2017-04-29 13:13:59 UTC
Arkansas executions: death chamber evidence sought amid torture
fears----Unprecedented burst of executions re-inflamed opposition to death
penalty, with some reporting disturbing signs of distress as men were being
Lawyers for the 4 men executed by Arkansas in the past week were set on Friday
to ask a federal judge to force the state to preserve evidence from its death
chamber. The request, the 1st step towards a thorough investigation, came amid
fears that the prisoners might have been subjected to excruciating pain,
tantamount to torture.
Arkansas' unprecedented burst of executions - it tried to carry out 8 in 11
days - is over. But it has re-inflamed opposition to the death penalty in the
US and sparked a major legal battle, involving drug companies objecting to the
use of their products to kill people, that could have long-term consequences.
Eyewitnesses to 2 of the 4 executions in Arkansas reported disturbing signs of
distress on the part of the condemned men as they were being killed on the
gurney. On Thursday night Kenneth Williams' body shook for up to 20 seconds,
with reports of him coughing, convulsing, lurching and jerking in rapid
succession. Even when the microphone had been turned off, he could be heard
through the viewing glass, moaning and gasping.
3 days before that, Marcel Williams was seen to arch his back countless times
and breathe heavily even after a consciousness check was carried out to make
sure he was insensate.
Shawn Nolan, a lawyer for Kenneth Williams, said a joint filing would be lodged
with a federal court on Friday to oblige the state department of corrections to
preserve evidence including materials used in the executions and records of
drug levels, timings and so on. He described the death of his client as
Speaking to the Guardian the morning after the execution, Nolan said: "Our
client was effectively tortured last night and that's not acceptable. The state
did this so haphazardly and it went horrifically wrong."
Asa Hutchinson, the Republican governor who was the architect of what has been
called a "conveyor belt of death", denied that any mishap had occurred. His
spokesman described the Kenneth Williams execution as "flawless" and said the
prisoner's convulsions had been the result of an "involuntary muscular
But the state's attempts to put the events of the past 10 days behind it are
unlikely to be successful. Campaigners are seizing on the sudden burst of
executions in Arkansas as a potentially crucial moment in the fight over the
At the heart of that fight are the drugs that are being used by death penalty
states across the US. Maya Foa, director of the human rights group Reprieve,
which has led the charge against pharmaceutical drugs being used in death
chambers, said drug companies had displayed new resolve in standing up to
"Drug companies have shown that they are absolutely prepared to do what it
takes to enforce their contracts and ensure that their medicines are not
misused - they will stand up to it," she said.
2 major drug companies, Fresenius Kabi USA and West-Ward Pharmaceuticals Corp,
as well as one of the largest medical supply companies in the US, McKesson,
sued the state over its intention to kill people using chemicals designed to
save lives. McKesson went furthest, effectively charging the Arkansas
department of corrections with lying in order to obtain a batch of one of the
drugs used in its triple lethal injection cocktail.
4 of the 8 condemned inmates in Arkansas were spared execution - for now -
through court-directed stays. They still remain on death row and could have new
death warrants issued at any time.
However, Arkansas will struggle to proceed with further killings because its
batch of midazolam, the sedative used in the 1st of its 3 lethal injections,
runs out this weekend and drug companies refuse to provide new supplies.
It is thought the state still has enough of the 2nd drug, vecuronium bromide,
to kill up to 13 prisoners by its expiry date next March, and a similar
capacity of potassium chloride expiring in August 2018.
Focus now switches to the 5 death penalty states that have scheduled 15
executions through the remainder of the year: Alabama, Georgia, Missouri, Ohio
and Texas. The 1st of those planned executions, of convicted murderer Ronald
Phillips, is set to take place on 10 May in Ohio.
The department of corrections in Ohio does have sufficient quantities of
midazolam, rocuronium bromide and potassium chloride to carry out multiple
executions by triple lethal injection. But condemned prisoners have challenged
the state's death protocol, with a particular emphasis on the 1st drug,
midazolam, that has been associated with several botched killings over the past
The case is currently before the full bench of the federal sixth circuit court
of appeals. Unless its judges rule for the state, Ohio's executions will remain
on hold. Lawyers representing the death row inmates are certain to seize on
events in Arkansas as further evidence of the problems of midazolam, which as a
sedative and not an anaesthetic, is an unusual agent for rendering individuals
Allen Bohnert, a federal public defender in Ohio who represents Phillips, said
his legal team was looking forward "to presenting compelling evidence to the
full sixth circuit panel regarding midazolam's unsuitability as an execution
Question marks also remain over the secrecy now universally applied by death
penalty states over the source of their drugs. In Arkansas, media witnesses
were not allowed to observe the placing of IV lines in the prisoners' veins, as
the death chamber's curtain remained closed.
The state also failed to provide public information on the precise timing of
the 3 lethal injections. As a result, it was impossible to tell whether Kenneth
Williams was fully unconscious at a time when the paralytic second drug and the
final potassium chloride were administered. Were he still remotely conscious at
the time of the potassium injection, he would have felt a sensation that has
been described as similar to a flamethrower shooting fire down his veins.
"It is very disturbing to read witness accounts that Mr Williams was breathing
and moving at the time of the consciousness check, because subsequent
administration of the paralytic would hide any conscious suffering he
experienced," said Megan McCracken of the Death Penalty Clinic at UC Berkeley
school of law..
(source: The Guardian)
Arkansas gov rejects call for probe after inmate convulses during execution
The 4th death row inmate executed in Arkansas in 8 days lurched and convulsed
before he died, witnesses said, prompting critics and the man's legal team to
demand an investigation Friday, which the state's governor rejected.
