2017-11-09 14:16:58 UTC
Ill Ohio inmate asks US Supreme Court to halt execution
A condemned Ohio killer who argues he is too ill to execute has asked the U.S.
Supreme Court to delay his upcoming execution.
Attorneys for death row inmate Alva Campbell say his breathing problems and
poor veins will create a spectacle when lethal injection is attempted.
They also argue he was regularly beaten, sexually abused and tortured as a
child. Attorneys late last week asked the high court to stop Campbell's Nov. 15
The state was expected to oppose the request.
Court documents indicate Ohio's prisons system may provide a wedge-shaped
pillow to elevate Campbell and facilitate his breathing during the execution.
Prosecutors said Campbell's health claims are ironic given he faked paralysis
to escape court custody the day he killed 18-year-old Charles Dials in 1997.
(source: Associated Press)
Jury declines death penalty option in Howland capital murder trial----The jury
has returned for its verdict in the Nasser Hamad case after deliberating for
over 10 hours
After deliberating for over 10 hours to decide the fate of convicted killer
Nasser Hamad, the jury declined the death penalty option in a Howland capital
The jury suggested a life sentence with parole eligibility after 30 years.
Trumbull County Common Pleas Judge Ronald Rice will have the ultimate say in
sentencing. He'll make his decision at 1:30 p.m. Wednesday.
Because the jury didn't recommend death, Judge Rice cannot impose a death
sentence. He will be asked by the prosecution for 2 consecutive 30-year-to-life
sentences, however, because Hamad was convicted of 2 murder charges.
Jurors were sequestered just before 9:30 p.m.Tuesday night and returned to the
courtroom Wednesday around 10 a.m. to give their decision.
Hamad was convicted last week of 2 counts of aggravated murder and 6 counts of
attempted aggravated murder with firearm specifications. The jury deliberated
less than 2 hours to decide his guilt.
Trumbull County Assistant Prosecutor Chris Becker took his last moments in
front of the jury Tuesday to remind them that Hamad attempted to kill 5 people
and was successful in taking the lives of 2.
Prosecutors reiterated that the death penalty was appropriate in this case.
"The state position is that it is not even close. It just isn't and that leaves
you no other choice under the law but to go back to the jury room and find the
death sentence appropriate," said Trumbull County Assistance Prosecutor Mike
Hamad's attorney told the jury that this was their opportunity to show mercy.
He also reminded jurors of testimony depicting Hamad as a good father, a hard
worker and that he suffered from PTSD.
Hamad was convicted in the shooting deaths of 19-year-old Josh Haber and
20-year-old Josh Williams outside his Route 46 home in Howland. 43-year-old
April Trent, 20-year-old Bryce Hendrickson and 17-year-old John Shively were
injured in the shooting. Hendrickson died later from unrelated causes.
Hamad had maintained that he was acting in self-defense, and the group that
came to his house that day had been harassing him and making threats in an
ongoing dispute on social media and among other family members.
(source: WKBN news)
Arkansas got execution drug made by resistant manufacturer
1 of the 3 drugs Arkansas planned to use in a lethal injection this week was
made by a New York company that says it won't sell its products if it fears
they'll be used in executions, court documents released Wednesday show.
A package insert and drug label for the state's supply of midazolam released by
the state in Pulaski County Circuit Court identifies Athenex as the maker of
the drug, 1 of 3 used in Arkansas' lethal injection process. The insert was
included as part of an affidavit filed by state Correction Department
The affidavit was filed the day after Pulaski County Circuit Judge Mackie
Pierce ordered the Department of Correction to release a copy of the insert to
Steven Shults, an attorney who had sued the state for the document. The
Arkansas Supreme Court last week ruled that a state law keeping the source of
Arkansas' execution drugs secret applied to suppliers and sellers, but not drug
manufacturers. Pierce ruled Wednesday that other information on the drug label
that could be used to identify the drug's seller can be withheld.
The company did not immediately respond to a request for comment, but said in a
statement posted on its website Wednesday that it "does not want any of our
products used in capital punishment."
"Athenex does not accept orders from correctional facilities and prison systems
for products believed to be part of certain states' lethal injection
protocols," the company said in the statement. "Further, Athenex distributors
and wholesalers have agreements with Athenex not to sell or distribute any such
products to these facilities. Athenex does not distribute these products
through wholesalers unwilling to implement distribution control to prevent
Arkansas has planned to use the drug Thursday to put convicted murderer Jack
Greene to death, but the state Supreme Court halted his execution Tuesday so
that it can consider a lawsuit related to claims that Greene is severely
mentally ill. The state is not appealing that order.
