Death Penalty

Today, the Supreme Court, in the case of Baze v. Rees, ruled 7-2 that lethal injection is constitutional, in Kentucky and elsewhere, as long as there is no "substantial risk of severe pain", and as long as there is no alternative procedure which is "feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." (The opinion is available here.)

What this means in practice, outside of Kentucky, is way less than clear.  It is a fractured 97-page ruling featuring 7 separate opinions which debate not only lethal injection but the death penalty itself.  Only two other justices joined Chief Justice Roberts in his plurality opinion.  Three other justices, who concurred with the result, argued in separate opinions that this decision will not end the debate. 

In his concurring opinion, Justice Stevens writes: "The question whether a similar three drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record."

And in their concurring opinion, Justices Thomas and Scalia worry that the plurality's opinion "casts constitutional doubt on long-accepted methods of execution."  They go on to warn that:

... today's decision is sure to engender more litigation. At what point does a risk become "substantial"? Which alternative procedures are "feasible" and "readily implemented"? When is a reduction in risk "significant"? What penological justifications are "legitimate"? Such are the questions the lower courts will have to grapple with in the wake of today's decision. Needless to say, we have left the States with nothing resembling a bright-line rule.

Justice Alito, in his concurrence defending the plurality, argues back that this won't happen if the decision is "properly understood."  He also addressed the issue of health professional participation in executions, arguing that:

... a suggested modification of a lethal injection protocol cannot be regarded as "feasible" or "readily" available if the modification would require participation - either in carrying out the execution or in training those who carry out the execution - by persons whose professional ethics rules or traditions impede their participation.

In other words, according to Justice Alito, a lethal injection protocol is constitutional unless there is a "substantial risk" of pain that can be readily reduced by an alternative that doesn't involve health professionals.

Then there is the second part of Justice Stevens' concurrence, where he argues against the constitutionality of the death penalty itself; another concurrence, by Scalia and Thomas, responds to Stevens' arguments about the death penalty without really talking about lethal injection at all.

Here is Amnesty International's statement that this "preoccupation with lethal injection" is a "distraction from myriad problems currently plaguing the death penalty system."

Brian

DPAC

There is good news and bad news in Amnesty International's 2007 Death Penalty Statistics.  The good news is that the world, slowly but surely, continues to move away from the death penalty.   With Uzbekistan's abolition of capital punishment in January of this year, there are now 135 countries which have rejected the death penalty in law or practice.  That's two-thirds of the countries of the world.

Executions here in the U.S. were down (42 in 2007, down from 53 in 2006), though this is partly attributable to the de facto moratorium imposed by the Supreme Court's decision to hear the Baze v. Rees lethal injection case.  Death sentences in the U.S. in 2007 were at the same low levels as in 2006, lower in fact that at any time since the 1970s.  Along with this significant drop in death sentences, we have seen the abolition of capital punishment in New Jersey, three exonerations from U.S. death rows in 2007 (and two already this year), and public opinion polls which show a growing preference for alternatives to the death penalty.  All of this indicates that the trend in the U.S. has begun to mirror the global trend - away from the death penalty.

Even executions in China are down - at least the ones we know about.  And the government has announced some potentially important reforms involving judicial oversight of death sentences.  Unfortunately, there is extreme secrecy surrounding capital punishment in China; most information on the death penalty in China is classified as a "state secret" and those who reveal such "state secrets" can be and are punished severely.  So we don't really know how many executions there are in China.  Amnesty International documented 470 in 2007, but there could have been as many as 6,000.  And we don't really know if or to what extent any of the announced reforms have been implemented.

Aside from China's secretive practices, more bad news emerged from Iran and Saudi Arabia, where the number of known executions increased sharply (Iran: 317 in 2007, 177 in 2006; Saudi Arabia: 143 in 2007, 39 in 2006).  In both these countries juvenile offenders were also put to death - 7 in Iran and 2 in Saudi Arabia - despite the clear international prohibition on such executions.

