[Deathpenalty] death penalty news----N.H., FLA., LA., USA

[Rick Halperin]

May 26



NEW HAMPSHIRE:

The death penalty veto override that nearly wasn’t

  Ahead of Thursday’s override vote in the House, advocates of repealing New 
Hampshire’s death penalty had ridden a wave of encouragement for months, 
propelled by an unshakable sense of inevitability. A bill to repeal the death 
penalty had already passed the Senate with just over 70% support, and the House 
with 76%, well over the 2/3 threshold to override a veto.

Advocates of repeal, meanwhile, were waging an underdog battle to pull back as 
much of that support as possible, bringing out testimony by Laura Briggs, the 
wife of slain Manchester police officer Michael Briggs, and former U.S. senator 
and state attorney general Kelly Ayotte to hammer in an emotional plea.

But on Thursday, both sides nearly came up short. By a single representative, 
the repeal side edged out a win. The veto override message heads to the Senate, 
a vote away from potentially historic success.

Tracking the fall from 76% majority support for repeal this March to the 
razor-thin 66% two months later means taking stock of one singular factor: flip 
flopping. 35 Republicans who had voted in favor of repealing the state’s 
capital punishment 2 months ago changed their minds this time around, siding 
with Sununu to uphold the veto.

That included Pembroke’s Brian Seaworth, Sunapee’s Gates Lucas, Brookfield’s 
Bill Marsh, Gofftown’s Barbara Griffin and Stratham’s Pat Abrami.

Perhaps it’s not surprising. Sununu doubled down on efforts to peel caucus 
members off, and the coalition opposing repeal – from crime victims to police 
unions – is more than adept at political persuasion. In the end he was one flip 
short.

Changing one more mind is one of any number of ways Sununu could have squeezed 
through his veto. He could have also pulled in a newcomer. Eight of the votes 
to throw out the veto override were Republicans who hadn’t taken a vote before. 
Any 1 of the 31 representatives that weren’t present for the vote could have 
been the ninth vote he needed.

Then there are the anti-repeal Democrats. Five of them voted to oppose 
repealing the penalty in March, but 2 of them, Linda DiSilvestro of Manchester 
and Mark Vallone of Epping, didn’t show up Thursday.

There were also 6 Republicans who voted no in March but became no-shows last 
week.

Looked at another way, Sununu’s near win was the pro-repeal side’s near loss. 
In total, anti-repeal advocates racked up a net 35-vote gain, enough to easily 
knock down the 76% March lead of their opponents. But advocates of repeal 
managed to muster 20 new voters of their own, including House Speaker Steve 
Shurtleff. Those voters, none of whom participated in March, formed a key 
bulwark against the Republican defections; any less and repeal would have 
flopped.

For Sununu, it’s another lesson in the irrational, inartful swings of New 
Hampshire’s 400-member Legislature, this time with a more personal sting. But 
as it heads over to a potential vote in the Senate on Thursday, the governor is 
playing with a smaller playing board. Seventeen senators have voted against 
repeal; two would need to change their minds to sustain the veto.

Pulling that off could be a taller order than ever before. But if this week was 
any guide, sometimes hard beliefs are more pliable than they seem.

A new way to slice it

Where the House split narrowly on one thorny issue Thursday, the Senate found 
consensus on another. Senators voted unanimously to approve an independent 
redistricting commission – a long-sought but rarely imaginable effort to reduce 
partisan politics from the state’s redistricting process.

Under New Hampshire’s constitution, legislators draw districts once a decade, 
following new figures from the U.S. Census. But as long as there’s been 2 main 
parties in the Legislature, there’s been conflict over how the dominant party 
has drawn those districts, and that’s only escalated in recent years. The last 
2 redistricting battles have drawn in the state’s judicial system; 17 years ago 
the districts were effectively redrawn by the Supreme Court.

Finding a solution that removes the carving-up process from legislators’ hands 
– and in theory eliminates the chance of gerrymandering – has long run up 
against a barrier: the state constitution. It’s clear-cut: the legislature has 
the responsibility of redistricting and any outside arbiter can’t interfere 
unless the constitution itself were amended. And that was the sticking point in 
March when a Senate version of the independent redistricting commission idea 
passed only on party lines. Republican senators were adamant that legislative 
superiority over the process could not be undermined.

House Bill 706, which has now passed the House and Senate as of Thursday, 
sought to make those lines of authority clearer. Under the proposal, 15 members 
would form an advisory commission that would draw up maps of districts – from 
the Executive Council to the House to the Senate – and present it to the 
Legislature to accept or modify. Five members would be chosen by Republicans, 5 
by Democrats, and the final 5 appointed via agreement from the first 10.

An amendment introduced Thursday added some tweaks to win over Republican 
support. First, there are now “strike-outs,” just like in voir dire jury 
selection, each party will come up with 10 nominees for the commission. The 
opposing party will then eliminate 5 from the list to get the final 5. Second, 
where previous versions of the idea committed the Legislature to an up-down 
vote on the new plans, the new law is much more vague – lawmakers can accept, 
reject, or modify the plans on their own.