Arkansas Gov. Asa Hutchinson responded that the execution went according to
protocol and there was no reason to conduct anything more than a "routine
review" that takes place after an execution.
"It was obvious to me there was not any indication of pain," Hutchinson said at
a news conference Friday. "This 10 seconds of movements on his part was
described as coughing without noise."
The state had sought to carry out as many lethal injections as possible before
1 of its drugs expires Sunday. The governor did not witness the execution.
About 3 minutes into the execution Thursday night, Kenneth Williams' body
jerked 15 times in quick succession -- lurching violently against the leather
restraint across his chest -- then the rate slowed for a final 5 movements,
according to an Associated Press reporter who witnessed it.
Williams' attorneys released a statement calling witness accounts "horrifying"
and demanding an investigation into what they called the "problematic
Hutchinson said that coughing is a possible side effect according to the drug's
"People react to drugs in different ways sometimes but that seems to be
consistent with the indications on the drug inserts," he said.
J.R. Davis, a spokesman for Hutchinson called the movements "an involuntary
muscular reaction" that he said was a widely known effect of the surgical
sedative midazolam, the 2st of 3 drugs administered.
"Midazolam's well-documented risks and role in numerous botched executions
should have given Governor Asa Hutchinson pause. Instead, he ignored the
dangers and undermined our state's moral standing - all to beat the expiration
date on a failed drug," Rita Sklar, executive director of the ACLU of Arkansas,
Williams was sentenced to death for murdering a former deputy warden, Cecil
Boren, after he escaped from prison in 1999. At the time of his escape in a
500-gallon barrel of hog slop, Williams was less than 3 weeks into a life
sentence for killing a college cheerleader.
Arkansas had scheduled 8 executions over an 11-day period. That would have been
the most in such a short time since the U.S. Supreme Court reinstated the death
penalty in 1976, but courts issued stays for 4 of the inmates. The 4 lethal
injections that were carried out included Monday's first double execution in
the United States since 2000.
Williams read a prepared final statement before the execution began,
apologizing to the families he "senselessly wronged and deprived of their loved
ones." He also spoke in tongues, the unintelligible but language-like speech
used in some religions. But his prayer faded off as the midazolam took effect.
He said, "The words that I speak will forever be, will forever ..." before he
The inmate breathed heavily through his nose until just after three minutes
into his execution, when his chest leaped forward in a series of what seemed
like involuntary movements. His right hand never clenched and his face remained
what one media witness called "serene."
After the jerking, Williams breathed through his mouth and moaned or groaned
once -- during a consciousness check -- until falling still 7 minutes into the
A Friday morning tweet from the account of a Republican state Sen. Trent
Garner, who witnessed the execution, said Williams did not "seem in pain. ...
It was not cruel, unusual, botched or torture."
"Any amount of movement he might have had was far less than any of his
victims," said Jodie Efird, one of Boren's daughters, who witnessed the
State officials have called Arkansas' string of executions a success, declaring
justice served and "closure" for victims' families. Some concerns had been
raised about Monday's execution of Jack Jones, whose mouth moved after
attorneys said he should have been unconscious, though a federal judge
determined it did not appear to be "torturous and inhumane."
All of the Arkansas inmates -- including Williams -- have died within 20
minutes of their executions beginning, a contrast from troubled
midazolam-related executions in other states that took anywhere from 43 minutes
to 2 hours. Though witnesses to those lengthier executions also described
hearing inmates breathe heavily, snore or snort or seeing them struggle against
"The long path of justice ended tonight and Arkansans can reflect on the last 2
weeks with confidence that our system of laws in this state has worked,"
Hutchinson said in a statement issued after Williams' execution.
Dale Baich, an assistant federal public defender who witnessed a flawed 2014
Arizona execution that took 2 hours, said in an email early Friday that after
reading media reports, "It appears from witness accounts that Mr. Williams was
not fully sedated when the paralytic was administered.
"At a minimum, this was a deviation from the protocol."
Williams' lawyers had said he had sickle cell trait, lupus and brain damage,
and argued the combined maladies could subject him to an exceptionally painful
execution in violation of the U.S. Constitution. They argued Arkansas' "1 size
fits all" execution protocol could have left him in pain after a paralytic
agent rendered him unable to move. State and federal courts rejected the
Williams was sentenced to death for killing Boren after escaping from the
Cummins Unit prison in a barrel holding a mishmash of kitchen scraps. He left
the prison -- where the execution chamber is located in another part of the
facility -- less than three weeks into a life prison term for killing
University of Arkansas at Pine Bluff cheerleader Dominique Hurd in 1998. At the
conclusion of that trial, he had taunted the young woman's family by turning to
them after the sentence was announced and saying "You thought I was going to
die, didn't you?"
After jumping from the barrel, he sneaked along a tree line until reaching
Boren's house. He killed Boren, stole guns and Boren's truck and then drove
away to Missouri. There, he crashed into a water-delivery truck, killing the
driver. While in prison, he confessed to killing another person in 1998.
At the time of Boren's death, investigators said it did not appear Boren was
targeted because of his former employment by the Arkansas Department of
(source: Fox News)
Arkansas executions: What's next after the drug supply expires?
With Arkansas' supply of lethal injection drugs expiring soon, the future of
capital punishment in the state is unclear.
The state had planned to execute 8 death row inmates in a span of 11 days in
April before its supply of sedatives used in the process expired. The clock was
In the midst of legal battles with drug suppliers, inmates fighting to avoid
executions and courts issuing temporary stays, Arkansas carried out only 4 of
the 8 scheduled executions.