Arkansas has not executed an inmate since April, when the state put 4 murderers
to death over an 8-day period. The state originally planned to execute 8
inmates that month, before its previous supply of midazolam expired, but 4
executions were halted by the courts. 2 pharmaceutical companies unsuccessfully
tried to block the state from using their drugs in the executions. A case is
pending before the state Supreme Court over a challenge from a medical supply
company, which said it was misled by Arkansas prison officials who bought one
of its execution drugs.
Arkansas Gov. Asa Hutchinson scheduled Greene's execution after state officials
said they had obtained a new midazolam supply. The state said it paid $250 in
cash for enough of the drug to carry out 2 executions.
(source: Associated Press)
Captial murder trial seeking death punishment delayed
A capital murder suspect is expected to stand before a Faulkner County judge
for a pretrial hearing exactly 2 years from his arrest date in early 2018.
The case is the 1st in more than 30 years where prosecutors in Faulkner County
are seeking the death penalty.
Attorneys representing suspect Scotty Ray Gardner, 56, cite a need for more
time to prepare for trial.
"Although counsel is working as diligently as possible to prepare this case for
trial, it is not possible for this case to be adequately prepared as currently
scheduled," Defense Attorney Katherine S. Streett wrote in a motion to Circuit
Judge Charles "Ed" Clawson Jr. requesting to delay the trial.
Streett and Defense Attorney T. Scott Brisendine said they now have a lead on
"potentially mitigating evidence" and will need more time to investigate and
prepare for trial.
"Specifically, a continuance is necessary due to the recent discovery by the
defense of potentially mitigating evidence which requires further
investigation," the motion reads. "Because the evidence at issue is located in
another state and dates from several decades ago, the investigation into this
information will likely be more time consuming than would otherwise be
Gardner is suspected in the March 6, 2016, hotel slaying of Susan "Heather"
He was accused in Stubbs's death after a hotel clerk found her lying facedown
in Room 114 of Days Inn on Oak Street. When police arrived, she was found
strangled to death from a cord.
According to an affidavit, Gardner told prosecutors anger and jealousy caused
him to snap the day he allegedly killed Stubbs.
The 2 had been staying in Room 114 since Feb. 21 and Gardner said he became
upset when he noticed Stubbs talking to other men walking past their room on
Gardner told officers he was still upset with Stubbs from a previous incident,
"but had been trying to forgive her for it until this new incident happened,"
referencing a Dec. 19 incident where Stubbs filed a 3rd-degree battery report
"He said he knew that he could not just grab her and throw her on the bed
because she would go and tell on him. He said everything just kept building up
and he had just snapped. Scotty said the only thing he knew was that he 'was
not going to let Heather go tell the police nothing,'" the affidavit reads.
At one point during the heated argument, Gardner "eventually grabbed a nearby
cord and 'wrapped it around her neck'" when she tried to scratch him in
defense, according to the affidavit.
'I might have killed her ... I don't know," he said, adding he then left to go
gambling to avoid thinking about the situation.
Gardner has been charged as a habitual offender in the past. He was sentenced
to Arkansas Department of Corrections (ADC) in October 1991 and served 23 years
of his sentence.
On Nov. 8, 1990, Gardner was charged with 2 counts of criminal attempt to
commit 1st-degree murder.
He was sentenced to 2 30-year concurrent terms, with 7 years of each term
The case was later reopened and he was convicted of 1st-degree criminal attempt
to commit murder and 1 count of 1st-degree battery for shooting his then-wife,
who was pregnant.
He was paroled from ADC on Dec. 4, 2015, about 3 months before he allegedly
Clawson agreed Tuesday to move the trial to next summer, resetting the 2-week
trial for Aug. 14-24.
Gardner is set to appear in Faulkner County Circuit Court prior to the trial
for a pretrial hearing at 1 p.m. March 7, which is exactly 2 years after he was
arrested on the aforementioned capital murder charge.
Coulter Dies in Death Row Cell
An inmate who was sentenced to death almost 30 years ago by an Ashley County
jury was found dead in his cell last week.
