned about it at the same 
time the rest of the public did.

It’s important to know the government has had eight years to come up with an 
execution protocol. There’s been ongoing litigation over lethal injection, 
which is true around the country, we’ve seen in all the states. And it’s been 
true in the federal government. And the government announced eight years ago it 
did not have the drugs necessary to carry out an execution. And as part of 
litigation, it said, “We will let the court know we are working on it.” And 
every few months they gave an update to the court, saying, “We’re not ready. We 
don’t have a protocol. We don’t have a protocol.”

Yesterday they announced a protocol. And at the same time, instead of going 
through the judicial process, they set execution dates on five individuals who 
were not part of that litigation. And therefore, they were able to avoid 
judicial scrutiny of what they were doing. They dropped it suddenly yesterday, 
and we were very surprised to see it.

AMY GOODMAN: So, talk about the people immediately not only saying they’re 
reinstating the federal death penalty, but that five people would be scheduled 
for execution immediately, starting, I think, in December. And then this issue 
of there’s been a three-drug cocktail used, which has often stopped states from 
executing prisoners, because they can’t get the drugs, and now just saying they 
will use one drug, pentobarbital.

RUTH FRIEDMAN: And the real problem there is the same. If you avoid any 
judicial scrutiny or any public awareness of where that drug came from, we have 
no idea. We don’t know if it was imported. We don’t know if it was 
manufactured. There’s no sunlight in the process. There’s no transparency. They 
did not go through the Administrative Procedures Act, which is just what this 
kind of regulation was designed for, so that the public would have some idea of 
what kind of drug they were using, particularly after such a hiatus.

And again, they went after five people for whom they did not have stays of 
execution. As part of this ongoing, orderly litigation in the district court in 
the District of Columbia, they were litigating this issue, and they were 
saying, “We’re not ready. We’re not ready.” Instead of sticking with that 
litigation, they went around it. And it’s an end run around the court. We don’t 
know where this drug came from.

AMY GOODMAN: And—

RUTH FRIEDMAN: Several months ago, the—

AMY GOODMAN: Go ahead.

RUTH FRIEDMAN: Go ahead. Several months ago, the federal government released, 
the Department of Justice released, an opinion from the Office of Legal Counsel 
saying that drugs used in executions are not drugs, and therefore they’re not 
subject to FDA rules and scrutiny. And so, therefore, we don’t know anything 
about the drugs that they’re planning to use.

AMY GOODMAN: So, talk about racial bias and the death penalty. According to the 
Death Penalty Information Center, almost 42% of death row—federal death row 
prisoners are black, when the overall population is 14%. And we know, of 
course, that if a white person is killed, the perpetrator is far more likely to 
get the death penalty.

RUTH FRIEDMAN: That’s exactly right. And it shows one of the ways in which the 
federal death penalty—the problems with the federal death penalty are the same 
as those that we’ve seen in the states for years now, and what is leading many 
people in this country, including conservatives, to turn away from the use of 
the death penalty. The federal death penalty is no different. It suffers from 
the exact same flaws, including racial discrimination. In some ways, the 
federal government is worse than that’s true of many of the states. What you 
see is an absolute overabundance, that you were pointing to, of people of 
color, particularly black men. The same kind of issues that plagued or that led 
this country to come up in the ’90s with policies that people are now turning 
away from, that led to mass incarceration, and particularly mass incarceration 
of African-American men, are seen just as well in the death penalty and in the 
federal death penalty.

And I think people are starting to say, “Wait a second. How does this happen?” 
And I think many people have thought that the federal death penalty somehow is 
the gold standard of capital punishment systems. And that’s simply not true. 
When you start to look at it, it suffers from the same flaws. One of those is 
racial bias. Another of those is having lawyers who are not qualified, are not 
able to have the time or the resources or the knowledge that these kind of 
cases require. And so you see problems in these cases that you see all over the 
country. You see the use of junk science. You see the use of false 
representations by the government, government misconduct. And I think you’re 
going to see more and more of that coming to light now that the public is 
getting a spotlight on the federal death penalty.

AMY GOODMAN: President Trump has repeatedly pushed for increasing the use of 
capital punishment, including as a penalty for drug offenses. This is Trump 
speaking last year in New Hampshire.

*PRESIDENT DONALD TRUMP: But the ultimate penalty has to be the death penalty. 
… Unless you have really, really powerful penalties, led by the death penalty, 
for the really bad pushers and abusers, we are going to get nowhere. And I’m 
telling you, we are going to get somewhere.

AMY GOODMAN: And last December, Trump said he hoped China would employ the 
death penalty against traffickers of the synthetic opioid fentanyl. Ruth 
Friedman, your response?

RUTH FRIEDMAN: I think this is an example of just how inherently political a 
tool the death penalty is. If you’re going to have the awesome power to make 
these decisions and to say you’re going for the worst of the worst, then you 
have to have a fair process, with fair lawyers, with lawyers who are able to 
litigate these cases, and you can’t lie, and you can’t use junk science to put 
people on the death row. In our death row, we have three states that contribute 
almost half of all death sentences. If this weren’t a political system at all, 
why would that be true? Do Virginia, Texas and Missouri really have the worst 
crimes in the entire country, such that there are 50 states, but the three of 
them contribute almost half of the death sentences? These decisions are made on 
the basis of politics. And I think that kind of grandstanding is an example of 
it.

AMY GOODMAN: Speak–

RUTH FRIEDMAN: We can see that—please, go ahead.

AMY GOODMAN: Go ahead.

RUTH FRIEDMAN: I was going to say, I think what’s used to justify these kind of 
statements is that it’s a deterrent; we are going along with the wishes of the 
victim’s family. And I think every single study that has looked into this says 
it is not a deterrent. You are not making people safer. It’s the use of money, 
in fact, toward putting people on death row and keeping people on death row, 
which we know is much more expensive, that could be used to solving unsolved 
crimes, looking at untested rape kits and the like, which is, again, why many 
people are turning away from this. And as to victims’ families, you will find 
there’s a big, big difference among families about what they want. And the 
federal government does not always follow those wishes.

AMY GOODMAN: Since 1963, the federal government has executed three people, 
including Timothy McVeigh, who was put to death in June 2001 for the Oklahoma 
City Federal Building bombing that killed 168 people. I want to turn to Bud 
Welch, who became a leading anti-death penalty advocate after losing his 
daughter Julie in the 1995 Oklahoma City bombing. I interviewed Bud Welch on 
Democracy Now! in 2015.