According to J.R. Davis, spokesman for Gov. Asa Hutchinson, there will not be
any more executions this month.
Davis said the state will work on procuring the drug again and will reschedule
the executions when the stays and court cases are resolved.
Securing new doses of the drugs will be a challenge for Arkansas, but the state
could also change the method used to execute inmates or halt them all at once.
Find other drugs?
Death sentences are still being handed down, but many states are not scheduling
executions because authorities don't have the drugs needed for lethal
And pharmaceutical companies are now mounting legal challenges against the use
of their products in executions, so Arkansas could fall into a years-long,
expensive battle with those companies.
Supreme Court rules in favor of lethal injection drug
1 manufacturer, West-Ward Pharmaceuticals, filed a brief in support of the
eight inmates the state planned to execute in April, saying it tries to ensure
its midazolam isn't used in executions.
If states can't get supplies of the 3 drugs needed for the lethal injection
cocktail currently used, authorities may have to switch to a 1-drug lethal
injection and use drugs such as sodium thiopental and pentobarbital.
But not without running into some issues.
Manufacturers and European countries started withholding sodium thiopental and
pentobarbital this decade, trying to prevent the use of them in executions. The
US Food and Drug Administration also hasn't approved the use of sodium
thiopental in the United States. The FDA recently seized a shipment of 1,000
vials that the Texas Department of Criminal Justice had purchased for its
The Arkansas governor could also issue a moratorium on all executions.
Governors in other states have taken that step in order to reconsider their
state's death penalty or ask for a comprehensive review of the process.
One of them is Pennsylvania Gov. Tom Wolf, who stopped all executions in 2015.
The governor said the review was necessary and that his decision was not a way
to express sympathy to the inmates.
"This decision is based on a flawed system that has been proven to be an
endless cycle of court proceedings as well as ineffective, unjust and
expensive," Wolf said in a statement, The Philadelphia Tribune reported.
Currently, Colorado, Oregon and Washington also have moratoriums in place
against the death penalty.
While the 31 states with death penalty laws use lethal injection drugs as the
main method for executions, some of them have options.
Utah to allow firing squads for executions
In 18 states, authorities have at least 1 alternative, such as the gas chamber,
hanging or a firing squad.
In Alabama, Florida and Virginia, inmates can choose the electric chair.
Only Utah and Oklahoma allow inmates to choose a firing squad.
In 2010, Ronnie Lee Gardner was executed by a firing squad in Utah. He was the
3rd inmate in that state to be executed by that method since 1977.
It's the last option for inmates in Oklahoma if all the other methods are
either unavailable or ruled unconstitutional by a judge.
Utah inmate asks to die by firing squad
But in Arkansas there's only 1 other option. The state may use electrocution if
the lethal injection is "invalidated by a final and unappealable court order,"
a state code says.
If authorities want to use another method, it would require lawmakers to change
current state law or pass a new law.
State legislators in Mississippi passed a bill in April authorizing a firing
squad, electrocution and the gas chamber as other means of execution if lethal
injection was not available. The law takes effect next year.
Document filed for death penalty
An Oklahoma prosecutor has filed formal notice that the state will seek the
death penalty for a man charged in the killing of a deputy sheriff.
District Attorney Laura Austin Thomas filed the bill of particulars Thursday
stating 45-year-old Nathan Aaron LeForce should be put to death if he's
convicted of a 1st-degree murder charge in the shooting death of Logan County
Deputy David Wade.
LeForce remains jailed and court documents don't list an attorney to speak for
him. Prosecutors say LeForce fatally shot Wade as the deputy served an eviction
notice in Mulhall, about 50 miles north of Oklahoma City.
Howard Barnett: Death penalty moratorium is the right choice
For over a year, I have had the honor of being 1 of 11 members of an
independent, bipartisan commission comprised of a diverse group of Oklahomans
and tasked with investigating an issue of the upmost importance to the state of
Oklahoma. Known as the Oklahoma Death Penalty Review Commission, we spent over
a year reviewing the death penalty system in our state - from arrest to
As commission members, we discussed and debated and, in the end, we issued 46
detailed consensus recommendations that affect a range of issues, including
protecting the innocent from execution, the role of defense counsel and
prosecution, and even the execution process itself. Given the breadth of
concerns we uncovered, the commission unanimously recommends extending the
current moratorium on executions in Oklahoma until significant reforms are
Our decision was reached after much deliberation and many interviews with
stakeholders working in the system and those who are affected by it, including
the family members of both victims and exonerees, prosecutors, and public
defenders. We reviewed scholarly articles, commissioned independent studies,
and held 10 lengthy meetings to deliberate our findings. The investigation
provided an eye-opening understanding of the death penalty process in Oklahoma.
We all concluded that there must be a concerted effort to implement meaningful
reforms to our state's system. We must be able to guarantee fairness, justice,
and that no innocent person is put to death.
Oklahomans support our state's right to capital punishment, as was evident by
the passage of State Question 776 in November. However, we believe we have a
duty to let our fellow citizens know about the extensive investigation we have
done and all that we have learned. We must help our state guarantee that true
justice is served in cases where the defendant is charged with a capital crime.
To hastily remove the current moratorium, which was put in place because of
what a grand jury found was a seriously flawed process in the state's execution
process, would be counter-productive. We now know far more about the systemic
problems that pervade our system long before the execution process unfolds.
Oklahoma should leave the current moratorium in place and consider the detailed
reforms recommended in our report.