Getting from 14 to 24 votes in 2 months wasn’t easy. It took weeks of 
negotiating between a number of key parties: Republican senators James Gray and 
Regina Birdsell, Democratic Rep. Marjorie Smith and Sen. Melanie Levesque, and 
two lawyers: Henry Klementowicz of the American Civil Liberties Union of New 
Hampshire and Richard Lehmann, the former counsel for the last Republican 
Senate.

On Thursday, moments before passing the bill and 2 months after heatedly 
disagreeing, senators on both sides sent plaudits all around.

“The biggest concern that people had is what’s in the Constiution,” Birdsell 
said on the floor. “(The group) worked really hard to make sure that the 
Legislature had a say in every step.”

And Levesque praised the “bipartisan effort” to create a system that would 
“stand as a great example of how to take partisanship out of choosing 
districts.”

It’s still unclear what happens to this bill; the new amendment will have to be 
approved by the House for one. And Sununu has previously dampened any 
expectation of support; months ago his spokesman said “the current system works 
well.”

But after a show of bipartisanship – and a year before an election that could 
shift the next district-drawing Legislature in either direction – the odds of a 
change in heart are looking better than ever.

(source: Concord Monitor)

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

Disappointed in Sununu for supporting death penalty



To the editor: Last month, Democrats and Republicans overwhelming voted 
together to abolish the death penalty in New Hampshire. Despite the calls to 
action from both sides of the aisle, Gov. Chris Sununu vetoed the bill.

In today’s political climate, bipartisanship should be celebrated and 
acknowledged. My Republican legislators and I may have our differences, but I’m 
glad that at least some of us agree that it’s time to end the death penalty.

For many reasons, it simply doesn’t make sense in New Hampshire:

We have not had capital punishment in New Hampshire since 1939, and there is 
now only 1 person on death row. New Hampshire does not have an execution 
chamber, which would cost $2 million to build. We should be using public funds 
to improve the lives of Granite Staters, not to take life away.

In addition, data show that the death penalty does not make society any safer.

I am disappointed in Gov. Sununu’s support for the death penalty. I trust that 
our lawmakers will act responsibly and vote to repeal his veto, as the state 
House of Representatives did this past week, because it is so wrong for New 
Hampshire.

Bonnie Wright

Salem, N.H.

(source: Letter to the Editor, Eagle Tribune)








FLORIDA:

Conservative court eyes key death penalty issue



More than 100 inmates condemned to death could face a major upheaval, as a 
revamped Florida Supreme Court ponders whether to undo a 2016 ruling that 
allowed nearly half of the state’s Death Row prisoners to have their death 
sentences revisited.

With a conservative bloc of justices led by Chief Justice Charles Canady now in 
the majority, the court has begun the process of reconsidering whether changes 
to Florida’s death penalty-sentencing system should continue being applied 
retroactively to cases dating to 2002.

The court’s reopening of the retroactivity issue, which came in an April 24 
order, sent shockwaves through the state’s death penalty legal community.

“This is judicial activism. The right has always complained about judicial 
activism and not wanting judicial activist judges. But when you don’t respect 
precedent, that really is the judicial activism,” Marty McClain, a lawyer who 
has represented hundreds of defendants in death-penalty cases, told The News 
Service of Florida in a telephone interview.

Hurst case cited

The high court’s latest move is part of continuing fallout from a January 2016 
U.S. Supreme Court decision, in a case known as Hurst v. Florida, which found 
the state’s method of sentencing prisoners to death was unconstitutional.

McClain and other defense lawyers who specialize in the death penalty point to 
a legal principle, known as “stare decisis,” in which judicial decisions are 
based on precedent. Courts rarely depart from the doctrine.

“The reason for precedent is to bring stability and predictability to the law. 
And when you stop respecting precedent, it’s like, what? There’s no stability. 
You have no idea what you can and cannot do,” McClain said.

But Brad King, the state attorney for the 5th Judicial Circuit, which is based 
in Ocala, told the News Service that reversing the current process “will no 
more destabilize the law than the current, crazy, retroactivity rule has 
destabilized the law.”

Case brings change

The U.S. Supreme Court ruling found the state’s process of allowing judges, 
instead of juries, to find the facts necessary to impose the death penalty was 
an unconstitutional violation of the Sixth Amendment right to trial by jury.

The decision in the Hurst case, premised on a 2002 case known as Ring v. 
Arizona, led to a change in Florida law requiring unanimous jury findings of 
fact and unanimous jury recommendations for death sentences to be imposed.

The revised law, however, did not address the issue of whether the unanimous 
requirements should be applied retroactively to older cases, so the state court 
stepped in.

In a pair of critical death penalty decisions issued Dec. 22, 2016, the Florida 
Supreme Court decided the Hurst decision should apply retroactively to cases 
that were final after the 2002 Ring ruling. Re-sentencing should only be an 
option for cases in which jury recommendations for death were not unanimous, 
the court also decided.