BUD WELCH: The punishment of the death penalty is nothing more than revenge. 
And I went through almost a year of revenge after Julie’s death, and—revenge 
and hate. And one cannot go through the healing process at all when you’re 
living with revenge. And that’s all the death penalty is, is revenge. It is not 
a deterrent. It doesn’t, as the media says, bring closure to family members.

There are a lot of victims’ family members here in Oklahoma City that I know, 
because I spent 13 years on the board of directors of the Oklahoma City 
National Memorial, and they were looking for the word “closure” at the time 
McVeigh was executed, on June the 11th of 2001. And I had been telling many of 
those people that the day that we would take Tim McVeigh from his cage and we 
would kill him would not be part of their healing process. And they learned 
that after his death. And many of those people have come forward now and said, 
“It was a mistake for us to kill Tim McVeigh,” because what it did was 
revictimize them all over again.

AMY GOODMAN: Again, that was Bud Welch, who lost his daughter Julie in the 
Oklahoma City bombing, speaking out against the death penalty. Ruth Friedman, 
can we end by you talking about exonerations, people who have been exonerated 
from death row, over 160 people?

RUTH FRIEDMAN: Absolutely. If you look at this as a government program, would 
we ever be as comfortable saying we can make this many mistakes and yet 
continue on in the same vein? And you’re going to see more and more of that. 
And that, again, is why people are turning away from it. They are recognizing 
that we make too many mistakes. We can’t trust our governments with these kind 
of decisions. It’s also why we’re an outlier in the world.

And the federal government, unfortunately, is also going to become an outlier 
in the country. You see death sentences going way down, because—in large part, 
I think, because of the exonerations and people understanding that, “Wait a 
second. That person had a trial, that person had an appeal, and yet we still 
got it wrong.” And the same can be true about sentences. We can make mistakes. 
And I think people are coming to see that more and more. Unfortunately, while 
the rest of the world and the rest of the country is moving in one direction, 
the federal government is moving in another. And that is extremely unfortunate.

AMY GOODMAN: I mean, this country was going in the direction of overturning the 
death penalty overall, state after state. Can you give us the figures on this 
and what this means, reinstating the federal death penalty but perhaps states 
say no?

RUTH FRIEDMAN: I think it shows, again, why this has become a political 
process, or always has been a political process. When you look at the federal 
death penalty, as you said, the states are moving away. And we’ve had state 
legislatures that are dominated by Republican or conservative legislators, that 
are also saying, “We don’t want this. It’s not good for our community. It’s not 
the way we want to be spending our resources. Or it’s not how we think we make 
our citizens safer.”

So, instead, you have the federal government moving into some of these areas 
and saying, “Well, we’re going to take a case.” So you have people on federal 
death row, for example, who were already tried in the state courts, were 
already serving very long sentences, but the federal government wanted to step 
in. It’s another misconception and myth about the federal death penalty that it 
is somehow these unique federal interests, where people are there for treason 
and spying and the like, when it’s not true. Everybody could have been 
prosecuted in state court who’s on federal death penalty and—is on the federal 
death row. And very often the connection between a federal interest is 
extremely attenuated. And I think people would very be surprised to learn about 
that.

AMY GOODMAN: Just 30 seconds. The people that Barr has said they will execute, 
they will execute more people—they will try to—five prisoners, than have been 
executed on federal death row in over 50 years.

RUTH FRIEDMAN: Well, you have to wonder, as I said: Why did they choose five 
people who were not—who did not have stays of execution, who were not in a 
position to be part of a challenge to the method of execution, to how the 
federal government was planning to use its awesome power? I think that was a 
cynical, end-run decision, keeping it out of the Administrative Procedures 
Act’s review process, keeping it out of the court’s scrutiny. I think that’s 
how those people were chosen, which, again, is—that’s not good government. 
That’s not transparency. That’s not a willingness to say this is how we do 
things, this is how we make decisions. It’s a political response, and that is 
extremely unfortunate for all of us.

AMY GOODMAN: Ruth Friedman, we want to thank you for being with us, director of 
the Federal Capital Habeas Project, which coordinates representation, 
represents defendants, monitors federal death row.

(source: democracynow.org)

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

The death penalty is red tape threaded into a noose----On conservative grounds 
it is no longer defensible



5 men face a date with the needle after attorney general William Barr ordered 
the first federal executions in 16 years. In response, liberals have resorted 
to the sort of self-defeating rhetoric that has plagued the abolitionist 
movement. Rolling Stone’s Andrew Cohen complains about the ‘dripping scorn for 
the condemned’ in the Justice Department’s press release. The New Republic’s 
Matt Ford accuses AG Barr of ‘making every American citizen an equal 
participant in the government’s premeditated taking of human life’. With arctic 
detachment, he adds: ‘To make its decision more palatable, the Justice 
Department chose 5 prisoners who committed crimes against children or the 
elderly.’

The crimes themselves weren’t all that palatable. White supremacist Daniel Lee, 
along with another offender, killed a couple and their eight-year-old daughter 
by duct-taping plastic bags over their heads, weighting them down with rocks 
and throwing them in a river. Lezmond Mitchell and his accomplice stabbed a 
woman 33 times and slashed her granddaughter’s throat twice before dropping 
20-pound rocks on the 9-year-old’s head. Wesley Purkey murdered an 80-year-old 
woman and kidnapped, raped and murdered a 16-year-old girl. Alfred Bourgeois 
tortured and murdered his 2-year-old daughter, while meth kingpin Dustin Honken 
and his girlfriend murdered 2 federal witnesses, plus the girlfriend and 2 
young daughters of 1 of the men.

None of these men is sympathetic, few will mourn them, and yet conservatives 
should avoid their own emotiveness trap. Seventy-seven per cent of Republicans 
and 73 % of white evangelicals support the death penalty. It is almost a 
touchstone conservative issue, alongside guns, taxes and (ironically) abortion, 
but the orthodox position is coming under challenge from the right. Instead of 
familiar arguments about racial and class bias, inadequate legal representation 
and outdatedness, Republican dissenters view the death penalty as another 
failed government program.

Richard Viguerie, a founding father of the conservative movement, contends:

‘Conservatives have every reason to believe the death penalty system is no 
different from any politicized, costly, inefficient, bureaucratic, 
government-run operation, which we conservatives know are rife with injustice. 
But here the end result is the end of someone’s life. In other words, it’s a 
government system that kills people.’