No matter how they voted on SQ 776, I encourage all Oklahomans to read the
commission's report and ask members of the Oklahoma Legislature, executive
branch, judiciary and bar associations to work together to address the flaws in
our state's death penalty process. We hope this report promotes a conversation
surrounding that process. Our state's leaders owe it to Oklahomans to review
the commission's recommendations and enact serious reforms to guarantee
innocence protection, procedural fairness, and justice for all. Until then, the
current moratorium should remain in place.
(source: Howard Barnett is a member of the Oklahoma Death Penalty Review
Commission and president of Oklahoma State University-Tulsa. He was chief of
staff to Gov. Frank Keating 1999-2003----Tulsa World)
Hickenlooper should commute Nathan Dunlap's sentence and lead on death penalty
If Colorado's courts won't allow Nathan Dunlap's legal team to lobby Gov. John
Hickenlooper for the life of their client, we'll do it for them.
Hickenlooper - as we've said before - should commute Dunlap's death sentence to
life in prison without the possibility of parole. As Hickenlooper noted when he
granted Dunlap a temporary reprieve from his August 2013 execution date, the
death penalty "has not been fairly or equitably imposed." We praised the
governor's political courage to spare Dunlap's life, despite polling that
showed Colorado voters supported the killer's execution and the continued use
of the death penalty.
The governor also promised at the time, however, to lead a statewide
conversation about the death penalty.
But that was almost 4 years ago.
Dunlap and the families of his victims have sat in limbo. And that conversation
has not formally taken place.
Now Hickenlooper has about 18 months to decide the fate of the man convicted in
1993 of killing 4 Chuck E. Cheese's employees, and to fulfill his promise of
bringing this criminal justice question to the forefront. Unfortunately, it's
unlikely now to be Hickenlooper, a man who legitimately seemed on the fence
about this issue, who frames this public policy debate, but George Brauchler, a
declared candidate for governor in 2018 and an unabashed fan of the death
penalty. Brauchler is district attorney for the 18th Judicial District, which
includes Arapahoe County, where the crimes of all 3 Colorado men on death row
were committed and prosecuted. He most recently tried the case against
convicted mass-murderer James Holmes, and his team of attorneys unsuccessfully
sought the death penalty.
This month, Dunlap's attorneys requested that a U.S. District Court judge
authorize the defense team spend $750,000 to lobby Hickenlooper to commute
Dunlap's sentence to life in prison without the possibility of parole before
Hickenlooper leaves office and his executive order can be undone.
U.S. District Court Senior Judge John Kane's assessment of the possibility of
Hickenlooper taking action on this issue struck us as unprofessional and
unwise, but not altogether untrue.
"You poke the Pillsbury Doughboy in the belly, there's a giggle and that's the
end of it," Kane was quoted saying by The Denver Post's Kirk Mitchell. "All of
this is because we have a present governor who is not making a decision. ...
I'm not about to endorse the present situation. ...These are not legal issues."
Occasionally, like on the governor's campaign trail in 2014, or during court
proceedings, Dunlap's precarious state between death by lethal injection and
life in prison has come up. Hickenlooper's best chance to address the death
penalty came in 2013 and 2014, when Democrats held both chambers of the
Colorado General Assembly, but bills to address the issue have never gained
traction, or outward support from Hickenlooper, including a bill this year that
was voted down in the Republican-controlled Senate and hardly rose to the level
of public discourse.
Kane is right in that Hickenlooper has failed to lead on the issue of the death
penalty. That's a shame, because Colorado's death penalty needs to be repealed.
We wish the governor had made this issue more of a priority and championed the
question during his tenure. He still could during the 2018 legislative session.
But that shortfall in leadership doesn't preclude the governor from doing the
right thing and sparring Dunlap's life from becoming the issue voters are
deciding at the ballot box in 2018.
(source: Editorial, Denver Post)
Firing squads to be used in upcoming Utah executions
As Arkansas rushes to execute several death row inmates due to execution drugs
expiring soon, an even more macabre immorality is developing in Utah: 3 death
row inmates have all elected to be killed by firing squad, a method that's
still on the books as a sort of next resort if execution drugs are unable to be
obtained in the appropriate amount of time. As manufacturers of propofol and
other execution drugs refuse to sell to states as a stand against the death
penalty, death by lethal injection becomes more difficult to pull off.
Utah's execution methods are actually quite complicated: in 2004, death by
firing squad was overturned, as the Utah legislature cited the amount of
attention drawn as creating difficulty for the affected families. Then, in
2015, this was partially changed. Now, if execution drugs are in short supply,
firing squads can be used as a backup method. Furthermore, those sentenced to
death before 2004 are grandfathered and can decide their execution method, if
they so choose, according to the options available at the time of sentencing.
Taberon Dave Honie, Troy Michael Kell, and Ralph Leroy Menzies are all current
death row inmates who have elected to die by firing squad. Although execution
dates have not been set, many of them have been imprisoned for several decades.
Convicted of heinous murders and rapes, these 3 men seem to have inflicted
horrible pain on others. Still, why should we kill at all? Our justice system
has overwhelming flaws, from lack of proper indigent defense to tainted appeals
processes. It's crazy for us to openly acknowledge the error in the system and
still put people to death. We need to stop pretending this is what dispensing
justice looks like.
MuckRock recently obtained the Utah Department of Corrections' execution
manual, detailing protocols currently in place. On the issue of government
transparency, it's unbelievable that such a document wasn't public in the first
place, but had to be obtained via FOIA request. Such a request was initially
denied in 2015, but recently released.
The details outlined are grotesque, but the unfortunate standard in many
states: 2 rounds must be loaded into each weapon, with 1 weapon shooting
blanks. A target should be placed over the heart of the one being executed.
