Category: Death Penalty

The Stench Gets Some Air Freshener

Yesterday, I wrote that the stench of politics had taken hold at the Justice Department when, at the last minute, it decided to deep-six a brief supporting the sound analysis of the Eleventh Circuit in a crack cocaine sentencing case and argue instead that the overall “intent” of two leniency-oriented statutes, the Fair Sentencing Act and the First Step Act, should displace their plain text.  A unanimous SCOTUS made short work of DOJ’s lame appeal to duck the words Congress chose in favor of a more Oprah Winfrey-like approach.  The only conceivable reason for the Department’s unprincipled, embarrassing and (fortunately) futile action was politics  —   specifically, that pro-drug and pro-criminal elements in the President’s political base simply wanted what they wanted.  That DOJ at its highest levels would so easily be chased away from a sober approach to its legal obligations is alarming.

I’m happy to report that, today, we saw a different face.

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Pew Research Has Big News on the Death Penalty

Here are the opening paragraphs of this story, reported by the NYT:

For the first time in almost half a century, support for the death penalty has dipped below 50 percent in the United States.

Just 49 percent of Americans say they support capital punishment, according to a Pew Research Center poll … That represents a seven-point decline in about a year and a half. Support peaked at 80 percent in 1994.

The death penalty has had majority support among Americans for 45 years. The last time support was as low as it now stands was in 1971.

Not good news for the folks on my side of the issue.  But wait, there’s a catch.

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More Coverage on the CA Death Penalty Case

LA Times reporter Maura Dolan has this comprehensive piece on the California Supreme Court’s oral argument in People v. McDaniel.  The question before the court is whether or not the law requires that a jury decide beyond a reasonable doubt that a defendant should get the death penalty or life without parole, and the jury must also be unanimous in deciding the reasons for a capital verdict?  This requirement has never been part of the law or any accepted precedent.  If the court agreed, a ruling would probably throw out hundreds, if not all, previous death sentences in California.  An important takeaway from yesterday’s argument was the questioning of the murderer’s lawyer by Justice Goodwin Liu, a key liberal member of the Court, who asked if it is possible  “that this issue has simply been missed this entire time? For 150 years, we have missed this issue?”

California Supreme Court Hears Argument Challenging Death Penalty Law

The California Supreme Court heard oral argument today in People v. McDaniel.  Donte McDaniel was convicted in 2009 of two brutal murders and attempted murder on two others.  In 2004, McDaniel and his accomplice entered a woman’s Los Angeles apartment looking for a man who had stolen drugs from another member of the gang he belongs to, the Bounty Hunter Bloods (BHB). McDaniel began firing as he walked in the door, shooting and killing the woman, then shooting the man he was looking for  so may times in the head that his face collapsed.  He shot two other women in the apartment, not involved in the drug dispute, critically injuring them both and leaving them permanently disabled.

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The Death Penalty Is Dying…….Oh…….Wait………………

For years, we’ve been told that “the death penalty is dying.”  And it’s true that, as the murder rate fell by more than 50% over a generation (1990-2014), support for death sentences likewise fell substantially (although not as much, from 80% in the mid-Nineties to 55% today (still a bigger share of popular support than Joe Biden got)).  The number of executions also substantially fell, but is hardly disappearing, since over the last five years, we’ve averaged one execution every 17 days (see this bar graph).

So it’s just not true that the death penalty is dying.  It became less frequent as the need for it became less frequent, sure.  This is news?  But the reason for its persistence is no big mystery.  It’s not that America is a primitive, vindictive country.  It’s not that we are callous or sadistic.  It’s that there continue to be gruesome, atrocious murders for which a jail sentence, no matter what its length, would not strike a normal person as fitting the crime.  The most recent example comes from a county and state that were crucial in President Trump’s defeat.

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When Execution Drugs Are in Short Supply…

…alternative methods will be found.  Since, as the Court held in Glossip, “the death penalty is constitutional,” and since a majority of our citizens continue to support it, and since gruesome murders continue to be committed that warrant it, we will continue to administer it.  This is true despite false claims that “the death penalty is dying.”  Instead, over the last five years, we have had an average of one execution every 17 days, and, after years of decline (as the murder rate declined), support for capital punishment has held stable at 55% over that time.

The latest news is from South Carolina, which is bringing back firing squads.

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Arizona to Resume Executions

Arizona Attorney General Mark Brnovich is moving forward to resume executions.  Jill Ryan of the Associated Press reports that the state’s last execution was in 2014 when murderer Joseph Wood was put to death.   Like several other death penalty states, Arizona has been unable to carry out death sentences due to pressure by the European Union and other anti-death penalty groups to block drug manufactures from selling their products to states for use in executions.  Last month, US News reported that the state had obtained pentobarbital, the preferred anesthetic used to euthanize condemned murderers. 

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Why Did SCOTUS Take the Boston Marathon Bomber Case?

As Kent reported yesterday the Supreme Court granted the government’s petition for cert in the Boston Marathon bomber case.  The questions presented are whether the trial court held a sufficiently extensive voir dire, and whether it erred by excluding evidence that the bomber’s older brother was allegedly involved in different crimes two years before the Boston Marathon murders.

I spent the first few years of my career at the Justice Department answering defendants’ petitions for cert.  The thing that immediately struck me about the government’s cert petition was that the questions presented went only to the application of reasonably settled law to the facts of an individual case.  That is generally a classic formulation of a reason that the Court will not grant review.  There is no broadly applicable area of law in need of elaboration, and no circuit split.

It could be that the case is sufficiently notorious that the Court thought it worthy of review simply standing on its own.  But that seems unlikely; the Court tends to use its scarce time to address contentious legal questions regardless of a case’s public notoriety.  So what’s going on? Continue reading . . .

Brutal Murderer’s Death Sentence Upheld

Oklahoma’s highest criminal court has upheld the conviction and death sentence of a man who beheaded one woman and injured another in September of 2014.  The Associated Press reports that the court rejected murderer Alton Nolen’s not guilty by reason of insanity claim.  Abby Uhlheiser of the Washington Post reports that of Nolen, an habitual felon who converted to Islam while in prison,  had been suspended from his job at a food processing plant and sought revenge later that day.   That afternoon Nolan entered the company’s administrative office armed with a large serrated knife, and approached 54-year-old Coleen Hufford from behind.  In front of witnesses Nolen beheaded the woman and then attacked another female employee before a company security officer shot Nolen, stopping the attack.

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