Viguerie is far from the only right-wing skeptic. President Trump’s attorney 
Jay Sekulow, conservative blogger Michelle Malkin and National Review scribe 
Ramesh Ponnuru all reject execution on right-wing grounds, as do Tucker 
Carlson, Oliver North, former RNC chairman Michael Steele and Turning Point’s 
Charlie Kirk.

Hannah Cox of Conservatives Concerned about the Death Penalty says:

‘A growing number of conservative state lawmakers are driving that trend 
because they realize that capital punishment goes against their principles of 
valuing life, fiscal responsibility and limited government, and that the death 
penalty does nothing to make the public safer.’

Fiscal conservatives are alarmed that, even as fewer death sentences are 
carried out, the cost of capital punishment continues to rise. A 2011 study of 
California’s death row — the largest in the country — found that the death 
sentence regime cost the state $184m more annually than an equivalent 
life-without-parole system. In Oklahoma, which has conducted the third-highest 
number of executions since 1976, death sentences cost taxpayers 3.2 times as 
much as life sentences and capital appeals 5-to-6 times as much as life 
appeals. America’s 5th-largest death row, Pennsylvania, has put just three of 
its inmates to death since 1978, at an astonishing cost of $272m per execution.

Runaway spending has predictably led to excessive bureaucracy and inefficiency 
but the most wasteful aspect of all is that, however much money is spent on 
capital punishment, there is little evidence it works. The South and the 
Midwest, the 2 regions that carry out the most executions, have the highest 
murder rates. This leads liberals to claim there is no deterrent effect to 
capital punishment. However, the Committee on Deterrence and the Death Penalty 
concluded after a comprehensive literature review that ‘research to date on the 
effect of capital punishment on homicide is not informative about whether 
capital punishment decreases, increases, or has no effect on homicide rates’. 
For abolitionist conservatives, the death penalty should be treated like any 
other government program that cannot prove its effectiveness.

Where liberal critiques of execution tend to focus on the condemned, new 
evidence is coming to light about the impact on victims’ families. Capital 
punishment advocates sometimes justify it as a means of bringing ‘closure’ to 
these ‘co-victims’. However, a University of Minnesota study found that only 
2.5 % reported experiencing closure as the result of their relative’s killer 
being put to death. Researchers also learned that co-victims suffered ‘feelings 
of emptiness’ when execution failed to achieve a restorative effect.

The tension that support for capital punishment brings to a conservative 
movement heavy with rhetoric about the sanctity of human life has become 
insupportable for some right-wingers. Conservative objections extend beyond the 
possibility that innocents will be executed (166 death row inmates have been 
exonerated since 1973) to questions of inviolability and grace. Sekulow 
reasons: ‘Who amongst anyone is not above redemption? I think we have to be 
careful in executing final judgment… I think you are short-cutting the whole 
process of redemption.’ Anti-abortion activist Abby Johnson asserts: ‘[L]ife 
always has value. For all who are pro-life, we are called to oppose all threats 
to life from conception to natural death, including the death penalty.’ A 
government that has no business directing taxpayers’ money to Planned 
Parenthood has no business pumping it into lethal injection chambers, the 
abortion clinics of the criminal justice system.

The 1st of the 5 child-killers is scheduled to die on December 9, though each 
case could end up back in the appeals courts first, adding further cost to a 
process that cannot be proved to deter similar crimes, has wrongly condemned 
scores that we know of, and that entrusts the selection and administration of 
death to an inefficient and dysfunctional bureaucracy. The death penalty is red 
tape threaded into a noose. Conservatives may defend it on retributivist, 
desert or communicative grounds, but on conservative grounds it is no longer 
defensible.

(source: spectator.us)

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

Symposium: The Supreme Court turns against novel or late-breaking execution 
challenges

[Edmund LaCour is the solicitor general of Alabama.]



The Supreme Court’s decisions in this term’s death penalty cases suggest that 
the court is more willing than before to defer to the states’ judgments about 
how the death penalty should be carried out and who should be subjected to it, 
and that inmates challenging their death sentences should bring their 
challenges without delay.

Justice Anthony Kennedy had been the crucial fifth vote on several of the 
Supreme Court’s recent decisions to declare certain groups of defendants to be 
beyond the scope of certain punishments. For example, in the 2008 case Kennedy 
v. Louisiana, he wrote the opinion for a five-justice majority that held that 
the Eighth Amendment prohibited the death penalty for child rapists, and in the 
2012 case Miller v. Alabama he joined another five-justice majority that held 
that mandatory sentences of life imprisonment without the possibility of parole 
could not be imposed on minors who committed murder. When Justice Brett 
Kavanaugh replaced Kennedy, some court-watchers predicted that this trend of 
broader Eighth Amendment readings would end, a prediction supported by the 
court’s decision in Madison v. Alabama.

Vernon Madison suffers from dementia and episodic amnesia that he claims have 
erased his memory of the murder for which he was sentenced to death. In 2017, 
the U.S. Court of Appeals for the 11th Circuit granted Madison habeas relief on 
the theory that because his mental illness left him no memory of his capital 
offense, he cannot rationally understand the connection between his crime and 
his execution. The Supreme Court summarily reversed, concluding that the state 
court’s contrary judgment should not have been vacated under the deferential 
standards of the Antiterrorism and Effective Death Penalty Act of 1996. But 
Justice Ruth Bader Ginsburg (joined by Justices Stephen Breyer and Sonia 
Sotomayor) filed a concurrence stating that the issue should be reviewed when 
presented outside the AEDPA context.

Madison returned to state court, lost again and then filed a petition that was 
granted in February 2018. But at oral argument, Madison’s counsel largely 
conceded that the state could execute a defendant if his disability caused him 
only to lose the memory of committing his capital offense. Madison instead 
argued that the state court had misapplied precedent that bars states from 
executing inmates who cannot rationally comprehend why they are being punished.

The Supreme Court, in a 5-3 decision authored by Justice Elena Kagan (and 
joined by Chief Justice John Roberts and Ginsburg, Breyer and Sotomayor) ruled 
for Madison on that narrow ground. Though three justices had earlier expressed 
interest in Madison’s broader question, the court now unanimously agreed that 
memory loss alone is not enough to render someone incompetent to be executed. 
The court, however, was “at least unsure” whether the state court had applied 
precedent correctly and it therefore remanded the case. As Justice Samuel Alito 
noted in dissent, the court does not usually grant certiorari to decide such 
fact-bound questions. Thus, it is possible that after Kennedy retired, Madison 
lacked a path to a broader victory, and a majority coalesced around the court’s 
case-specific ruling.