“In this instance … the interests of finality must yield to fundamental 
fairness,” the majority wrote in the case of John Mosley, convicted of 
murdering his girlfriend and their infant child in 2004. “Because Florida’s 
capital sentencing statute has essentially been unconstitutional since Ring in 
2002, fairness strongly favors applying Hurst, retroactively to that time.”

Scolding by Canady

But in a sharply worded dissent joined by Justice Ricky Polston, Canady scolded 
the majority for departing from precedent in the 5-2 decision that applied 
Hurst retroactively.

As it did in previous cases, the court should have viewed Hurst as “an 
evolutionary refinement,” and thus “a new rule that should not be given 
retroactive application,” Canady argued.

“A decision that simply ignored existing precedent will rarely be entitled to 
any more weight as a precedent than the weight it afforded to the authority it 
ignored,” he wrote.

Canady, a former Republican state representative and congressman from Lakeland, 
at the time was 1 of 2 justices who frequently parted ways with the court’s 
more-liberal majority.

3 new justices

But 3 members of the longstanding court majority, Barbara Pariente, R. Fred 
Lewis and Peggy Quince, were required to step down early this year because of a 
mandatory retirement age. New Republican Gov. Ron DeSantis quickly replaced 
them with justices Robert Luck, Barbara Lagoa and Carlos Muniz.

As a result, Canady now presides over a conservative bloc of 6 jurists, with 
Justice Jorge Labarga the lone holdover from the old majority.

Late last month, the court ordered lawyers in the case of death row inmate 
Duane Eugene Owen to file briefs addressing the retroactivity issue.

Owen argument

In a brief filed last week, lawyers for Owen argued that retroactivity should 
apply to all death penalty cases, not only to those that were final after Ring 
was decided. That would mean also applying the new sentencing requirements to 
cases that became final before 2002.

But they also stressed that the court, at a minimum, should keep in place the 
current process of reconsidering cases after 2002. They said the analyses 
involved in whether to overturn precedent “bolster the strong presumption in 
favor” of maintaining the process.

Declaring Hurst “entirely nonretroactive would do serious injustice to the 
scores of capital defendants who have spent countless time and energy 
challenging their unconstitutional death sentences,” they added.

29 overturned

According to the Death Penalty Information Center, 154 of the state’s death row 
prisoners were eligible for resentencing following the 2016 rulings.

Since then, 29 inmates have had death sentences overturned and received 
sentences of life in prison without parole, and 4 have been resentenced to 
death. Many prosecutors may not have sought the death penalty a second time, 
because the cases were too old or because juries were narrowly split on whether 
to recommend death the 1st time. But prosecutor King, who was instrumental in 
crafting the state’s response to Hurst, said the Florida majority’s 2016 
decisions ignored long-standing precedent on when retroactivity should be 
applied.

(source: flcourier.com)








LOUISIANA:

Are Louisiana Republicans having a change of heart on the death penalty?



Sometimes it seems that capital punishment is an issue that will split the 
country, and the Louisiana Legislature forever, but though the pros and the 
cons, for the most part, talk past each other, minds can be changed.

Perhaps the most spectacular example would be Albert Pierrepoint, the British 
executioner who rose to the top of his profession and was tapped to dispatch 
Nazis in Germany after World War II.

A few years later, after his retirement, Pierrepoint wrote his autobiography 
and revealed he had become an abolitionist. As his former assistant observed, 
“When you have hanged more than 680 people, it's a hell of a time to find out 
you do not believe capital punishment achieves anything.”

Ah, well. Better late than never.

Britain's official hangman in the Victorian era, James Berry, had experienced a 
similar epiphany. Berry, after executing 131 people, took to drink, phrenology 
and evangelism, and campaigned for an end to capital punishment.

In an equally startling conversion, GOP state legislators are turning against 
capital punishment. A group called Conservatives Concerned about the Death 
Penalty notes that, when it was established in 2013, “death penalty reform was 
still largely seen as a liberal concern.” Today it is very much a bipartisan 
cause. This year so far Republican legislators have filed repeal bills in 
Kansas, Wyoming, Kentucky, Montana, Missouri. Colorado, New Hampshire, 
Washington and Louisiana.

Many of these Republican legislators, state Sen. Dan Claitor, of Baton Rouge, 
among them, have had a change of heart. Claitor, who filed a bill that would 
put a constitutional amendment on the ballot to abolish capital punishment, 
used to be a prosecutor in New Orleans under Harry Connick, and if he had any 
doubts about executing people in those days, you can bet he kept them to 
himself.

As a former superintendent of State Police, Terry Landry, of New Iberia, was 
not always against capital punishment either. But he sure is now that he is a 
Democratic State Rep., his repeal bill having become an annual fixture of the 
legislative calendar. The bill he filed this year didn't fool with a vote of 
the people but sought to ban executions for crimes committed on or after August 
1.

