Florida is worried that it’s not killing people fast enough

[Update below]

Florida is worried that it’s not killing people fast enough.  From Emily Bazelon:

[Florida] recently became the first in the country to pass a bill requiring the pace of executions to speed up. It’s called the Timely Justice Act, and it sets a deadline of 30 days for the governor to sign a death warrant once an inmate’s appeals become final—that is, after at least one round of state and federal appeals, and after a review by the governor for clemency. And once the governor signs the warrant, the Timely Justice Act says the execution must occur within 180 days. Scott signed the bill into law late Friday.

This is a particularly troubling plan given the circumstances in Florida. Since the mid-1970s, the state has executed 77 people. Florida has also exonerated 24 people who’ve been sentenced to die—the most of any state. In other words, for every three inmates executed, one is set free.

Apparently, the justification being offered for this (for those who are willing to talk about it) is a claim that people who are on death row, and their lawyers, are sitting on evidence that could exonerate them, so this will encourage them to move faster so that the innocent won’t be affected.

Colbert on the Death Penalty

It looks like Maryland will soon get rid of its death penalty, which is a great progressive win. It’s also a win for justice and due process.  Kirk Bloodsworth was the first man exonerated from death row on the basis of DNA evidence, one of 142 people convicted and sentence to die since the Supreme Court reinstated the death penalty in 1973 that was exonerated. He now is an advocate working to rid us of the death penalty state by state, and he appeared on Colbert last night.

Watch the whole thing.  Here’s Stephen:

The killing innocent people card is so….easy to win the argument. Because it is the worst thing you can imagine, and if that is true, then no state should have the death penalty. Because if one person dies who is innocent that is too many. That itself is a murder that we are all complicit in, for looking the other way.

“I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold”

Nicole Flatow at Think Progress has a small bit of good news on the death penalty front.  “A newly elected Ohio Supreme Court justice who achieved the unlikely feat of ousting an incumbent without accepting any campaign contributions is not wasting any time in asserting his opposition to the death penalty.”

The opinion is short, but powerful, even as it leaves out some of “the other compelling rationales for abolishing the death penalty – its arbitrary and racially discriminatory imposition, and the alarming frequency of wrongful convictions.” I thought it was worth quoting Judge William O’Neill in full.

Catch 22 and the Death Penalty: Shredding Due Process to Punish the Abused

Via Sentencing Law and Policy, Justice Sotomayor dissented (pdf) from a denial of review for a death penalty case, and her opinion illustrated two important points.

Petitioner Benny Lee Hodge was convicted of murder.  Then, after his trial counsel failed to present any mitigation evidence during the penalty phase of his trial, he was sentenced to death.  In fact, counsel had not even investigated any possible grounds for mitigation. If counsel had made any effort, he would have found that Hodge, as a child, suffered what the Kentucky Supreme Court called a “most severe and unimaginable level of physical and mental abuse.” No. 2009–SC–000791–MR (Aug. 25, 2011), App. to Pet for Cert. 11.  The Commonwealth conceded that counsel’s performance was constitutionally deficient as a result.  Yet the court below concluded that Hodge would have been sentenced to death anyway because even if this evidence had been presented, it would not have “explained” his actions, and thus the jury would have arrived at the same result.  Ibid.  This was error. Mitigation evidence need not, and rarely could, “explai[n]” a heinous crime; rather, mitigation evidence allows a jury to make a reasoned moral decision whether the individual defendant deserves to be executed, or to be shown mercy instead.  The Kentucky Supreme Court’s error of law could well have led to an error in result.  I would grant the petition for certiorari, summarily vacate, and remand to allow the Kentucky Supreme Court to reconsider its decision under the proper standard.

Just so we’re clear, Hodge failed to get his constitutionally required level of performance from his lawyer, effectively denying him his right to counsel and due process.  And the Court will leave this stand.  This passage shows the catch-22 of the death penalty. The Court has insisted that due process doesn’t require getting a correct result, it requires following the correct procedures. This is why actual innocence is not a federal claim.  But when, like here, basic fairness has been denied, whether because of incompetent state appointed defense lawyers, or cheating by police or prosecutors, the Court shifts.  No longer is following the correct procedures what is required. Instead, there is an independent inquiry where judges decide what the jury would have done if they had known what they should have known.  This not only undermines the right to a jury trial, but it directly contradicts the reasoning for not allowing innocence claims.

Sotomayor is correct, in my mind, that the Court erred in failing to overturn the ruling below. Mitigation is not about explaining the crime. This is basic stuff.  But it’s important to understand what was kept from the jury’s view.  Like practically all death penalty defendants, Hodge was himself a victim of horrific abuse.  Here the justice recounts the evidence. Read on if you can stomach it.