Bucklew v. Precythe was this term’s other argued Eighth Amendment challenge to 
the death penalty, and it too suggests that the Supreme Court is unlikely to 
give that amendment a broader reading in the coming years. In two earlier 
cases, 2008’s Baze v. Rees and 2015’s Glossip v. Gross, the court set forth a 
two-step test for inmates challenging their method of execution as cruel and 
unusual. They need to show both (1) that the proposed method entails a 
substantial risk of severe pain and (2) that there is a known and available 
alternative method of execution that entails a reduced risk of pain. Russell 
Bucklew argued that this analysis should apply only to facial challenges, not 
to his as-applied challenge. Justice Neil Gorsuch’s opinion for the 5-4 
majority rejected that argument, holding that the Baze-Glossip test applies to 
as-applied challenges, even when an inmate’s unique circumstances mean that he 
is likely to suffer significant pain.

The Supreme Court also decided two cases without argument, both of which 
involved the court’s 2017 decision in Moore v. Texas, a 5-3 decision in which 
Kennedy joined the court’s four more liberal justices to reverse a Texas court 
over how it assessed whether an inmate had intellectual disabilities that made 
him ineligible for the death penalty. In Shoop v. Hill, a unanimous court 
reversed the U.S. Court of Appeals for the 6th Circuit for relying on Moore to 
vacate a state court decision that was issued years before Moore had been 
decided. And in Moore v. Texas II, Roberts and Kavanaugh joined the four more 
liberal justices to summarily reverse a Texas court. Though Roberts had 
dissented in Moore I, he agreed that the lower court failed to apply Moore I, a 
sign that he is not eager to pare back Eighth Amendment holdings, even if he is 
not eager to expand them.

Beyond merits cases, the Supreme Court drew attention for its handling of 
several last-minute attempts to stay impending executions. First was Dunn v. 
Ray. Less than two weeks before his scheduled execution, Domineque Ray, who was 
Muslim, sued Alabama arguing that it violated the establishment clause by 
including a state-employed chaplain, who is Christian, as part of the execution 
team in the chamber during executions. Ray also raised a Religious Land Use and 
Institutionalized Persons Act claim arguing that he should be allowed an imam 
in the chamber. The state agreed to exclude the chaplain from the chamber, and 
the district court denied Ray’s stay request. But the day of Ray’s execution, 
the 11th Circuit entered a stay. Late that night, the Supreme Court, by a 5-4 
vote, vacated that stay, holding that Ray had waited too late to seek relief. 
Kagan’s dissent decried the majority’s decision as “profoundly wrong,” arguing 
that Ray had not unduly delayed presenting a strong establishment clause claim.

The justices continued to spar over last-minute stay requests. In Bucklew, 
Gorsuch’s majority opinion and Sotomayor’s dissent debated both Ray’s case and 
the broader issue of how the court should approach late-filed challenges. The 
majority’s position was clear: “Last-minute stays should be the extreme 
exception, not the norm.”

The Supreme Court dealt with these issues again in 2 stay requests related to 
Christopher Price’s challenge to Alabama’s lethal-injection protocol. In 2018, 
the state passed a law that authorized nitrogen hypoxia as a method of 
execution and gave inmates until June 30, 2018, to elect it as their method of 
execution. While many inmates elected nitrogen, Price did not. In January 2019, 
two weeks after the state moved to set an execution date, Price challenged 
Alabama’s lethal injection protocol, proposed nitrogen hypoxia as an 
alternative and sought a stay.

The district court concluded that Price had failed to show that nitrogen 
hypoxia was practically available because Alabama has not yet determined how to 
use that method safely. The 11th Circuit affirmed, but on alternative grounds, 
declaring hypoxia to be practically available because the state had statutorily 
authorized it, but finding Price’s evidence that hypoxia would be less painful 
insufficient because he cited a draft report. The next day, just hours before 
his execution, Price filed a new stay request that included the report’s final 
version. The district court issued a stay, and the 11th Circuit affirmed. The 
Supreme Court, by a 5-4 vote, vacated the stay, holding that Price’s request 
was untimely. Because the court’s order did not issue until 2:30 a.m., the 
state’s execution warrant expired, meaning the execution did not go forward. 
Breyer argued in dissent that the justices should have waited to discuss such 
an important issue, even if that delay would halt Price’s execution. The next 
month, Justice Clarence Thomas (joined by Alito and Gorsuch) used the court’s 
denial of a different cert petition filed by Price as an avenue for responding 
to Breyer’s dissent, indicating a strongly felt need to “set the record 
straight.” Alabama later obtained a new execution warrant for Price, no court 
issued a stay, Breyer again dissented and Price was executed.

There was one notable exception to the Supreme Court’s general unwillingness to 
grant last-minute stays. Texas, like Alabama, has state-employed chaplains who 
have been present in the execution chamber for executions. None of the 
chaplains, however, was Buddhist, and Patrick Murphy requested that Texas allow 
a Buddhist priest in the chamber for Murphy’s execution. About a month after 
deciding Ray’s challenge, the court granted a stay in Murphy’s case over a 
dissent from Alito (joined by Thomas and Gorsuch). Kavanaugh (joined by 
Roberts) later issued an opinion explaining his view that Murphy had raised a 
strong equal-treatment claim that Ray had failed to raise, and that Murphy made 
his request of Texas earlier than Ray had of Alabama. Alito, however, would 
have denied the stay request as dilatory.

Looking to next term, the Supreme Court has docketed a few cases that will have 
some effect on death penalty litigation, including McKinney v. Arizona, which 
concerns (1) whether courts that are correcting a defendant’s sentence must 
apply current law, and (2) whether resentencing must be performed in the trial 
court. But the court is unlikely to take cases that seek to expand its Eighth 
Amendment precedents and will likely remain skeptical of last-minute attempts 
to halt executions.

(source: scotusblog.com)

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

With Federal Executions Looming, the Democrats’ Death Penalty Legacy Is Coming 
Back to Haunt Us



When Attorney General William Barr announced last week that the Trump 
administration would restart executions after more than a decade and a half, it 
was news that capital defense attorneys had been dreading for years. “It was 
like a gut punch,” said Indiana federal public defender Monica Foster, who got 
the email just as she was about to visit a client at the federal supermax 
prison in Florence, Colorado.

As word spread, attorneys and advocates moved past the shock and into action. 
“We were always prepared for this,” Madeline Cohen, a Boulder-based veteran 
capital defense lawyer, said on Thursday night, after a long day spent fielding 
phone calls, including from clients. “We’ve been prepared for this since the 
beginning of the administration.”