In October of 1989, an Ashley County jury sent Roger Coulter to death row for
brutally killing and raping 5 year old Natasha Phelps of Bradley County.
The prosecutor at that time, John Frank Gibson, and the bailiff back then,
David Oliver both said it is still to this day the worse case they've ever
"It was horrible. It really upset me because I had a 5 year old daughter at
that time," Gibson said.
According to Oliver, coulter tortured the child, raped her and strangled her.
"I saw the photographs; it made me sick to my stomach," Oliver said. "It was
Court documents read that Coulter was living with his victim's mother up until
he kidnapped the child. In April of 1989, Coulter was supposed to give Phelps a
ride to school, but the school reported the child never made it that day. The
family reported her missing, and her body was found a day later in a hollowed
out tree covered with sticks and limbs.
Coulter was convicted of capital murder in the Circuit Court of Ashley County
in October of 1989 and sentenced to death by lethal injection.
Gibson says Coulter was successful at getting the death penalty delayed by
asserting he was retarded. "But he never asserted that in the trial." Gibson
In 1991, The Supreme Court reaffirmed his conviction and Coulter was waiting on
death row all of this time.
Coulter was in the custody of the Arkansas Department of Corrections and was
being held at the Varner unit. According to the ADC, Coulter, now age 57, was
found unresponsive in his cell last Friday evening around 6:30, and was
declared dead less than an hour later.
(source: Ashley County Ledger)
Collings Appeals Death Sentence and Conviction in Murder of 9 Year Old Rowan
Today marked the2nd Missouri Supreme court appeal for Christopher Collings. He
was earlier convicted and sentenced to death for the 2007 rape and murder of
9-year-old Rowan Ford.
An attorney from the public defenders office in Columbia offered arguments
today before Missouri Supreme court justices asking them to prevent Collings'
execution and overturn his conviction.
Collings' attorney said his conviction was based on 2 legal fictions that went
unchallenged by his previous counsel. One, that he was sober when committing
the crime and the 2nd that his brain was able to form accurate memories to
offer a confession considering his history of substance abuse including the
night of Ford's murder.
Because it is a death penalty case Collings had a previous direct appeal to the
state's high court. That appeal was denied.
The new appeal comes just 1 day before the 10th anniversary of the discovery of
Rowan Ford's body on November 9th, 2007.
Her body had been thrown into a hole in the ground in McDonald county known as
The appeal and the anniversary bring up raw emotions for everyone in Rowan's
hometown of Stella, Missouri. Some there say the crime put the town on the map
for all the wrong reasons and they long for justice.
Becca Hance said, "It hits you hard especially when it's one of your own. And
this magnitude of tragedy, it's something you never forget."
Hance walked Rowan home from the Stella Baptist church Wednesday nights. It's
what she called a safe place for Rowan who arrived before everyone else and sat
on the steps. 10 years later she said the hurt doesn't stop.
Hance explained, "Until justice has been 100 % served, I don't think it will
ever go away." Becca and others aren't happy with the 2nd supreme court appeal
for convicted killer Chris Collings.
She said, "No amount of punishment will every justify what happened to Rowan
and he shouldn't get the option to change his sentencing."
Nine year old Rowan was taken from her Stella home the night of November 2nd,
2007. Collings confessed to raping and strangling her and then dumping her body
in McDonald county. Newton county Sheriff Chris Jennings said, "In all my years
of law enforcement, that's probably the most horrendous crime, not just because
it was a child that was murdered, but how she was murdered. So, yes, I've never
forgotten about it." Jennings was then Chief deputy on the case and keeps
Rowan's photo id in his card case.
He said, "I've carried it, like I said every day since she first disappeared."
Ken Copeland was sheriff at the time of the case which he still finds
upsetting. He said Collings got a fair trial with 2 top notch public defenders.
He says it's a shame there are so many appeals when Rowan didn't have a chance
to appeal for her life.
Tracey Welch shares his sentiment, "She had no chance. The things those men or
that man did to her were unthinkable."
Welch was principal at Tri-way elementary, Rowans school and says Collings took
the life of an innocent child.
Welch elaborated, "Who had nothing but goodness and joy in her heart. And he
stole that from her violently and brutally with no thought of what she was
going through, none, none at all. And he killed her because 'Oh my God! She
might have known who I was." I have no sympathy for that."