Nobody expected either Landry's bill or Claitor's to make it into law, since 
legislators seem more gung-ho for executions than the public, which polls show 
is more or less evenly divided these days.

While Landry and Claitor were filing their bills, Rep. Nicholas Muscarello was 
showing no inclination to join Conservatives Concerned about the Death Penalty. 
Muscarello's concern is that we cannot get our hands on the drugs we need to 
dispatch murderers, purportedly because drug manufacturers and pharmacists fear 
a backlash if they are identified as a source of the compound used for fatal 
injections.

Louisiana's death row currently houses 70 inmates, and has become the place 
where the condemned go to linger until they die of natural causes. Three have 
succumbed over the last 2 years, while we have only executed three others in 
the last 20, the most recent in 2010. In the last 15 years, five death row 
inmates have been exonerated, so perhaps it is just as well we don't rush 
executions.

Cost of Louisiana's death penalty is $15.6 million per year, new study says

We may pick up the pace if we can find pharmacists and drug companies willing 
to co-operate, but, if we were really keen to clear the death row backlog, we 
would have found a way to do so. There is more than one way to skin a cat, as 
our rabidly pro-execution Attorney General Jeff Landry is fond of pointing out.

Perhaps more people are getting the message that maintaining the death penalty 
is a ruinously expensive and racist exercise riddled with errors and of no 
apparent deterrent value. It no doubt satisfies a thirst for retribution but is 
an offense against Christian morality. Vengeance is mine, saith the Lord.

Or, as the Republican abolitionists have it on their website, capital 
punishment “runs afoul of conservative commitments to limited government, 
fiscal responsibility and a culture of life.” As for the culture of death, 
Pierrepoint's long immersion in it left him convinced that “in what I have done 
I have not prevented a single murder.”

(source: James Gill, The New Orleans Advocate)








USA:

1 Night, 2 Executions, and More Questions About Torture



As the sun began to set over the prayer vigil outside Tennessee’s Riverbend 
Maximum Security Institution, where 68-year-old Don Johnson was about to die, 
another execution was underway some 400 miles south of Nashville. “I would like 
to thank Jesus for everything he’s done for me,” Michael Brandon Samra said as 
he lay on the gurney in Atmore, Alabama. “I want to thank Jesus for shedding 
his blood for my sins. Thank you for your grace, Jesus. Amen.”

Samra was strapped down and wrapped in a tight white blanket covering his feet. 
His execution had been scheduled for 6 p.m. on May 16, but for reasons no one 
explained, it did not start for more than an hour. “At 7:15 p.m.,” a media 
witness later wrote for the Montgomery Advertiser, “his chest heaved three 
times in quick succession. After, his breathing appeared significantly labored, 
with his head slightly jerking with each breath for the next minute.” A 
consciousness check was conducted at 7:17 p.m.; Samra did not appear to 
respond. But around 7:19 p.m., another reporter observed, “he stretched both 
hands and slightly raised his left arm, then curled his fingers and dropped his 
arm.” Eventually he went still, and the curtain closed. Samra was declared dead 
at 7:33 p.m.

Samra, who was sent to death row for his role in a 1997 quadruple murder, was 
executed using the same lethal injection protocol used in Tennessee: a 
500-milligram dose of midazolam, meant to provide anesthesia, followed by a 
paralytic that stops respiration, and then potassium chloride to stop the 
heart. For years defense attorneys and medical experts have warned that 
midazolam — a sedative often paired with an opioid during minor surgeries — is 
incapable of rendering a person insensate for the purpose of lethal injection, 
no matter how high the dose. Without sufficient anesthesia, the 2nd and 3rd 
drugs are known to be excruciating, creating a sense of suffocation and burning 
that has been labeled torture.

One sign that anesthesia has not been properly administered is unusual movement 
on the gurney — a phenomenon as old as lethal injection itself. But in recent 
years, autopsies of people executed using midazolam have shown additional red 
flags: heavy lungs filled with bloody, frothy fluid, a sign of pulmonary edema. 
This evidence was first presented at a trial in Nashville last summer, in which 
lawyers with the Tennessee Federal Public Defender unsuccessfully challenged 
the state’s protocol as cruel and unusual punishment. One veteran 
pharmacologist, responsible for early clinical trials of midazolam, testified 
that a 500-miligram dose of the acidic drug would rapidly destroy pulmonary 
capillaries and lung tissues upon injection, allowing liquid to fill the lungs 
and resulting in a sense of terror and drowning.

Despite losing in court, the lawyers’ argument has been bolstered since then. 
Eyewitness accounts of Billy Ray Irick’s execution at Riverbend in August 2018 
led a medical expert to conclude that he had died a tortuous death. Although a 
court blocked an autopsy from being conducted on Irick due to his religious 
beliefs, an autopsy of an Ohio man executed using midazolam that same summer 
revealed “significant abnormalities” in the lungs of the deceased, including a 
mix of blood and frothy fluid. The mounting evidence against midazolam was so 
alarming that Ohio Gov. Mike DeWine put executions on hold and called for a new 
protocol.