Though they are scattered across the country, the lawyers who represent people 
on federal death row are part of a close-knit legal community. After the 2016 
election — and Donald Trump’s choice of Jeff Sessions as attorney general — 
many had braced themselves for the U.S. government’s execution machinery to 
restart. As time passed, the lawyers kept their heads down, focusing on their 
clients and cautious not to make public waves. But the looming threat was never 
far from anyone’s mind.

The de facto moratorium on federal executions could be traced to problems with 
lethal injection that have destabilized the death penalty for years. The last 
execution at the federal supermax prison in Terre Haute, Indiana, was carried 
out in 2003, using the prevailing formula at the time: a three-drug protocol 
starting with the anesthetic sodium thiopental, followed by a paralytic to stop 
respiration, and culminating in a fatal dose of potassium chloride, to cause 
cardiac arrest. In 2005, three men on federal death row challenged the method 
as cruel and unusual in D.C. District Court, providing numerous examples of 
executions dating back to the 1980s that had caused visible suffering. The 
lawsuit also raised questions unanswered by the government’s protocol, 
including about the qualifications and training among those tasked with 
carrying out executions.

The litigation over lethal injection brought federal executions to a halt. 
Although the U.S. Supreme Court would uphold the same three-drug protocol in 
response to a state challenge in 2008, another obstacle soon followed. The sole 
U.S. manufacturer of sodium thiopental ceased production of the drug, in large 
part due to pressure by human rights activists. This prompted a desperate 
search for new sources — and eventually, new drugs. In March 2011, 
then-Attorney General Eric Holder wrote back to states requesting sodium 
thiopental from the federal government, explaining that the administration had 
no reserves and was “facing the same dilemma.”

Evidence has shown that pentobarbital is neither reliable nor humane for lethal 
injection.

At the heart of Barr’s announcement on Thursday is a new one-drug protocol 
using pentobarbital — the same method currently used by Texas, Missouri, and 
Georgia. The protocol is summarized in two pages that, like similar state 
documents, provide for the anonymity of executioners while offering no 
information about the origin of the drug. Although Barr notes that “14 states 
have used pentobarbital in over 200 executions,” evidence has shown that it is 
neither reliable nor humane for lethal injection. Dwindling supplies have led 
states to seek out compounding pharmacies, whose lack of regulation heightens 
the risk that the drug will be contaminated or ineffective. Just as states have 
kept these sources under wraps, the Barr memo makes clear that the government 
intends to ignore longstanding federal law — the Administrative Procedures Act 
— that is supposed to ensure that such government powers are subject to a 
public rule-making process. To many lawyers, this lawlessness is one of the 
most galling parts of last week’s news. “That will really cut off the public’s 
ability to know what’s happening,” Cohen said.

It is also clear that the first five men scheduled to die were carefully 
chosen. All were convicted of crimes against children or elderly people — 
offenses likely to dampen public outrage as their execution dates approach. And 
none of the condemned men are parties to the lethal injection lawsuit, showing 
that the government intends to circumvent the ongoing litigation. When it comes 
to race, Foster points out, the list “was curated in a really cynical way.” 
Three of the five are white men — the 1st set to die is a white supremacist — 
which belies the extent to which federal death row is racially skewed. If 
executions proceed and continue, she said, “it’s going to be black person after 
black person after black person.”

With 5 executions now set to take place in quick succession beginning December 
9, Americans are being confronted for the first time in years with a system 
that is largely abstract and unfamiliar. Many of the assumptions that persist 
about capital punishment at the state level — including that it is reserved for 
the “worst of the worst” — are mirrored by perceptions of capital punishment at 
the federal level. One is the belief that the federal death penalty targets 
terrorists. In fact, of the 62 people on federal death row, only one, Dzhokhar 
Tsarnaev, was convicted on terror charges.

“People think the federal death penalty is the gold standard. That is absurd.”

Another is the notion that the federal system is somehow superior to what 
exists in the states, a myth repeated by Hillary Clinton on the campaign trail 
in 2016. “People think the federal death penalty is the gold standard,” said 
Foster, who has handled state and federal cases from coast to coast. “That is 
absurd.”

Cohen recalls her surprise when she first started handling federal cases. As 
jaded as she had become after decades of capital defense on state cases, she 
said, “I thought the federal cases would be cleaner. I thought they would 
involve really good defense lawyers and really careful judging and really smart 
prosecutors and lots of judicial review. And I was really shocked to find that 
it is not that way.” In any close examination of federal death penalty cases, 
“you will find trauma, you will find mental illness, you’ll find procedural 
disasters, you’ll find junk science, you’ll find all kinds of problematic stuff 
because the federal death penalty is plagued by the same problems that have 
caused people to move away from the death penalty in the states.”

Many have noted that the move to restart executions defies national trends 
showing the death penalty moving toward extinction. Given Trump’s longtime zeal 
for capital punishment, it is understandable that his critics see the decision 
as yet another low point in his tenure. But while Trump’s Democratic opponents 
have condemned his actions — and even responded with new abolition legislation 
— it is only very recently that the party began to turn away from capital 
punishment. The 2020 race is the 1st time in decades that all major Democratic 
candidates are on record as opposing it.

Particularly notable is Joe Biden, who came out against the death penalty just 
two days before Barr’s announcement last week. The tough-on-crime senator of 
the 1980s and ’90s was instrumental in pushing legislation that expanded 
federal death sentences — the vast majority of people on federal death row 
today were sentenced under the now-notorious 1994 crime bill. The law “caused a 
cascade of problems that we’re only now reckoning with,” Cohen said. “And we 
haven’t reckoned with the death penalty aspects of that set of statutes until 
now.” If Trump’s opponents are truly sincere about grappling with the federal 
death penalty, they can start by confronting the Democrats’ role in building 
it.

Then-President Bill Clinton signs the 1994 crime bill on the South Lawn of the 
White House in Washington, D.C., on Sept. 13, 1994.

Just over a month before Barr’s announcement, on June 18, a U.S. District Court 
judge vacated the federal death sentence of a man named Bruce Webster. One of 
five men convicted in the abduction, rape, and murder of a 16-year-old girl 
named Lisa Rene in Arlington, Texas, Webster had been on federal death row 
since 1996. There was evidence from the start that he was less culpable than 
others involved in the crime — most importantly, IQ tests introduced by his 
attorneys that suggested he was “mentally retarded.” But prosecutors accused 
Webster of faking his answers to escape the death penalty. In 1996, a judge in 
the Northern District of Texas sentenced him to die.