The community is not just upset about Collings and the appeal. But that Rowan's
stepfather, David Spears who was another suspect, is now out of jail having
plead guilty to a lesser charge of endangering the welfare of a child.
Becca Hance lamented, "He's living life freely...Chris has an appeal and Rowan,
her life was cut short at 9 and that's just not, just not fair."
Attorneys for Collings also dispute his confession because Spears also
confessed. Public defender's say attorneys during trial should have called
attention to differences in those confessions and the fact that k9 officers
pointed to a vehicle Spears borrowed from his mother.
Rowan's mother said in 10 years nothing's changed. She said Rowan hasn't been
vindicated. She hopes the high court denies Collings appeal a 2nd time.
Rowan was killed after Collings, Spears and another man had a night of drinking
and smoking marijuana. Intoxication and substance abuse are part of the basis
of Collings appeal.
Why Kansas has not used the death penalty
"It's the most unbelievable horrible thing that could ever happen to a person
and it happened to my daughter," said Brian Sanderholm sitting in his Arkansas
Ten years later, Sanderholm still struggles with his daughter's murder. In 2007
his daughter Jodi Sanderholm was abducted, raped and murdered. Investigators
would later arrest Justin Thurber for the unthinkable crime.
"He tortured Jodi," said Brian.
"For hours," chimed in mother Cindy
He was sentenced to death for the crime. Including Thurber, 9 men are currently
sentenced to death in the state, but Kansas has not executed an inmate in more
than 50 years.
"Well, the death penalty in Kansas doesn't work," said Brian.
"That's the problem," said Cindy.
Our investigation found an appeals process that's notoriously slow and a state
supreme court that has consistently ruled in favor of defendants. One example:
convicted serial killer John Edward Robinson. He struck a deal with prosecutors
in Missouri to avoid the death penalty, but for murders in Kansas, he was
willing to risk it. The reason: since 1976 Missouri has executed 87 inmates and
Kansas has executed none.
"These cases have dragged on for such a very long period of time. Some of the
early cases after the legislature re-instituted the death penalty in 1994 are
particularly long," said Kansas Attorney General Derek Schmidt.
The Kansas Supreme Court has also overturned a number of death sentences,
including the Carr brothers, convicted of a crime spree that ended with four
counts of capital murder and 1 count 1st-degree murder. It was a case that went
all the way to the nation's highest court. In an 8 to 1 ruling the U.S. Supreme
Court reinstated the death penalties for the Carr brothers with a scathing
criticism of the Kansas Supreme Court.
"The Kansas Supreme Court time and again invalidates death sentences because it
says the Federal Constitution requires it."
The opinion continued saying, "Turning a blind eye...would enable state courts
to blame the unpopular death-sentence reprieve of the most horrible criminals
upon the Federal Constitution when it is in fact their own doing."
Yet in not one of the death sentences in Kansas is the guilt or innocence of
the murderer in question. Death sentences are consistently thrown out on
technicalities during the appeals process. This frustrates the Sanderholms as
they wait for their daughters killer to be executed.
"I'm all for the death penalty. I believe it should be and I believe it is our
responsibility since it's our law to execute him and go on. Or change the law."
In late October the Sanderholm family traveled to Topeka for the Thurber's 1st
appeal in front of the Kansas supreme court. Jodi's Cindy knows the odds but is
hopeful she gets justice for her daughter.
"He didn't let Jodi appeal her life. He killed her and that was all," said
(source: KAKE news)
NEVADA----impending volunteer execution
Nevada judge to hear from inmate again about execution
A judge in Las Vegas who has been hearing a challenge of the state's untried
lethal injection plan was set Wednesday to ask an inmate one last time whether
he had changed his mind about becoming the 1st person to be executed in Nevada
in 11 years.
Scott Raymond Dozier, 46, a twice-convicted murderer, has given up all appeals
and repeatedly told Clark County District Court Judge Jennifer Togliatti that
he wants his death sentence carried out.
The judge scheduled a videoconference from the state prison in Ely, where
Dozier has been on death row since 2007 and his execution is set for Tuesday in
a newly constructed death chamber.
After killing people in Phoenix and Las Vegas, Dozier stood before the judge in
August and said he wanted to die and isn't concerned that it could be painful.
"If they tell me, 'Listen, there's a good chance it's going to be a real
miserable experience for those 2 hours before you actually expire,' I'm still
going to do it," Dozier said at the time. "I'm not going to waver on this."