There are countdowns and waiting periods and the last words are supposed to be
recorded via audio, then destroyed within 24 hours of the execution. One can't
help but think that if information like this were made more public, fewer
people would be able to stomach the horror of the death penalty.
Some believe firing squads are more humane as lethal injection has been
scrutinized due to the high prevalence of botched executions. Others argue that
firing squads disallow us to be detached from the real matter at hand: the
taking of a human life. For this reason, some death penalty abolitionists see
firing squads as the easiest way of changing public opinion. The gruesome
nature of firing squads reminds us that execution isn't some sanitized,
near-medical procedure done by a phlebotomist in a dimmed room, but rather the
killing of a human being.
Many scholars and activists think the recent controversy in Arkansas is
bringing legal issues with the death penalty to light, exposing procedural
problems and leaving pits in the bottoms of people's stomachs as they begin to
realize what the death penalty looks like up close. Hopefully, as Utah's firing
squads are examined further, people will begin to realize that our repugnant
idea of justice needs to be reformed.
Meet the Man Leading the Push for More Executions in the U.S.----Kent
Scheidegger has made his name as one of the country's leading opponents of
criminal justice reform.
It's been a decade since California's last execution; the state now has 749
people on death row. Many of them have had that designation for decades; their
execution seems increasingly unlikely.
In November, Californians voted in favor of Proposition 66, which was billed as
a "fix it, don't end it" reform of the death penalty. Essentially, Prop 66
"would require the judge who originally heard a case to hear initial petitions
challenging a death penalty conviction, instead of the petitions going to
California Supreme Court. It also would limit the appeals process to within 5
years of a death sentence," per the Los Angeles Times.
The question now becomes 1 of implementation: What politician or political
action group would be motivated to actually support state-sponsored executions
when state after state is ending the death penalty?
That's where Kent Scheidegger comes in. Scheidegger, the most famous man most
laypeople have never heard of, has been fighting to execute people for 30
years. He is the legal director of the Criminal Justice Legal Foundation, a
right-wing think tank opposing criminal justice reform. He's also the author
not just of California's Prop 66 legislation, but also of most anti-criminal
justice reform rhetoric heard at the state and national level.
The United States remains quite divided when it comes to the death penalty.
Most recently, the rush by Arkansas lawmakers to execute 8 people in 11 days
has served as a reminder of capital punishment's perseverance within the
criminal justice system despite reform advocates' efforts to highlight the role
mental illness, extreme childhood trauma, and poor lawyering can play in crime
and sentencing. Yet, on the other hand, the death penalty has seen a steady
decline in support around the country; a 2016 Gallup poll recorded the lowest
support for the death penalty since 1972. Further, 2016 had the fewest
executions (20) since the American death penalty was reinstated in 1978. The
death penalty, it seems, remains as polarizing an issue as ever.
The role of the Criminal Justice Legal Foundation, then, is to try and swing
the pendulum back toward pro-punishment. Founded in 1982, the CJLF bills itself
on its website as "dispassionate, low-profile" in its quest to normalize
executions. It's also fairly successful, with a half-million-dollar budget
funded entirely by private donations. The group regularly intervenes in pretty
much every criminal justice case in the country by filing amicus (friend of the
court) briefs, and weighing in on legal issues. Scheidegger, who had previously
worked in California state government before becoming CJLF's legal director,
has become the talking head known for his lively, almost-bubbly defense of the
Scheidegger has written nearly 200 Supreme Court amicus briefs supporting
harsher sentences and the death penalty. His briefs provide ammunition for the
more conservative justices who are looking for ways to justify their decisions.
He regularly testifies before the California legislature against criminal
justice reform issues. He is also the mouthpiece for all pro-capital
punishment; he seems to always have a quotable quip handy for publication. Last
month, for example, he was quoted in the Times arguing that the "anti-death
penalty crowd" has created the drug shortages by making it hard for states to
He also penned a recent blog post claiming the expiration date for Arkansas'
execution drug was just a suggestion, not something to be taken seriously. And,
despite the nearly 150 people exonerated from death rows around the country, he
maintains in amicus briefs that "nearly all death-row inmates are clearly
guilty." He's also publicly called brain research showing the differences in
decision-making between juveniles and adults - the very findings that have
informed court decisions across the country to eliminate life without parole
and the death penalty for young people -"a bunch of hooey."
But nowhere has Scheidegger been more vehement than in his defense of capital
punishment. Consider this, from an amicus brief CJLF submitted to the Supreme
Court in the 2015 case challenging Oklahoma's lethal injection protocol,
Glossip v. Gross: "The Eighth Amendment does not allow torturous methods of
execution but also does not require completely painless ones."
In the case of Bobby Moore, a man who was sentenced to death under Texas'
statute evaluating intellectual disability, Scheidegger -lacking any scientific
evidence - wrote an amicus brief calling the American Psychiatric
Association???s definition of intellectual disability "social and policy
documents" and "not science." (In the same brief, he also called developmental
disabilities a "social construct."
Among Scheidegger's more unusual positions: his opposition to the
evidence-based conclusion that race plays a disproportionate role in death
sentences. "The difference between the make-up of death row and the make-up of
the general population is attributable to the difference in offending rates,
not bias in the system," he told a local Florida radio station, referring to
Florida's historical racial imbalance on death row. When the Supreme Court
ruled in favor of the defendant in the case of Duane Buck, a death penalty case
that relied on racial bias, Scheidegger took to his blog to protest the
Over the past 5 years, Scheidegger has used his gift with the pen to sue the
state of California to reinstate executions. In a 2012 case, Scheidegger filed
his own lawsuit in California state court on behalf of a brother of someone
killed, arguing that the victim had a right to see the defendant executed. (He
Within California, his rhetoric is incredibly influential in the "death belt" -
that's Kern, Orange, and San Bernardino counties - places where the death
sentences are regularly assigned more than in any other southern state. While
politicians who are less likely to be as un-PC as Scheidegger, who shows no
qualms about using the word "retarded" to describe intellectually disabled
people on death row, his influence clearly provides them support for their
ability to make California the current death sentence leader in the U.S.