Webster would likely not have ended up on federal death row if not for 
legislation passed just days before his crime. In September 1994, President 
Bill Clinton signed the Violent Crime Control and Law Enforcement Act, 
otherwise known as the 1994 crime bill. The sweeping legislation included the 
Federal Death Penalty Act, which vastly expanded federal death sentences. 
Overnight, 60 new offenses became punishable by death. Among them were crimes 
like “kidnapping resulting in death,” one of several felony murder crimes that 
made it easier to convict multiple people for one killing. Federal prosecutors 
initially said they were considering seeking death sentences against all 5 men. 
But ultimately, they would target Webster and his co-defendant Orlando Hall — 
the “1st death penalty case filed under the new crime bill in the nation,” as 
one U.S. attorney announced. The three other defendants would plead guilty in 
exchange for lesser sentences.

“You will find trauma, you will find mental illness, you’ll find procedural 
disasters.”

Hall was tried first, in 1995. Prosecutors described him as the mastermind, 
while defense attorneys said he’d never meant to abduct Lisa Rene and that 
“things got out of hand, with Bruce Webster in charge.” By contrast, Webster’s 
attorneys gave no opening statement at trial. Emotions ran high as jurors began 
deliberating on his fate in June 1996; newspapers reported that Lisa Rene’s 
sister had “accidentally” seen “gruesome, poster-sized” images of Rene’s face 
in court earlier that day, screaming and having to be helped off the witness 
stand. The trial judge denied a motion for a mistrial. After 75 minutes, the 
jury convicted Webster, later recommending a death sentence.

Six years after Webster was sent to death row, the U.S. Supreme Court issued a 
landmark ruling, Atkins v. Virginia, which prohibited death sentences for 
people with intellectual disabilities. Still, his sentence remained intact. 
When the Bush administration set an execution date for Webster in 2006, a 
clemency petition circulated by Amnesty International detailed the horrific 
abuse Webster and his siblings experienced at the hands of their father, a 
common component of death penalty cases. The treatment included such torture as 
forcing his children to eat human waste, subjecting them to electrical shocks 
and burns from a hot iron, and “forced sex between the children.”

Webster ultimately won a temporary reprieve by joining the ongoing federal 
lethal injection lawsuit. Then, in 2009, his federal habeas attorneys 
discovered a slew of files that had never been released by the state. Among 
them were records showing that government psychologists had examined Webster in 
1993 — a year before the crime that sent him to die — and concluded that he had 
an intellectual disability. Other records showed that Webster had taken special 
education classes, despite testimony claiming the opposite at trial. But 
perhaps most unsettling were Social Security forms Webster had filled out to 
apply for disability benefits. In his June order overturning Webster’s death 
sentence, the judge quoted excerpts from the documents. Webster’s answers were 
“incomprehensible,” he wrote, and indicative of his “significant limitations” 
in intellectual and conceptual functioning.

Foster, the Indiana-based attorney, was on Webster’s legal team when the new 
evidence was found. “When you look at all of these records and when you look at 
his application for Social Security — oh my God,” she recalled. Like all 
attorneys who represent people facing execution, the problem of intellectual 
disability is one she has seen repeatedly across the board. But there is an 
additional problem at the federal level. Whereas state death penalty 
convictions are subject to layers of review, first at the state level and then 
by the federal courts, federal convictions only get the latter. Despite the 
role these courts are supposed to play in theory — and thanks in part to 
another sweeping Clinton-era law curtailing federal review — many cases receive 
little meaningful scrutiny.

Cohen points out that the U.S. Supreme Court has taken virtually no federal 
death sentences on direct review. And while in theory, clients are entitled to 
evidentiary hearings in the same District Courts where they were convicted — a 
chance to raise the kinds of violations often found in capital cases, such as 
ineffective assistance of counsel — “there are a huge number of guys, including 
people who are now scheduled for execution, who got no evidentiary hearing.” 
This was true of Webster until the new evidence got him back into court. If not 
for that discovery, Webster may well have been on the list of people facing 
execution.

Federal Intrusion on State Cases

There is no question that the crime for which Webster was convicted — like 
those of the five men facing execution dates — was horrific and disturbing. But 
neither was there any compelling reason that it had to be handled by the 
federal government. A major effect of the 1994 crime bill was to encourage the 
Department of Justice to take over cases that could have been prosecuted at the 
state level. When the federal death penalty was resurrected in 1988, its scope 
was ostensibly limited to “drug kingpins” and trafficking-related crimes. But 
now practically any murder involving additional felonies is fair game.

As federal prosecutions ramped up in the mid- to late 1990s, evidence of racism 
became unmistakable. By the time Timothy McVeigh was executed in 2001, federal 
death row was made up of 14 black men, 3 Latinos, and 2 white people. The 
population has more than tripled since then, more than half people of color. 
According to the Death Penalty Information Center, of the 62 people on federal 
death row today, 26 are black, 7 are Latino, 1 is Asian, and 1 is Native 
American. In the 5th Circuit, where Webster was convicted, the problem is 
especially stark: 15 of the 20 defendants who have received a federal death 
sentence there have been people of color.

As federal prosecutions ramped up, evidence of racism became unmistakable.

In a law review article published in 2010, defense attorneys Ben Cohen and Rob 
Smith revealed one possible explanation for the pronounced racial disparities 
on federal death row. Just as a small number of counties are responsible today 
for new death sentences at the state level, federal death sentences quickly 
became concentrated in a relative handful of federal jurisdictions. A 
“disproportionate number of federal death sentences are located in districts 
where the decision to prosecute federally transformed the jury pool from 
predominantly black to predominantly white,” Cohen and Smith found. This is 
because most federally prosecuted capital crimes have taken place in locations 
largely populated by black residents but surrounded by white-dominated suburbs. 
“As the jury pools get whiter, the opportunity for implicit race bias increases 
(and minority group defendants suffer the consequences).”

In a supposed effort to make death sentences more evenly applied, the federal 
government’s intrusion into state cases was taken to a new level by the Bush 
administration. Then-Attorney General John Ashcroft, a death penalty true 
believer, pursued a deliberate policy of taking over cases in states that did 
not have capital punishment in place. In a number of cases, he overruled the 
decisions of his own U.S. attorneys, overriding plea deals that had already 
been worked out.