But he is letting federal public defenders examine how the state decided on a
3-drug combination that has never been used for lethal injections in any state.
The plan, approved by a chief state medical officer who resigned last week,
uses the sedative diazepam, the powerful synthetic opioid fentanyl, and the
muscle paralytic cisatracurium. The procedure is expected to depress Dozier's
breathing to the point that he suffocates.
(source: Associated Press)
Nevada once used an automatic shooting machine to kill a prisoner
Convicted murderer Scott Dozier is scheduled to be executed Tuesday, the 1st
execution at Ely State Prison and Nevada's 1st execution in 11 years.
The state will also be using an untested lethal drug cocktail, which has
prompted controversy as some fear the execution will be inhumane.
But it will hardly be the state's 1st unique execution.
Before 1903, executions were the responsibility of the local sheriff where the
crime was committed.
The only woman to be executed in Nevada was Elizabeth Potts, who was hanged in
In the 114 years since the Nevada Department of Corrections has carried out
executions, 54 people, all men, have been put to death, according to NDOC
For many years, hanging was the primary execution method, but in 1911 the state
legislature changed the law to allow prisoners to choose between hanging and
death by firing squad.
Andriza Mircovich was the only inmate to ever choose to be executed by
shooting. But the Department of Corrections struggled to find employees willing
"There was some controversy over trying to get enough individuals, staff to
volunteer for that execution using firearms," said Glen Whorton, longtime NDOC
employee and eventual NDOC director.
"Ultimately, several employees and the warden resigned."
The new warden created a unique shooting machine that killed Mircovich
automatically, Whorton said.
The 1921 Nevada Legislature outlawed hanging and shooting, becoming the 1st
state to allow execution by lethal gas.
In 1924, Gee Jong was the 1st person in the United States to be executed by
32 prisoners were killed in a gas chamber over the next 50 years before safety
concerns prompted the state to switch to lethal injections.
"There were concerns about the seal and whether or not it was a tight
environment," Whorton said. "There's also concerns about evacuating the gas."
11 inmates have been executed by a lethal cocktail.
Over the years there have been several attempts to abolish capital punishment
in the Silver State.
Most recently, 2 Democratic lawmakers sponsored a bill to prohibit the death
penalty. That bill never advanced out of committee during the 2017 legislative
Phoenix man found guilty in death of girl locked in box
A Phoenix man was convicted of 1st-degree murder Wednesday in the 2011 death of
a 10-year-old girl who was locked in a storage box in sweltering summer heat.
After deliberating for a day, a Maricopa County Superior Court jury also found
John Michael Allen, 29, guilty of child abuse in the killing of Ame Deal.
Jurors now must determine whether the killing was especially cruel or heinous
before moving onto the sentencing phase, which could include the death penalty.
Allen's 28-year-old wife Sammantha Allen, a cousin of Deal's, was convicted of
murder in the girl's death in June. She now is on Arizona's death row.
Authorities said the couple forced Ame into the small, plastic box as
punishment for stealing ice pops. They then went to sleep and the girl was
found dead the next morning.
Defense attorney Robert Reinhardt had argued that John Allen, a father of four
young children, did not intend for the girl to die and that the other adults in
the home created the abusive environment.
Ame's death was the culmination of a shocking history of abuse at the hands of
relatives who were charged with caring for her.
Authorities said the girl was forced to eat dog feces, crush aluminum cans
barefoot, consume hot sauce and get in the storage box on other occasions. She
also was kicked in the face, beaten with a wooden paddle and forcibly dunked
after being thrown in a cold swimming pool, according to police investigators.
Adults at the home originally claimed Ame hid during a late-night game of
hide-and-seek and wasn't found until hours later.
3 other relatives are in prison serving sentences for abusing Ame.
David Deal, who is listed as the girl's father on her birth certificate, is
serving a 14-year sentence after pleading guilty to attempted child abuse.
Ame's legal guardian at the time of her death was her aunt, Cynthia Stoltzmann,
who is serving a 24-year prison sentence for a child abuse conviction. Ame's
grandmother, Judith Deal, is serving 10 years for child abuse.
Ame's mother left the family years earlier after suffering abuse from relatives
and moved to Kansas without her daughter.
(source: Associated Press)
Why haven't we abolished the death penalty and moved on?