Nevertheless, Tennessee and Alabama have forged ahead. As Samra took his last 
breaths inside the Atmore death chamber last week, those standing in the field 
in Nashville checked their phones, seeking word about Johnson. “Is he gone?” 
one woman whispered tearfully as she joined the vigil around 7:30 p.m. “We 
don’t know,” her friend answered. Many people there that evening had known 
Johnson for years, describing him as a deeply devout man who had transformed 
into a spiritual leader on death row. While it remained mostly unspoken, the 
knowledge that he could suffer loomed heavily.

Ohio-based activist Abe Bonowitz of Death Penalty Action had spent the last few 
days alongside local organizers and faith leaders, including Jeannie Alexander, 
the former chaplain at Riverbend. They urged Tennessee Gov. Bill Lee to show 
mercy, stressing Johnson’s positive influence on death row and his relationship 
with his stepdaughter, Cynthia Vaughn. Johnson had been convicted of killing 
Vaughn’s mother. Despite years supporting his sentence, she had since forgiven 
him and pleaded for his life. After Lee announced he would not intervene, 
activists met at Nashville’s Legislative Plaza. In single file, they crossed 
the street to the Tennessee state Capitol, carrying a large poster featuring 
Don Johnson’s face and below it a quote from the Bible: “I was in prison and 
you visited me.” The hope was that Lee, who ran on a platform of criminal 
justice reform and Christian values, might consider meeting and praying with 
Johnson. But the group was turned away from his office without a response.

Bonowitz was addressing the crowd in the field when the word came from the 
prison that the execution was complete. He paused, and Alexander announced: 
“Don was declared dead at 7:37 p.m.” Soon afterward, media witnesses approached 
a podium in a nearby parking lot. One after another, they shared what they had 
seen and heard in the execution chamber. After the drugs began to flow, Johnson 
sang hymns, eventually falling unconscious. But his breathing appeared labored; 
different witnesses described it as “snoring” or “slurping” or “gasping.” After 
a consciousness check — and a signal that the execution could continue — 
Johnson emitted a sharp “sort of high-pitched ‘ah’ noise,” as one reporter put 
it. Another “counted 33 of whatever that was — a snoring, or a gurgle or a 
gasp” before the consciousness check, and 28 afterwards. It was starkly 
different from executions she had witnessed many years ago, using a previous 
protocol, and which had been carried out without obvious signs of movement by 
the condemned. “There was quite a bit of noise coming from Don Johnson lasting 
for quite a bit of time,” she said.

When Federal Public Defender Kelley Henry approached the microphone, she was 
firm: the midazolam had failed to provide anesthesia, just as expected. While 
heavy straps kept Johnson tied to the gurney — and his hands were bound with 
what appeared to be athletic tape — “I believe that he felt the sensation of 
being buried alive from the paralytic,” she said. “And I believe that he felt 
the sensation of liquid fire from the potassium chloride.” The gurgling and 
gasping was the sound of her client experiencing pulmonary edema, she said. But 
it would take an autopsy to be more certain.

The Machinery of Death

On the morning after the executions in Tennessee and Alabama, the 
Montgomery-based Equal Justice Initiative raised alarm over Samra’s death on 
its website, describing it as “the latest in a series of problematic attempts 
to execute people by lethal injection.” Among the other examples it listed was 
the 2017 execution of Kenneth Williams in Arkansas, who “violently lurched 
forward about three minutes after drugs were injected and continued to convulse 
about 20 times.”

Samra’s movement on the gurney was mild compared to what occurred during 
executions like Williams’s. But that did not mean all had gone smoothly. As 
anesthesiologist David Lubarsky wrote following the Irick execution, “a trained 
observer knows that if a patient moves his fingers or hands, that is a clear 
indicator that they are not anesthetized.” Curling of the fingers, as seen in 
Samra’s case, was just the kind of red flag Tennessee seemed intent on 
concealing.

But even if Samra’s death had been more dramatic, there is no reason to think 
the state would have acknowledged it. In Alabama and other states, the routine 
response to seemingly botched executions has been blunt denial. I was in the 
press room at the Arkansas prison where Williams was killed in 2017, the last 
of four executions carried out in a rush before the state’s stash of midazolam 
expired. No sooner had the media witnesses described what appeared to be 
lurching, gasping, and striving for breath than a governments spokesperson 
announced that, in fact, all had gone perfectly well.

The state maintained the same stance at a recent federal trial over Arkansas’ 
lethal injection protocol, in which experts gave dueling testimony over what 
exactly Williams could or could not feel before he died. Eyewitnesses to his 
execution and others carried out with midazolam took the stand to describe what 
they saw that night. Such accounts are “critically important,” as 
anesthesiologist Joel Zivot has told me. “The problem, of course, is that 
executions in America are curated events, and so the witness doesn’t really get 
to see what’s really happening.”