The 1st to be targeted by this policy was Lezmond Mitchell, whose execution is 
scheduled for December 11. Mitchell, who is the only Native American on federal 
death row, was convicted in Arizona in 2003 for murdering a 63-year-old woman, 
Alyce Slim, and her 9-year-old granddaughter, Tiffany, members of the Navajo 
Nation. It was a brutal crime; the pair were driving to New Mexico to see a 
medicine man when they were attacked; their dismembered bodies were later 
discovered buried on the reservation. As the Farmington Daily Times reported 
last week, the Navajo Nation made it clear from the start that it opposed the 
death penalty for Mitchell. In one letter to the U.S. attorney for the District 
of Arizona, the Navajo Nation’s chief justice urged the federal government to 
reconsider its punishment. “Capital punishment is a sensitive issue for the 
Navajo people,” he wrote. “Our laws have never allowed for the death penalty.”

The 9th Circuit Court of Appeals upheld Mitchell’s death sentence in 2015. But 
in a forceful dissent, the late Judge Stephen Reinhardt decried the decision, 
recounting how the U.S. government had forced itself onto the case. For one, 
because the murder alone was not punishable by death under tribal law, seeking 
the death penalty was “possible only by virtue of the fact that Mitchell and a 
fellow Navajo, aged 16, stole a car in connection with the murders they 
committed,” he wrote. The Anti Car Theft Act of 1992 had made carjacking a 
federal crime — and the 1994 crime bill had made carjacking resulting in death 
a crime punishable by death. “In the absence of the carjacking, Mitchell would 
not have been eligible for the death penalty.”

“Equally important,” Reinhardt went on, “none of the people closely connected 
to the case wanted Mitchell to be subjected to the death penalty: not the 
victims’ family, not the Navajo Nation — of which the victims and perpetrators 
were all members and on whose land the crime occurred — and not the United 
States attorney whose job it was to prosecute Mitchell.” The U.S. attorney at 
the time, a Bush appointee named Paul Charlton, had declined to seek the death 
penalty in light of the opposition expressed by the Navajo Nation and the 
victims’ relatives. But “in the words of the victims’ family,” Reinhardt wrote, 
“the request that the federal government not seek the death penalty was 
ultimately ‘ignored and dishonored.’ Attorney General John Ashcroft overruled 
Charlton and forced a capital prosecution.”

Charlton would be overruled on the death penalty again, this time by Alberto 
Gonzales, and later lose his job — 1 of 9 prosecutors ultimately purged by the 
Bush Justice Department in what became known as the U.S. attorneys scandal. 
(Another fired U.S. attorney, Margaret Chiara of Michigan — a state that 
abolished the death penalty in 1963 — had also clashed with the Justice 
Department over the issue.) The role of the death penalty was largely lost in 
the controversy, in part because Democratic politicians who vocally criticized 
the U.S. attorney purge had little to say about the Bush Justice Department’s 
strong-arming prosecutors to bring the death penalty to their states.

The politicization of the Bush Justice Department has long been eclipsed by the 
larger crisis of Trump’s flagrant lawlessness. But his administration has 
continued the tradition, seeking death sentences in states like Illinois, which 
abolished the death penalty years ago over concerns about wrongful convictions. 
“Since Trump took office, those of us in the capital-defense community have 
seen a sharp spike in capital prosecutions of state crimes by the federal 
government,” veteran capital defense attorney Andrea Lyon recently wrote. As 
men like Mitchell approach their execution dates, it bears remembering that the 
death penalty has long been weaponized — by presidents, politicians of both 
parties, and prosecutors who speak for victims even when grieving families ask 
that it not be used in their name. Barr may claim that “we owe it to the 
victims and their families” to restart federal executions this winter, but he 
has already proven that his only real loyalty is to Trump himself.

(source:theintercept.com) ***************************

Former public defender: DOJ plan to resume federal executions a 'recipe for 
problems'



Former public defender Robert Dunham on Monday said that the Trump 
administration’s plan to resume federal executions after nearly two decades is 
a “recipe for problems,” saying that such a move could catch some authorities 
unprepared if anything goes wrong.

“What we’ve seen is that there’s been 15 years of no executions,” Dunham, now 
the executive director of the nonprofit Death Penalty Information Center, said 
in an appearance on Hill.TV.

“Now you’re going to carry out 5 executions in the span of 5 weeks, 3 
executions in the span of 5 days with personnel that have not carried out any 
executions at all,” he continued. “That particular compressed schedule if it 
goes forward is a recipe for problems.”

Dunham explained that federal authorities carrying out the executions need to 
be properly trained.

“These are going to be the first executions, so you know they’re going to be 
legal challenges — they frequently go on until the last minute and so you’ve 
got potentially unprepared personnel facing a situation that none of them has 
faced in a period of 15 years,” he told Hill.TV.

The Justice Department announced last week that it plans to reinstate the 
federal death penalty, beginning with the executions of death-row inmates later 
this year. All 5 of the inmates that Attorney General William Barr named in his 
release were convicted for the murders of children.

“The Justice Department upholds the rule of law — and we owe it to the victims 
and their families to carry forward the sentence imposed by our justice 
system,” Barr’s statement read in part.

Dunham, meanwhile, cast doubt over whether the executions, which are scheduled 
for December 2019 and January 2020, will actually move forward.

“In the statement last week, Attorney General Barr said he was directing the 
bureau of prisons to adopt a new protocol, which is going to be a single drug — 
pentobarbital — the same drug that’s used in Texas and Georgia and Missouri,” 
he said.

“But the difficulty as a legal matter is you can’t say this is our new 
protocol, you have to go through the rule-making process,” he added.

Dunham said this compressed system doesn’t allow for “meaningful consideration” 
for ensuring whether the drugs were obtained legally by a drug company with the 
appropriate health and safety records.

“If you’re going to have a death penalty — the ultimate in the law — I think 
it’s critical that we follow the law,” he told Hill.TV.

Barr's announcement comes as the number of executions in the U.S. has declined 
over the last decade.

According to a report by the U.S. Bureau of Justice Statistics, the number of 
death-row inmates had fallen for the 17th consecutive year in 2017.

It also comes amid concerns about whether capital punishment disproportionately 
impacts African Americans. Dunham said there is still a disproportionate number 
of people of color who are on death rows around the country, saying this 
discrimination generally happens in 2 stages.

“The first is who gets capitally prosecuted — what kind of case and there we 
see a ‘victim preference if you will’ and that’s where you get the argument 
that black lives don’t matter because you are much more likely to be capitally 
prosecuted if you’ve committed an offense against a white person and 
particularly against a white woman.”

A number of 2020 Democratic presidential candidates have spoken out against the 
Justice Department’s plan.