(Scheidegger predicts that if California resumes executions, there will be "1
or 2 a month.")
(source: Pacific Standard Magazine)
Can the Death Penalty Ever Be Implemented Justly?----A dialogue on the
constitutionality - and justice - of executions.
Starting in February, Slate began a series of monthly dialogues between 2 of
the nation's most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These
conversations will be moderated by Joel Cohen, author of the book Blindfolds
Off: Judges on How They Decide. The subject of their last conversation was how
to weigh the law and common sense on the bench. This month's conversation is
about the death penalty.
Joel Cohen: The death penalty is in the news again: Arkansas is awash in
litigation over planning to execute 8 inmates in a 10-day period - 4 having
already been executed within 8 days. The principal obstacle, of course, is the
controversy over midazolam, the sedative component of a drug cocktail that is
supposed to put the subject into a state of unconscious painlessness at the
time of death. Midazolam's efficacy has a spotty record at best.
But my question is not about those cases or executions. It is more specific: In
his first speech to Congress, President Trump, who has previously advocated the
death penalty in another context, continued to refer to the danger of "radical
Islamic terrorism." And the prospect of terrorism, Islamic or not, remains a
looming, perhaps existential, threat to America. So assume this: A terrorist is
convicted of blowing up a university building killing 100 people, injuring many
more. He is unrepentant. There are no mitigating factors nor any question of
his mental competency. If anyone deserves the death penalty, it is he. But
should the government be allowed to carry out his death sentence?
Judge Richard A. Posner: I don't see any argument against the death penalty in
your hypothetical, which of course echoes the Timothy McVeigh case, in which
168 people were killed. He was executed, and I'm not aware of any backlash. The
execution of mass murderers seems to me unobjectionable.
Judge Jed S. Rakoff: No one sheds a tear for McVeigh, but that misses the
legal, and moral, issue. After decades of trying, the legislatures and courts
have yet to devise procedures permitting the execution of people like McVeigh
while preventing the execution of wrongly convicted innocents. Thanks to
organizations like the Innocence Project, DNA testing has now scientifically
established the factual innocence of dozens of people that juries found guilty,
beyond a reasonable doubt, of crimes so awful that judges imposed death
sentences - only to discover, often years later, that terrible mistakes had
been made. The fault is not with the statutes but with our fact-finding
methods, which are far from perfect and operate particularly poorly when the
crime is so horrific as to cry out for vengeance. So the reason for outlawing
the death penalty in all cases, including McVeigh's, has nothing to do with
McVeigh. It's about protecting against the virtual certainty that such laws
will lead us to execute a great many innocent people who otherwise would be
Posner: I'm not sure that "a great many innocent people" is correct. One would
like to know the percentage of innocent people (or guilty but not responsible,
because of mental illness, or even just believed possibly innocent) who were
executed in the United States in the past 10 years. As you note, the most
authoritative estimate of innocent defendants executed is 4 %. If correct, 96 %
are guilty. Whether they "deserve" death in some philosophical sense, I imagine
that if no one, however clearly guilty, was executed for murder (especially
multiple or mass murder), there would be more murders - especially if life
imprisonment were also considered too harsh a punishment. I would particularly
like to see statistics on the percentage of multiple or mass murderer
defendants who were executed and later found innocent. I suspect - I'm guessing
- that it is less than 4 %.
Rakoff: Over the past 20 years, there have been no fewer than 115 people on
death row who have been fully exonerated, not just because they were "believed
possibly innocent," but because the courts determined they were actually
innocent. But these were the lucky ones; since they were still alive, groups
like the Innocence Project took up their causes. Conversely, no one can say how
many defendants who were executed were in fact innocent, because there is not
the same motive to investigate their cases and, in any case, DNA samples (the
primary cause of the exonerations) do not exist in many cases. Nevertheless, a
careful academic study published in 2014 by the National Academy of Sciences
offered the "conservative" estimate that at least 4 % of those defendants
executed in the U.S. since 1973 were factually innocent. This conclusion has
been widely accepted and, so far as I am aware, has not been challenged.
Cohen: Judge Rakoff, you are troubled about innocents potentially being
sentenced to death - you even issued an opinion saying the death penalty is
unconstitutional on that ground. Judge Posner, you seem mildly concerned but
don't see the injustice as so great statistically. Still, neither of you seem
bothered - call it "cruel and unusual punishment" or not - that, in employing
the death penalty, the state actually kills people in the name of justice. Nor
do you argue much over its deterrent value.
Posner: I'm no more bothered by the cruelty issue than I am by killing enemy
soldiers in wartime, or civilians in war who are in the way, so to speak
(during World War II, we killed civilians but also shortened the war). If a
defendant is proved to be a murderer (and was not insane when he murdered), I
don't see the objection to executing him, especially if the threat of capital
punishment has at least some deterrent effect - and especially if, like McVeigh
and Dylann Roof and others, the defendant murders many people, or a child, or
commits a racially motivated murder, or is a foreign terrorist. By the way,
Joel, your question makes me wonder if you're a vegetarian. Personally, I think
hunting harmless animals is worse than executing murderers.