Indeed, among the critical pieces of context that are withheld from witnesses 
is any information about when exactly the state is administering the different 
drugs, making it almost impossible for witnesses to gauge what is occurring. 
“The state reports in great detail about the amount of pepper on the fried 
chicken on the last meal,” Zivot says wryly. But “as soon as you get into the 
execution part, the state record turns into something akin to an impressionist 
painting. Brushstrokes from a distance.”

The result is an incomplete record, he says. “So what remains? Certainly the 
executed person can’t comment. The witnesses can’t tell. And so, we have to 
look to the body itself. And here the autopsy reveals, I think unambiguously, 
the truth of lethal injection.” In the case of Williams, there was evidence of 
blood-tinged fluid in his respiratory passages, as noted by pathologist Mark 
Edgar, who has studied all the available autopsies of people executed with 
midazolam. He concluded that Williams “developed acute pulmonary edema during 
his execution, which is further supported by the eyewitness accounts.”

On the morning of May 17, the Davidson County Medical Examiner conducted 
Johnson’s autopsy. Although the findings have yet to be released, there is good 
reason to expect it will show signs of pulmonary edema, as a majority of 
available autopsies of people executed using midazolam have to date. If it 
does, the impact on the future of Tennessee’s death penalty remains uncertain. 
With its next execution scheduled for August 15, Tennessee abolitionists are 
still reeling from Johnson’s death. As Steven Hale wrote in the Nashville Scene 
last week: “There is always a persistent hope among the men and women who have 
spent years and even decades opposing state killings. … But the distraught 
looks on their faces signaled something grim.”

After 4 executions in less than 1 year, it was the sinking feeling that there 
is nothing capable of stopping the machinery of death in Tennessee — never mind 
the myriad factors that might call for mercy. Hale continued: “Would they stop 
it for the mentally ill? Would they call it off for the rehabilitated? Are they 
moved by the undeniably arbitrary nature of death sentences, or a history of 
horrific childhood abuse? Will the prospect of torture give them pause? Will a 
story of redemption and forgiveness compel a man whose political identity is 
built on the sincerity of his Christian faith?” The answer to all these 
questions was no.

In Alabama, there is perhaps even less of a reason to think the questions about 
Samra’s execution will give the state pause. The next lethal injection in 
Atmore is scheduled for May 30.

(source: theintercept.com)

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

Fractured: Supreme Court may never be unanimous again



Does judicial decorum matter? The question comes to mind after Justice Samuel 
Alito’s impassioned dissent this week from an order handed down by the U.S. 
Supreme Court almost 6 weeks ago.

Yes, you read that right. On March 28, the justices issued a stay of execution 
in Murphy v. Collier, a case involving the death penalty. On Monday, Alito 
issued his dissent, which was joined by Justices Clarence Thomas and Neil 
Gorsuch. (I’ve written about this case before, so we’ll not get into the facts 
here.) Angry justices taking their swipes at the majority is hardly uncommon, 
but there’s something peculiar about filing a dissent a month and a half after 
the actual decision. Peculiar — and also antithetical to the dignity that some 
of us still believe should mark the doing of the public’s business.

The occasion for Alito’s dissent was the Supreme Court’s order, also on Monday, 
denying review in a separate death-penalty case, Price v. Dunn. As if Alito’s 
written dissent in a 6-week-old case were not enough, Thomas also chose this as 
the moment to explain, in an opinion joined by Alito and Gorsuch, why the 
justices were right not to hear Price’s appeal the 1st time it reached them — 
which, for the record, was back in February. Meanwhile, Justice Brett 
Kavanaugh, joined by Chief Justice John Roberts, wrote to explain why he voted 
differently in two death-penalty cases, only one of which was still before the 
court.

Having trouble keeping keep up here? So is pretty much everybody else. Court 
observers found the flurry of opinions about past decisions “highly unusual.” 
The New York Times interpreted the sniping to mean “that feelings remain raw on 
a court that is increasingly divided over capital cases.” The Washington Post 
observed that the back-and-forth “exposed a bitter rift among members of the 
court on one of the most emotional and irreversible decisions they make.”

This isn’t the language normally used to describe a solemn, thoughtful branch 
of government whose decisions are entitled to respect due to the nature of the 
deliberative process that creates them. This is the language of chaos.

Now, don’t get me wrong. I’m not saying that the Supreme Court must constantly 
achieve consensus in order to maintain the popular respect so necessary to its 
work. Nevertheless, a quarrelsome court is not just indecorous — at some point, 
the justices fail the test of collegiality.

Actually, for about its first 140 years, the Supreme Court largely met this 
test. Unanimity was the preferred method of decision. Separate dissents or 
concurrences were rare. Then the New Deal happened, and during the 1930s, 
dissents occurred more frequently. And beginning in 1941, under the leadership 
(if that is the word) of freshly minted Chief Justice Harlan Fiske Stone, the 
tradition of consensus that had been characteristic of the Supreme Court for 
more than a century crumbled. On Stone’s watch, decisions featuring separate 
opinions became the norm; unanimity became the rarity. The justices have never 
swung back the other way.