But even with such disturbing developments the long-term trend around the world is clear - and in recent years hints of this trend have become apparent in the U.S. as well.  Only 24 countries carried out executions in 2007, and only 10 states in the U.S.  Use of the death penalty is dwindling.  Support for it is fading.

Brian

DPAC

Overblown claims about security threats to justify government secrecy are an all too common feature of our current political landscape.  But executions are a government function and the public has a right to know how, and by whom, they are carried out.  So when the state of Kentucky finally made public its execution protocols, after being ordered to do so by the Supreme Court in connection with the pending Baze v. Rees lethal injection case, it was disturbing not only to read a detailed clinical description of how the state intends to kill someone, but to see that portions have been redacted.

The times of inmate visits and the start time for executions are redacted, which the Kentucky Justice and Public Safety Cabinet justifies because "[t]his information could potentially be used by inmates or the public to disrupt an execution or to breach institutional security."

When has this ever happened? 

And job titles for personnel involved in pre-execution monitoring of the prisoner are redacted.  Most of these appear to be medical positions, judging by the tasks they are called on to perform.  Again, the Kentucky Justice and Public Safety Cabinet justifies redacting these positions by arguing that "identification [of] the position title is paramount [I think they mean tantamount] to disclosure of the individuals holding these positions" and that redaction is need to "protect the employees holding these positions." 

Protect employees from what?  This document does not say.

In fact, this kind of secrecy has more to do with shame than with any security concerns, real or imagined.  Most people (particularly medical professionals) don't want to be widely known for participating in executions, and for good reason; killing people is generally considered to be a bad thing. 

Nonetheless, the public has a right to know who is involved in perhaps the most serious act a government can carry out on their behalf.  Secrecy enables the covering up of incompetence.  The ACLU and the Rutherford Institute illustrate this point in their amicus brief in the Baze case:

"However, when this secrecy has on occasion been pierced, the results have sometimes been profoundly unsettling.  In Missouri, for example, when the press uncovered the identity of the state's lethal injection supervisor, it also learned that he had confused dosages during executions, had a number of malpractice actions filed against him, and had lost his privileges to practice at two hospitals."

(None of these revelations, by the way, prevented this doctor - Alan Doerhoff - from later being appointed to a Federal execution team in Indiana.)

Missouri's reaction to this debacle was to take secrecy up a notch, passing a "hooded executioner" law that, in a rather flagrant assault on the First Amendment, allows the state's executioners to sue anyone, including a journalist, who reveals their secret identity.  Dubious claims about the need for security were made in support of that new law, and the same kind of security/secrecy argument is apparent in the Kentucky documents. 

But secrecy never makes for good government; shielding government actions and actors from public scrutiny also shields them from accountability. The death penalty is the ultimate expression of Big Government power - all the more reason it should never be cloaked in secrecy.  States that intend to use the death penalty should not be afraid, or ashamed, to reveal to the public who is killing in their name.

Brian

DPAC

It has been two weeks since the Nebraska Unicameral rejected LB 1063, the legislative bill to repeal the death penalty in the state of Nebraska.  Time away from the event has been beneficial, giving me pause to reflect and gain some clarity on abolition in Nebraska. 

I think the morning of March 25^th (the day of the legislative debate) was a day of hope and empowerment.  That morning I met fellow abolitionists on the steps of the State Capitol to rally support.  Although many are still strangers to me, I felt the camaraderie of those sharing an element of my worldview.  One woman I spoke to in the crowd attended one of our sponsored death penalty events in Omaha.  In her own words, she was so moved by the passion and excitement of the members of Amnesty International, she took off work driving an hour to Lincoln to take part in the rally.  Despite moments of feeling disenfranchised with our eventual defeat in the legislature, I cannot help but feel invigorated by our capacity to make positive change and influence others to take social action.  It truly is a celebration when people come together to creatively practice democracy.  I feel the supporters in attendance on that day are in it for the duration.