In Stanley Kubrick's 1957 powerful antiwar film, "Paths of Glory," an injured
and virtually unconscious French soldier, chosen at random to be executed, is
slapped awake just as he is about to be shot. The movie was based on an actual
World War I incident, although I can't vouch for the firing-squad scene. I can
vouch, however, for this week's Supreme Court decision that will permit the
execution of a 67-year-old man who has suffered from strokes and cannot
remember his crime.
Of course, others can remember precisely what Vernon Madison did. Back in 1985,
he killed a cop when the officer responded to a domestic dispute. This was in
Mobile, Ala., and the state is now preparing to set a new execution date. If it
is carried out, Madison will die 32 years after he committed his crime. All he
knows, the court said in its opinion, is that "he will be put to death as
punishment for the murder he was found to have committed."
The death penalty has become one of those odd American anomalies, like the
right to casually buy semiautomatic weapons. The rest of the advanced world has
moved on and abolished capital punishment. As a nation, we now keep odious
company - with China, Saudi Arabia, Iran, among others. The latter 2 have
public executions which, if you believe that the death penalty is a deterrent,
makes perfect sense. Trouble is, capital punishment is not a deterrent. In the
first place, murder is often a spontaneous event, and where it is
dispassionately planned, it is done so by people who do not believe they will
be caught. Try telling a teenager not to drive fast. Those who do are oblivious
to the consequences.
In truth, I have little sympathy for Madison. He killed a cop. But surely he
did not plan the murder and, just as surely, awaiting execution for 3 decades
has to be cruel - maybe not cruel and unusual, but certainly cruel. In a way,
in fact, it's typical. A drumbeat of Supreme Court rulings and changing public
opinion have made the death penalty unusual in itself. 19 states have abolished
it. Others hardly ever use it. In the Northeast, it is all but gone. In the
South, particularly Texas and Florida, it remains robust. In time, that, too,
It has gotten harder and harder to legally kill a person. Executions have
become complicated affairs, sometimes hideously botched. Moreover, we have lost
faith in the infallibility of the criminal-justice system. DNA has injected
doubt. Since 1973, more than 155 people have been released from death row,
according to the Death Penalty Information Center. The law of averages and
common sense tell us that, along the way, innocent people have been put to
It has become increasingly difficult for states or the federal government to
apply the death penalty. But why even try? Nothing is accomplished, and while
the chances of making a mistake are now diminished - DNA can prove guilt as
well as innocence - life in prison is a worthy substitute. It shows that
society appreciates what the loss of innocent life means - both to the victim
and, more pertinently maybe, to the survivors. The grieving are surely owed our
empathy, but capital punishment can neither right a wrong nor prevent another
(source: Opinion; Richard Cohen, Washington Post)
SCOTUS Opinion May Offer Insight Into Future of Death Penalty----Analysis: Per
curiam ruling earns comment from execution-skeptical justices
A unanimous decision issued Monday by the Supreme Court carried with it several
concurring opinions from the Court's liberal justices, suggesting an ongoing
interest from that wing in revisiting the constitutionality of the death
The case, Dunn v. Madison, concerns the intellectual competence of Vernon
Madison, convicted in 1998 of the murder of police officer Julius Schulte.
Madison had suffered several strokes in the time between his conviction and
scheduled execution, and could not recall the details of his crimes, though did
admit to understanding why he was being executed.
Madison petitioned for a stay of execution on the grounds that, due to his
strokes, he lacked "the mental capacity to rationally understand that he is
being executed as a punishment for a crime," a standard set up when the Court
struck down the death penalty for the mentally ill in Ford v. Wainwright. The
eleventh circuit court of appeals agreed with Madison.
In a per curiam (issued as a unanimous whole) decision, the Supreme Court
reversed the eleventh circuit, narrowly ruling that under existing statutory
rules - specifically, the Antiterrorism and Effective Death Penalty Act (AEDPA)
of 1996, which set many constraints on death penalty litigation - the case as
presented did not merit full consideration.
2 concurring opinions from the Court's liberal justices signaled skepticism
about the underlying issues of the death penalty for Madison and the death
penalty in itself.
Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer and Sonia
Sotomayor, noted in a one-paragraph concurrence that while the AEDPA's
constraints, "preclude consideration of the question," Madison's appeal pointed
at a deeper concern.