In a thoughtful 2007 article, the legal scholar Todd Henderson argued that 
separate opinions tend to proliferate when their proliferation will tend to 
maximize the Supreme Court’s power. Certainly the New Deal dissents helped the 
court’s reputation among liberals. Even as the majority struck down one 
progressive reform after another, leading to an outcry on the left, the 
dissenters signaled to activists that they had friends on the high bench. In 
time and with new appointments, the dissents implied, judicial attitude toward 
government regulation might change.

And if you object that these dissenting signals helped create today’s 
court-centered view of governance, in which every vacancy takes on outsize 
importance, you’re probably correct. But we shouldn’t leap from that concern to 
an assumption that the modern court’s consistent fracturing and sniping harms 
its legitimacy. As my Bloomberg Opinion colleague Cass Sunstein pointed out in 
a 2015 article in the Cornell Law Review, the data is too scant to support the 
hypothesis that the court’s opinions are better received when they are 
unanimous.

As I said, don’t get me wrong. I think the search for consensus matters. A 
controversial article in the Harvard Law Review in 1959 argued that the 
justices would craft better opinions (and, implicitly, write fewer dissents) if 
they spent less time on cases not worthy of review and more in collective 
deliberation and reflection about the handful of truly important ones. The 
theory was thinly argued, a weakness that led to some scathing responses, but 
its central claim — that the court would do better work if its members spent 
more time in deliberation — is not entirely wrong.

It’s been a long while since my own days as a Supreme Court law clerk, but from 
what I’m told, things haven’t changed much. Justice Louis Brandeis’ famous 
dictum — “We do our own work” — can be a curse as much as a blessing. With the 
justices spending most of their time in separate chambers surrounded by 
admiring law clerks, and with some at both ends of the spectrum all but openly 
writing for their fan bases, there’s little incentive to be collegial.

Now and then, some veteran court watcher will tell a story about how Chief 
Justice Earl Warren told the other justices during deliberation over Brown v. 
Board of Education that nobody was writing a separate opinion, and that’s that. 
The story is almost certainly untrue. Certainly there’s no evidence for it.

Yet it’s a matter of historical record that Warren, along with Justice Felix 
Frankfurter, worked hard to achieve unanimity in the school segregation cases. 
Nowadays, Brown is regularly prefaced with “the Supreme Court’s unanimous 
opinion in” — the hard-earned unanimity having become a component part of the 
decision’s iconography.

Those of course were other days, and in many ways not better ones. And while 
the justices back then were probably as fractious as they are now, they were 
able to achieve consensus as they handed down what was then the most 
controversial decision in the court’s history.

This week’s bizarre sniping is depressing evidence that, on any current issue 
of remotely comparable importance or divisiveness, today’s court is unlikely to 
prove capable of speaking unanimously. We’re all worse off for it.

(source: Stephen Carter is a Bloomberg Opinion columnist. He is a professor of 
law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood 
Marshall----fredericknewspost.com)

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

Meet the former state executioner who's cheering for the decline of capital 
punishment in America



At a glance, you would never suspect Jerry Givens was once a state-sanctioned 
killer.

He is a deeply religious family man, who loves to laugh and sings in his 
church's choir.

But for 17 years he was the US state of Virginia's chief executioner, putting 
37 men to death in the electric chair and killing 25 others with lethal 
injections.

The whole time, he was sworn to secrecy.

Even his wife didn't know he had calmly, methodically ended 62 lives.

"It's a big thing to carry inside," he says.

His family finally found out about his job when they picked up a newspaper and 
learned he had been accused of a crime.

"[The executions] will be with me as long as I live," Mr Givens said.

Today, Mr Givens is trying to spread his grisly story as far and wide as he 
can.

For more than a decade, he said, he has been on a mission from God to stamp out 
the punishment he once so methodically carried out.

The slow, yet steady, decline in the death penalty across America suggests to 
him he is helping win over hearts and minds.

An executioner's routine

2 decades have passed since he last carried out an execution, but the procedure 
is still clearly imprinted in his mind.

The condemned would come into his care 15 days prior to their date with death 
and immediately undergo a complete physical examination to make sure they were 
healthy.

On their final day, family farewells were at 3:00pm, a last meal was served 
around 6:00pm and inmates took their last steps to the death chamber just 
before 9:00pm.

Mr Givens prayed with the condemned and focused on their needs.

Most confessed terrible crimes to him and were calm, he said — they had no idea 
he was the one who would end their lives.

"I think a lot of them were crying on the inside. None struggled, " he said.

When the inmates were strapped to the electric chair or padded gurney, they 
were given a chance to utter a few final words.

The prison warden would then give a signal, such as a flick of his glasses, and 
Mr Givens would swing into action.

"When it comes down to pushing that [electric chair] button, the only thing you 
could hear was the machine humming," he said.