Rakoff: The "deterrent effect" of the death penalty is at best a hunch, but
most (though not all) academic studies suggest that it has little or no effect.
This is because most murders (the chief offense for which the death penalty is
imposed) are the product of violent, uncontrolled rages or mental infirmities
and delusions. For many decades there has been general agreement among
criminologists that deterrence is chiefly a function of the likelihood of
getting caught rather than the penalty. And even among those small number of
would-be murderers (if any) who take account of possible punishment in deciding
whether to commit their crimes, can anyone really state with confidence that a
meaningfully greater number are deterred by the death penalty as opposed to
life imprisonment? Of course, there's greater emotional satisfaction from
seeing a horrendous murderer put to death rather than seeing him rot in jail,
though that emotional surge tends to be much stronger at the time of conviction
and not when the defendant is actually executed, often years later. But as a
practical matter, the big difference between execution and life imprisonment is
the possibility of wrongly convicted defendants being freed and able to resume
their lives. Before we remove this possibility from the 4 % (or more) who fit
this category, we ought to have a pretty strong rationale for doing so. War may
provide such a rationale, but a doubtful deterrent effect or an immediate
emotional charge does not. In truth, in the U.S. today, survival of the death
penalty is largely a function of cultural norms rather than rational
reflection. That is why, in practice, it chiefly survives in the South - where,
however, it appears to have had very little effect in deterring the relatively
high murder rates of those states.
Posner: I am not persuaded. You imply that the death penalty has no deterrent
effect at all. That seems improbable. The fact that Southern states have high
murder rates should make one wonder whether those rates wouldn't be even higher
were there no death penalty. I wonder whether you believe that the death
penalty has always and everywhere been de trop, too much, or that something
happened to enable us to dispense with it without thereby increasing the murder
Cohen: Judge Posner, your position on the death penalty seems to me very
hard-line. Just last week, the Supreme Court, 5 - 4, denied Ledell Lee of
Arkansas a stay of execution - Lee having argued, the same as other Arkansas
death row inmates, that the use of midazolam in the death penalty cocktail
presents too great a risk of a very painful execution. A New York Times
editorial last week powerfully attacked the court - and in particular Justice
Neil Gorsuch for his (1st) significant vote as a justice in denying the stay.
Does your approbation of the death penalty have no bounds?
Posner: Of course it has bounds! I don't approve of the death penalty for
crimes other than murder, or for that matter for all murders, and concretely I
don't approve of the Supreme Court's decision in the Lee case upholding Lee's
execution. Its excoriation by the New York Times is entirely sound. There were
2 reasons not to execute Lee. One was the use of midazolam as one of the
execution drugs - a drug that has caused numerous botched executions by failing
to render the person being executed unconscious promptly. The other is the
extraordinarily bleak background of Lee coupled with his totally inadequate
representation at his trial, summarized in the editorial as follows:
[L]ike so many others condemned to die around the country, [Lee] was a walking
catalog of reasons the American death penalty is a travesty.
Evidence that Mr. Lee was intellectually disabled and suffered from fetal
alcohol syndrome was never introduced into court, mainly because he had
egregiously bad representation. One of his lawyers was so drunk in court that a
federal judge reviewing the case later said he could tell simply by reading the
Cohen: Judge Rakoff, given your views stated above, this might be a softball:
Even if "guilt," fair trial, and sufficient mental competency were
scientifically ascertainable, would the pain risk in using midazolam, for you,
nonetheless be the last nail in the coffin for imposing the death penalty?
Rakoff: Like many unrealistic hypothetical questions, your question is flawed,
Joel, because it asks the answerer to assume a set of facts - the certainty of
guilt, competency, etc. - that are most unlikely ever to exist. It's a little
like asking: If heaven is perfect, would a spot on Earth where there was total
peace and tranquility still not qualify as a heaven if its inhabitants included
lawyers? Moreover, I don't know enough about midazolam to have the basis for
formulating an opinion about its use. But I am reminded of the fact that when
the electric chair was first conceived - by a dentist (of course) named Alfred
Southwick - it was touted as being painless. But when it was first actually
used (on a man named William Kemmler), the results were so physically horrific
that George Westinghouse, whose company made the product, stated that "They
could have done better using an ax."
(source: Joel Cohen, a former prosecutor, practices white-collar criminal
defense law at Stroock & Stroock & Lavan LLP and is the author of Blindfolds
Off: Judges on How They Decide.
Richard A. Posner is a judge, U.S. Court of Appeals for the 7th Circuit, and a
senior lecturer at the University of Chicago Law School.
Jed S. Rakoff is a senior judge on the U.S. District Court for the Southern
District of New York and an adjunct professor at Columbia Law
Why we should kill the death penalty
2 men were executed Monday night in Arkansas in the nation's 1st double
execution since 2000. Oklahoma and Louisiana, on the other hand, have recently
worked to end capital punishment in their states, even if only temporarily.
The sudden strides across the country in different directions have reignited
the debate on the efficacy and morality of the death penalty in the United
This debate, though, should have been settled a long time ago. There are few
good reasons to support the use of capital punishment, and its many flaws make
it a nearly untenable position in today's America.
The main reason the death penalty is supported in the world today is the myth
that it deters other violent crimes. A study found that 88 % of experts in
criminal justice studies denied the claim that capital punishment actually
deters future criminals.
Crimes that merit such severe punishments are often done hastily or by those in
need of mental healthcare. Neither of these scenarios involve a careful
weighing of the consequences of crime. The difference between life in prison or
death probably means very little to someone considering such heinous acts.