“Let me be clear: capital punishment is immoral and deeply flawed. Too many 
innocent people have been put to death,” Sen. Kamala Harris (D-Calif.), who is 
a presidential contender, tweeted Thursday following the announcement. “We need 
a national moratorium on the death penalty, not a resurrection."

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

The death penalty is racially biased, fiscally irresponsible and very 
inaccurate



Attorney General William Barr recently announced the reinstatement of the 
federal death penalty — this comes as executions and death sentences in states 
are at historic lows. While people may differ about the morality of the death 
penalty, there has been a growing movement at the state level to repeal it 
because of its deep racial bias, fiscal irresponsibility and proven inaccuracy. 
The federal government should take note.

Consider the following data: More than 160 innocent people across the nation 
have been exonerated from death row since 1973. Twenty of those people were 
exonerated through post-conviction DNA testing. And according to a recent 
study, at least 4 % of all defendants sentenced to death in the United States 
are innocent. More than half the people on death row in this country are people 
of color. In 2018, the Washington state Supreme Court unanimously struck down 
the state’s death penalty as unconstitutional and “racially biased.”

There are human faces behind the data. Kirk Bloodsworth was the 1st man in the 
United States whose capital conviction was overturned by post-conviction DNA 
testing. A Marine with no criminal record, he was convicted based on the 
mistaken identification of five eyewitnesses of having raped and murdered a 
little girl in Baltimore County, Maryland. DNA testing led the state to vacate 
his conviction and dismiss the case against him, but Maryland still wouldn’t 
concede Bloodsworth was innocent.

Ultimately, a DNA profile from semen found in the girl’s underwear was run in 
the CODIS DNA database system and came up with a “hit” to the real assailant 
who, astonishingly, had actually lived on the same cell block with Bloodsworth. 
After two horrifying years on death row awaiting the ultimate punishment, 
Bloodsworth narrowly escaped with his life.

Sometimes, the mere existence of the death penalty can compel wrongful 
convictions and grave miscarriages of justice. Christopher Ochoa pled guilty to 
the rape and murder of an Austin, Texas, woman. Under threat of receiving the 
death penalty, he confessed to the crime and implicated another man, Richard 
Danziger. Both men received life sentences and years later, the police, 
then-Gov. George W. Bush’s office, and the District Attorney’s Office received 
letters from a man named Achim Marino, claiming that he was solely responsible 
for the crime for which Ochoa and Danziger had been convicted.

13 years after the commission of the crime, Ochoa and Danziger were exonerated 
and released from prison. Ochoa, who graduated from law school in 2006, now 
states that his confession and implication of Danziger were the result of fear 
of the death penalty.

Bloodsworth and Ochoa’s cases demonstrate the fallibility of eyewitness and 
confession evidence and there are myriad additional contributing factors to 
wrongful conviction. The misapplication of forensic science is one. In 2013, 
the DOJ and the FBI, in collaboration with the Innocence Project and the 
National Association of Criminal Defense Lawyers, announced that they would 
conduct a comprehensive review of cases in which FBI Laboratory reports and 
testimony included statements that were scientifically invalid.

The agencies agreed to undertake the review after three men who had served 
lengthy prison sentences were exonerated by DNA testing in cases in which three 
different FBI hair examiners provided testimony that exceeded the limits of 
science. The review found that out of the 268 cases where examiners provided 
testimony used to inculpate a defendant at trial, erroneous statements were 
made in 257 of them — an astounding 96 % of the cases. Defendants in at least 
35 of these cases received the death penalty and errors were identified in 33 
(94 %) of those.

Having worked on death penalty repeal efforts in several states, one of the 
core realities that resonate with lawmakers on both sides of the aisle is the 
grave and profound risk of executing an innocent person. Indeed, the number of 
Republican state lawmakers supporting repeal efforts has spiked in recent 
years. Many of these Republicans cite their support of repeal to their 
inability to square the policy with its inborn error rate. Many states 
acknowledge that given the multitude of contributing factors to wrongful 
conviction that still remain unaddressed, there is no possible justification to 
permit the ultimate punishment in their jurisdictions.

The federal system is no different, causing former Chairman of the Senate 
Judiciary Committee Patrick Leahy (D-Vt.), himself a former prosecutor, to 
respond to the Barr announcement this way: “This week I again met with my 
friend Kirk Bloodsworth. Kirk was in prison 8 years, including 2 on death row, 
before DNA evidence exonerated him. The DNA testing program named in his honor 
has exonerated 50 more. The death penalty is too final & too prone to error. 
It’s beneath us.”

Questioning the appropriateness of the death penalty is a bipartisan endeavor. 
Hannah Cox of Conservatives Concerned About the Death Penalty also stated that, 
"A growing number of conservative state lawmakers… realize that capital 
punishment goes against their principles of valuing life, fiscal responsibility 
and limited government, and that the death penalty does nothing to make the 
public safer.”

Given the proven errors, racial bias and chorus of concern expressed by 
bipartisan state and federal lawmakers, the administration should reverse 
course on reinstating the death penalty and instead spend its time and limited 
resources on achieving effective and fair criminal justice reform.

[Rebecca Brown is the director of policy for The Innocence Project, which seeks 
to prevent and reveal wrongful convictions and assure compensation for the 
wrongfully convicted upon release from prison. She previously served as a 
policy analyst for the Mayor's Office in New York City and a senior planner at 
Center for Alternative Sentencing and Employment Services (CASES).]

(source for both: thehill.com)

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

Poll: Do you agree with the reinstatement of the federal death penalty?



For the first time in 16 years, the federal government is preparing to carry 
out the death penalty. Last week Attorney General William Barr instructed the 
Bureau of Prisons to set up executions for five convicted killers who are being 
held in federal prisons.

The Bureau of Prisons plans to use a large dose of a sedative, pentobarbital, 
rather than a three-drug combination used previously. The executions have been 
scheduled for December and January.

A majority of Americans favor the death penalty for those convicted of murder — 
54 %, according to a recent Pew Research Center survey; 39 % said they’re 
opposed. Some polls put the majority closer to 60 %. That’s down from the 
1990s, when nearly 3/4 of Americans supported the death penalty.

In announcing the resumption, Barr said, "We owe it to the victims and their 
families to carry forward the sentence imposed by our justice system.” What do 
you think? Should the federal government carry out the death penalty? Have a 
say in our informal, unscientific poll, and feel free to elaborate in the 
comment section.

see: 
https://www.lehighvalleylive.com/opinion/2019/07/poll-do-you-agree-with-the-reinstatement-of-the-federal-death-penalty.html

Thank you for voting!

(source: lehighvalleylive.com)