As I made my way through the crowd and into the visitor's gallery, I distributed our Amnesty International buttons to roughly 85 people that Tuesday morning, more than the 50 to 60 people reported by the press.  It was impressive when our group of abolitionists, the majority wearing white, moved into the legislative quarters.  The visitors' gallery was a sheer wall of white, causing many senators to stop what they were doing.  They just looked upwards at us, and I believe the symbolism was not lost on them.  This silent demonstration of solidarity had its impact, and I could see and feel the power play taking place on the floor below.  One senator mentioned that the State Attorney General had been busy calling senators that particular morning offering a veiled threat; if they voted for LB 1063 , they would not get re-elected.  I believe this maneuver had roots in the fact that the Governor and the State Attorney General knew that LB 1063 had the public's support.  In their concern to kill the bill, they resorted to drastic measures.  In fact, some senators communicated to those in our movement that they "got the message already."  They had been inundated with letters and postcards from constituents asking for repeal.

Our efforts for abolition over the past few months have not been in vain.  In fact, I feel strongly that Amnesty International made huge strides in spreading and expanding the dialogue of abolition, if not by just targeting Omaha for events on the death penalty.  I believe the movement of abolition will not only sustain itself in Nebraska, but also expand with the increasing grass roots spirit we are building.

Susan F Mitchell

OUTfront Coordinator NE

Amnesty International Chapter 13

Omaha, NE

We often say that those who end up on death row are usually not the "worst of the worst" but those with the worst lawyers.  Yesterday Senator Russell Feingold held a hearing on The Adequacy of Representation in Capital Cases; the witnesses suggested that bad lawyering was a central problem with the death penalty in the US.  Innocent people can be convicted when their lawyers are bad (that should go without saying), but bad lawyers also sabotage their client's chances during the appeals process: by failing to raise important issues early, good lawyers cannot raise them later. 

Among the examples of bad lawyering testimony from Bryan Stevenson of the Equal Justice Initiative in Alabama at this hearing revealed:

• A lawyer who called no witnesses and waived opening and closing statements in the sentencing phase of a death penalty trial
• A lawyer abusing alcohol and addicted to drugs who went into rehab 3 weeks after the trial and was so hostile to his client that, at one point, he asked guards to remove his client's handcuffs so he could "kick his ass"
• A lawyer who moved his office without notifying the court or his client and thus missed a deadline for filing an appeal

There are of course many other examples; the legacy of sleeping lawyers, overworked lawyers, and lawyers more interested in pleasing the court than in defending their client is well known.

Death penalty cases are inherently complicated, and the stakes are life and death, so it would seem natural that we should endeavor to ensure that the best lawyers take these cases.  In fact, few lawyers want these cases, because they are difficult both technically and emotionally, and because funding is almost always inadequate to do the job required (most capital case defendants are indigent, and many states limit the amount a public defender can get to represent someone in a capital case, limits that are usually way too low). 

There is also no right to counsel during the appeals process, and there are time limits for death row prisoners to find a lawyer and for lawyers to file appeals.  Failing to object or raise issues early, or missing deadlines, are the kinds of technicalities that appeals courts cite all the time to deny hearings on questions of bias, misconduct or even innocence.  And the deference to state courts that is enshrined in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) has often shielded bad lawyering and other problems at the state level from meaningful review at the federal level.

What is to be done?  The hearing was short on suggested solutions, beyond the obvious needs for more money and better training, but many of these problems are particular to the capital punishment.  The death penalty is the only punishment we have that is implemented AFTER the appeals process has run its course, and this has created a natural incentive to speed things up, to set up time-limits and procedural bars that allow the courts to gloss over errors caused by bad lawyering (among other things) so we can get to the finality of an execution.  Without the death penalty, we wouldn't have this rush to finality; the quality of representation could get the review it deserves.  And we wouldn't end up killing somebody because his lawyer was one of the "worst of the worst".

Brian

DPAC