The beatings began in utero. Hodge’s father battered his mother while she carried Hodge in her womb, and continued to beat her once Hodge was born, even while she held the infant in her arms. When Hodge was a few years older, he escaped his mother’s next husband, a drunkard, by staying with his stepfather’s parents, bootleggers who ran a brothel. His mother next married Billy Joe. Family members described Billy Joe as a “‘monster.’” Id., at 7. Billy Joe controlled what little money the family had, leaving them to live in abject poverty. He beat Hodge’s mother relentlessly, once so severely that she had a miscarriage. He raped her regularly. And he threatened to kill her while pointing a gun at her. All of this abuse occurred while Hodge and his sisters could see or hear. And following many beatings, Hodge and his sisters thought their mother was dead.

Billy Joe also targeted Hodge’s sisters, molesting at least one of them. But according to neighbors and family members, as the only male in the house, Hodge bore the brunt of Billy Joe’s anger, especially when he tried to defend his mother and sisters from attack. Billy Joe often beat Hodge with a belt, sometimes leaving imprints from his belt buckle on Hodge’s body. Hodge was kicked, thrown against walls, and punched. Billy Joe once made Hodge watch while he brutally killed Hodge’s dog. On another occasion, Billy Joe rubbed Hodge’s nose in his own feces.

The abuse took its toll on Hodge. He had been an average student in school, but he began to change when Billy Joe entered his life. He started stealing around age 12, and wound up in juvenile detention for his crimes. There, Hodge was beaten routinely and subjected to frequent verbal and emotional abuse. After assaulting Billy Joe at age 16, Hodge returned to juvenile detention, where the abuse continued. Hodge remained there until he was 18. Over the 16 years between his release from juvenile detention and the murder, Hodge committed various theft crimes that landed him in prison for about 13 of those years. He twice escaped, but each time, he was recaptured.

It would be nice to believe that this was some sort of aberration, but anyone with a little familiarity with the backgrounds of death row inmates knows that it’s not. The death penalty is billed as a punishment for the worst of the worst, but really it is a punishment for those who have been most failed.  No prosecutor wants a jury to hear these stories because it doesn’t fit with how the death penalty is sold.  So this creates incentives to cheat and for judges to look the other way.  That is your death penalty. It convicts the innocent, is racially biased, makes a mockery of the law and provides our harshest punishment to those most brutalized, all while spending more while providing no additional public safety. And the money and attention it uses drain money that could be used to intercede in situations like this, potentially breaking the cycle of violence – if that was what our goal was.

The death penalty is a brutal policy of failure.

“The Struggle for Justice Doesn’t End With Me”

If This is the Best They Can Do: The Tragedy of Terry Williams

Andrew Cohen has an amazing piece in the Atlantic about Terry Williams, the latest horrendous death penalty case that is winding its way towards an execution in Pennsylvania.  Despite a lustful desire to kill someone from the state’s machinery of death, the state hasn’t executed anyone who had not given up fighting it since before the Supreme Court temporarily halted the death penalty in 1976.

Williams suffered years of sexual abuse and violence from an early age.  Cohen rightly calls it a horrific life.

When he was 17, Terry Williams snapped. On January 26, 1984, when a man named Herbert Hamilton tried to sexually assault him, when the older man plied the teenager with gifts and then tried to rape him, Williams finally fought back. Hamilton stabbed Williams. Williams stabbed back, 20 times the autopsy revealed, until and after Hamilton was dead. Prosecutors portrayed the crime as a homosexual love affair gone wrong. In 1985, a jury convicted Williams of third-degree murder and a judge sentenced him to 10 to 20 years in state prison.

While Williams isn’t on death row today because of the Hamilton case that case is instructive in establishing a pattern of behavior on the part of Williams during that period in his life. A few months after Williams murdered Hamilton, a few months after the young man turned 18, he murdered another sexual predator, another one of the reported child rapists into whose realm he had wandered, another man who he says had violently assaulted him, a man named Amos Norwood, leader of the acolytes at St. Luke’s Episcopal Church in Philadelphia.

Norwood plied Wiliams the same way the others had. The more violent the sexual predator became during his repeated rapes the more money he would give Williams. On June 10, 1984, Norwood took Williams to an unlit parking lot and raped him until he bled. The next day, June 11, 1984, Williams brutally murdered Norwood with a tire iron, the culmination of an attack Williams’ doctor later attributed to his years of abuse. This time, following a brief 1986 trial, a jury convicted Williams of first-degree murder. This time, he was sentenced to death.

That’s  background is precisely the sort of thing that is supposed to be taken into account at the penalty phase of a trial, when the question of the death penalty is considered. But it was never even investigated, and the state cut a deal with Williams co-defendent for his testimony that offered an entirely different story of an unprovoked killing (that he’s since recanted.)

It’s not just those of us, like me, that oppose any executions that think this case is a travesty.