Statistically, there is no correlation between the death penalty and lower
crime rates. In fact, states without capital punishment have lower murder rates
than those with it.
The death penalty does not only fail to achieve its purpose as a punishment but
also causes a great deal of harm and injustice.
The exoneration of someone on death row is not uncommon; for every 10 people
who have been executed since the death penalty was reinstated in the U.S., 2
person has been set free.
It's not difficult to imagine, then, the number of people who aren't recorded
in this statistic because they were executed before they could be exonerated.
One study estimates that for every person who was exonerated, another was
This is the tragic irony of capital punishment: It propagates the very thing it
hopes to destroy. In trying to eliminate murder through execution, more
innocent lives are lost.
This begs the question: Why do we keep the death penalty around? One reason is
the human instinct to meet violence with violence. When the public sees a
horrific crime, the first reaction is often extreme punishment to satisfy a
thirst for revenge.
While "an eye for an eye" worked as a justice system in ancient times, we have
the ability to move past it for a more progressive, restorative sense of
justice. The old ways of thinking about justice revolved around what the
wronged felt and what revenge they desired.
Now, our views of justice should progress, being centered on the healing of all
parties involved. Perhaps our justice system can work for the best outcome of
the victim, criminal and public without contradiction.
The death penalty simply doesn't allow for this type of justice. Instead of
considering the facts of what actually deters crime, it is an emotional
reaction of meeting violence with more violence. It makes society more
dangerous, not safer, for the innocent.
Capital punishment also rejects the notion of redemption for criminals. Instead
of allowing them the opportunity to change their ways and become contributing
members of society, even if that is while incarcerated, execution cuts their
When trying to decide what justice is, we should contemplate the goal of our
system. If it is to make a healthier, more whole society where redemption and
safety are priorities, we should move past the death penalty.
(source: Opinion; Daniel Payne is a freshman integrated marketing
communications major from Collierville, Tennessee----The (Univ. Mississippi)
Should Christians Support the Death Penalty?
Arkansas executed a 4th prisoner on death row last night. 3 days prior to that,
the state had done 2 back-to-back executions by lethal injections in Lincoln
County, Arkansas. 4 other executions have been blocked by court order.
As a Catholic scholar who writes about religion, politics and policy, I
understand how Christians struggle with the death penalty - there are those who
cannot endure the idea and there are others who support its use. Some Christian
theologians have also observed that capital punishment could lead to the
conversion of criminals who might repent of their crimes when faced with the
finality of death.
Is the death penalty anti-Christian?
The 2 sides
In its early centuries, Christianity was seen with suspicion by authorities.
Writing in defense of Christians who were unfairly charged with crimes in
2nd-century Rome, philosopher Anthenagoras of Athens condemned the death
penalty when he wrote that Christians "cannot endure even to see a man put to
death, though justly."
But as Christianity became more connected with state power, European Christian
monarchs and governments regularly carried out the death penalty until its
abolition in the 1950s through the European Convention on Human Rights. In the
Western world, today, only the United States and Belarus retain capital
punishment for crimes not committed during wartime.
According to a 2015 Pew Research Center Survey, support for the death penalty
is falling worldwide. However, in the United States a majority of white
Protestants and Catholics are in favor of it.
In the Hebrew Bible, Exodus 21:12 states that "whoever strikes a man so that he
dies shall be put to death." In Matthew's Gospel, Jesus, however, rejects the
notion of retribution when he says "if anyone slaps you on the right cheek,
turn to him the other also."
While it is true that the Hebrew Bible prescribes capital punishment for a
variety of offenses, it is also true that later Jewish jurists set out rigorous
standards for the death penalty so that it could be used only in rare
Support for death penalty
At issue in Christian considerations of the death penalty is whether the
government or the state has the obligation to punish criminals and defend its
Saint Paul, an early Christian evangelist, wrote in his letter to the Romans
that a ruler acts as "an avenger who carries out God's wrath on the wrongdoer."
The Middle Ages in Europe saw thousands of murderers, witches and heretics put
to death. While church courts of this period generally did not apply capital
punishment, the church did turn criminals over to secular authorities for
13th-century Catholic philosopher Thomas Aquinas argued that the death penalty
could be justified for the greater welfare of society. Later Protestant
reformers also supported the right of the state to impose capital punishment.
John Calvin, a Protestant theologian and reformer, for example, argued that
Christian forgiveness did not mean overturning established laws.
The case against
The deterrence value of capital punishment remains an issue of debate. In the
United States, there are also strong arguments that capital punishment is
unfairly applied, especially to African-Americans.
Among Christian leaders, Pope Francis has been at the forefront of arguing
against the death penalty. Saint John Paul II also maintained that capital
punishment should be reserved only for "absolute necessity."
Pope Francis observes that the death penalty is no longer relevant because
modern prisons prevent criminals from doing further harm.
Pope Francis speaks of a larger ethic of forgiveness. He emphasizes social
justice for all citizens as well as the opportunity for those who harm society
to make amends through acts that affirm life, not death.
Jesus' admonition to forgive one's enemies is often thought to do away with the
"law of the talion," or an "eye for an eye" retribution - a standard that goes
as far back as the prebiblical Code of Hammurabi - a law code of ancient
For many, the debate is about the relationship between Christ's call for
forgiveness and the legitimate powers of the state.
Those Christians who support capital punishment argue that Jesus was talking
about heavenly realities, not the earthly matters that governments have to deal
with. Christians who oppose the death penalty say that being Christian means
bringing heavenly realities to the here and now.
This debate is not just about capital punishment, but about what it means to be
(source: Mathew Schmalz, Associate Professor of Religion, College of the Holy
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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