"But when it comes down to lethal injection you got the syringe in your hand 
and you're watching the chemicals go down in a plastic tube into his arm. You 
feel more attached."

If he had to be executed, Mr Givens said he would choose the electric chair — 
because it's quicker.

The journey to anti-death penalty advocate

Mr Givens started his career as a prison guard and volunteered to assist in 
putting people to death.

Then, when the chief executioner retired, he stepped into the role.

Mr Givens said sometimes electrocutions would cause nosebleeds, particularly if 
the mask was not properly put on.

He said it was also sometimes difficult to find veins large enough on former 
drug users to administer a lethal dose via an injection.

"There's no perfect painless way to take someone's life," he said.

He claimed an execution never went badly on his watch, though several he 
carried out are listed as "botched" on the Death Penalty Information Centre's 
website.

Yet as his career progressed, major doubts began to emerge.

'Once there's doubt, you can't get rid of it'

It was ultimately the exoneration of Earl Washington — a death row inmate with 
the IQ of a 10-year-old child — that eroded Mr Givens' support for capital 
punishment.

Mr Washington was just 9 days away from execution for the rape and murder of a 
Virginia woman before doubts were raised about his involvement in the crime.

DNA evidence cleared him, and he was later freed.

"Once there's doubt, you can't get rid of it," he said.

Mr Givens wanted to stop, and planned to stand down once he had carried out 100 
executions.

But his career ended before that milestone when he was forced to resign in 
1999, after being charged with money laundering and lying by a grand jury.

Mr Givens — who still maintains his innocence — had bought cars on behalf of a 
childhood friend, a former drug dealer, who he thought had changed his ways.

A stint behind bars helped transform the executioner to an anti-death penalty 
advocate.

He said he realised capital punishment was not consistent with God's teaching, 
and decided the Lord wanted him to spread the word.

The death penalty in decline

The campaign against the death penalty in the US is continuing to gain 
traction.

In 1999, 98 people were put to death, but so far this year just eight have 
faced the needle.

20 states have abolished capital punishment, and New Hampshire seems likely to 
become the 21st.

California, which has the most people currently on death row in the country, 
recently announced a moratorium and removed equipment from its execution 
chamber.

Embed: The number of inmates put to death in the US in the past 20 years

"We're seeing one by one, states move away from the death penalty," Robert 
Dunham, the executive director of the Death Penalty Information Centre said.

"On a country level too, prosecutors are pursuing it less frequently."

Mr Givens' state of Virginia is a good example.

It has a long history of executions — the 1st took place in the Jamestown 
colony in 1608. But just three people now remain on Virginia's death row, and 
there hasn't been a capital sentence handed down since 2011.

'I take no joy or satisfaction from it'

Not everyone is pleased by the trend.

Prosecutor Paul Ebert has sent 15 people to Virginia's death row, more than 
anyone else in the state, over a career spanning more than half a century.

He believes the ultimate penalty deters violent crime, but said opposition to 
it has made it harder to pursue — and has also made it more difficult to 
convince a jury to sentence someone to die.

"You've got more and more money spent by the defence and less assets for the 
prosecution. That's one big thing," the Prince William County Commonwealth's 
Attorney said.

Mr Ebert's biggest courtroom victory was the death sentence given to the man 
known as the DC sniper, John Allen Muhammad.

Muhammad and his partner randomly shot people around the Washington DC area, 
terrorising the US capital over a 3-week period in October 2002.

Mr Ebert, who was elected to his role 13 times as a Democrat, said he had no 
doubt the mass murderer deserved a lethal injection.

"I've had several people that did not believe in the death penalty until they 
lost a loved one. Then suddenly they could see a need for it," he said.

"I take no joy or satisfaction from it. We have laws and punishments supported 
by the people and they should be followed and carried out after a fair trial."

Surveys consistently show that a majority of Americans are in favour of the 
death penalty.

A Gallup Poll in 2018 put overall support at 56 % — down from 80 % in the 
mid-1990s.

President Donald Trump is strongly in favour of it and the nation's highest 
court, which has a conservative majority, is unlikely to strike it down 
nationwide any time soon.

So, for the foreseeable future, prosecutors in 30 American states will continue 
to face a choice for the worst cases — should they ask for death or not?

"The defence counsel always says it's far worse to be imprisoned for life than 
face the death penalty," Mr Ebert said.

"But the accused always have the option of choosing death — and they don't."

The executioner's suffering

Mr Givens, who has been both jailer and prisoner, disagrees.

"The guys … on death row would say to me, 'you constantly die every day sitting 
on death row,'" he said.

So, does he now regret his role in killing 62 people?

"No," he said.

"62 sets of eyes that I closed are gone, but what's left open are the eyes of 
billions who I can talk to these things about."

"If a condemned man gives himself to Christ and asks for forgiveness, this is 
not the end for him. This is only the beginning. He don't have no suffering," 
he said.

"Those who have to suffer are those you leave behind, including the 
executioner."

(source: abc.net.au)