"The issue whether a State may administer the death penalty to a person whose
disability leaves him without memory of his commission of a capital offense is
a substantial question not yet addressed by the Court. Appropriately presented,
the issue would warrant full airing," she wrote.
Breyer, in a separate, solo concurrence, reinforced his past concerns about
"one of the basic problems with the administration of the death penalty itself
... the unconscionably long periods of time that prisoners often spend on death
row awaiting execution." He pointed to the extended periods of time - decades -
that capital convicts spend on death row, suggesting that it would become an
increasing problem as death penalty cases continue to drag.
"Rather than develop a constitutional jurisprudence that focuses upon the
special circumstances of the aged, however, I believe it would be wiser to
reconsider the root cause of the problem - the constitutionality of the death
penalty itself," Breyer concluded.
This opinion dovetailed with - and relied upon references to - Breyer's dissent
in 2015's Glossip v. Gross. That case concerned the constitutionality of a
certain kind of lethal injection. However, in a lengthy dissenting opinion
joined by Ginsburg, Breyer called for "full briefing on a more basic question:
whether the death penalty violates the Constitution."
Dunn further contributes to the sense that some on the Court, including at
least Breyer and Ginsburg, may be interested in revisiting the death penalty's
The Court's 4 conservative justices - Chief Justice John Roberts and Justices
Clarence Thomas, Samuel Alito, and Neil Gorsuch - are generally agreed to be
fairly safe pro-death penalty votes. Breyer and Ginsburg, meanwhile, are among
the group of justices who seem suspicious of the death penalty in and of
"From my reading of what gets said, and more importantly what does not get
said, and who's not saying it, the movement to abolish the death penalty in all
circumstances probably has at most 3 votes on the Supreme Court," said Bill
Otis, a former federal prosecutor, professor at Georgetown law school, and
outspoken proponent of the death penalty.
Otis suggested that Sotomayor's concurrence in Dunn, as well as her separate
dissent in Glossip and several comments at law schools, all suggested that she
had moved towards Ginsburg and Breyer's skepticism of the death penalty.
"It seems to me that Justice Sotomayor, although she has never said so
directly, is very much leaning in the direction of at some point taking the
view that the death penalty is constitutionally impermissible in all
circumstances," Otis said.
That leaves 2 justices: the liberal-leaning Justice Elena Kagan and Justice
Anthony Kennedy, who is generally perceived as the Court's swing vote.
Kagan, an Obama appointee, was conspicuously absent from either concurrence in
Dunn. While she did join Sotomayor's narrow dissent in Glossip, she also did
not join Breyer's more wide-reaching dissent.
During her confirmation hearing, Kagan called the death penalty's
constitutionality "established law," further insisting that it was "settled
precedent going forward" that should generally not be disrupted. However, that
does not guarantee that she has not "evolved" on the issue, as some of her
peers have historically.
Kennedy's vote on abolition also remains up in the air. Otis pointed to his
past rulings in cases like Roeper v. Simmons, which struck down the death
penalty for minors, but also noted that Kennedy joined the Court's majority in
Glossip, suggesting he may have grown more execution sympathetic.
Evan Mandery, chairperson of the department of criminal justice at John Jay
College and a death penalty expert, cautioned against reading too much into
Dunn, noting that Breyer's dissent simply reiterated many of his concerns in
Glossip and that the case mostly concerned a narrow issue pertaining to AEDPA.
"I don't really think it's like a game changer in any way in terms of reading
the tea leaves," he said.
"I think what they're saying is, they think it's a legal issue that merits full
consideration. I'm sure it wouldn't be first on everybody's plate of things to
take on about the death penalty," he said.
Questions of whether or not the death penalty violates the Eighth Amendment,
which prohibits "cruel and unusual punishment," have been before SCOTUS before.
In 1972, the Court issued a nationwide moratorium on capital punishment in
Furman v. Georgia, a moratorium that was ended 4 years later in Gregg v.
Georgia after reforms from state legislatures.
Since then, many have tried to challenge the death penalty's constitutionality.
Most recently, former acting Solicitor General and celebrity litigator Neal
Katyal filed a petition in Hidalgo v. Arizona to challenge Arizona's death
penalty, as well as asking the Court to consider, "whether the death penalty in
and of itself violates the Eighth Amendment, in light of contemporary standards
The Court has not yet agreed to hear Hidalgo. If it does, it may pose a serious
challenge to capital regimes across the country.
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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