This is so despite the fact that the widow of Williams’ victim now believes that his sentence should be commuted to life. It is so despite the fact that eight former judges — federal and state — now believe his trial was unjust. It is so despite the pleas of 28 former prosecutors — federal, state and local — who have gone on the record saying that justice would be served by clemency. It is so despite the fact that five of Williams’ trial jurors have come forward and declared, under oath, that they never would have recommended a death sentence for him had they known of material facts his defense attorneys did not introduce at trial.

Read the whole thing. It’s beautiful and disturbing.  But here’s my question. The state wants to kill someone.  And yet here they choose an absolutely devastating case, one that demonstrates everything wrong with the system (except a valid  innocence claim, which are also fairly common), one that involves a youth victim of sexual assault (after the state’s failure to stop Sandusky), one that is so bad it’s generating opposition from all sorts of people who strongly support the death penalty in the abstract.  Wouldn’t they choose a case that show cases the best fact pattern imaginable for the pro-death position?  But if you are at all familiar with the death penalty in the United States, you’d know that no such case exists.  Support for the death penalty rests on a fantasy of those who grew up in nice homes and are not crazy who go on killing sprees, who hire the best legal team, and on and on. But it is just a fantasy. Pennsylvania knows this, which is why they alone won’t even tell their juries that life without parole is an alternative to the death penalty.

The system as it actually exists cannot be defended.  That seems like reason enough to end it.

[Update] Cohen has a follow up piece noting that the state pardons board voted in favor of clemency, 3-2, but state law require a unanimous vote.  As he notes, the board members do not offer reasons for their votes, but the prosecutors’ brief opposing it tells much of the story.  There’s a great deal to be outraged by, but this is particularly disturbing.

The brief also tells us that some of the same state officials who came late to the Sandusky scandal, reassuring their mortified constituents that they are sensitive to the difficulties in reporting child sex abuse, have cynically turned that argument around in Williams’ case. He didn’t come forward, either, for many years, to report the ways in which he was being raped by older men, including older men in positions of power and trust. And now, say these politicians and bureaucrats, it’s too late for Williams to bring it up; too late even though his life is on the line.

The Death Penalty System is Lawless: Texas to Defy the Law (Again)

Paul Campos notes the most recent injustice in our death penalty system—the state of Texas plans on executing a man with the IQ of child (for a crime he may well not have even been present for) despite the Supreme Court ruling in Atkins v. Virginia (2002) that the Eighth Amendment bars executions for defendants with “mental retardation.” Read the details if you can stomach it, but Campos sums up the situation well.

Wilson is a poster child – in every sense – for the savage arbitrariness of the death penalty as it is employed by the state of Texas. Poor, black, with the mental age of a six-year-old, he was sentenced to death for his ambiguous role in a drug-trade murder, when literally every day in America people are given far lighter sentences for more heinous crimes.

The death penalty system is lawless – if a state were forced to respect the law and conform with due process, it would collapse.  That this is done in the name of law and order is one of the more patently false claims in politics, which is saying something.  The Venn diagram showing those who vigorously support the death penalty and those who take constitutional rights and avoiding executing the innocent seriously does not intersect.  Killing someone is more important than preventing future crimes, our constitutional system, or playing fair.  It’s worth asking what purposes this serves, because it sure isn’t justice. And no, the fact that our discourse is so lopsided on this issue cannot be blamed on regular people, who are closely divided.  This punitiveness is driven by our failing elites.

Also, remember that 33 states and the federal government still have the death penalty.  It is not isolated to places like Texas, but is common in places where progressives have more leverage. And it will never end there until it’s ended in places like Maryland and California (on the latter see Yes on 34).

The Death Penalty and the Perils of Progressive Fatalism

Today, Up With Chris Hayes featured a good discussion of wrongful convictions and the death penalty.  But Chris repeated a misleading claim about public opinion on the death penalty that highlights a larger problem.  The claim was that Americans overwhelmingly support the death penalty, and therefore efforts to repeal the death penalty face a serious challenge in terms of changing people’s minds.  Chris pointed to a poll showing that a solid majority of Americans said the death penalty was morally justified.  More typically, people point to polls that ask simply if people support or oppose the death penalty. 

Intuitively, this makes sense.  The problem is that it’s a false choice.  When polls offer people alternatives to the death penalty, those numbers shift considerably. Gallup has shown this for some time. When offered the choice of the death penalty versus  life without parole, public opinion is evenly split. The abolitionist Death Penalty Information Center offers an even more nuanced look.

Note, this poll doesn’t offer people new information, it simply gives them additional choices. What happens when people do hear new information? The numbers shift even more.

What does this mean? It means that many of those people who are allegedly supportive of the death penalty would chose another penalty if given the choice. It means that ‘support’ is soft.  Hardly the stuff of fatalism.

I know why someone who supports the death penalty might prefer the first set of questions over the second.  But why would an opponent?  And Chris is not unusual here. Why do death penalty opponents so often fail to offer the full picture? I don’t know the answer. I suspect a lot of progressives, after years of conservative dominance (which is not the same as majority support for conservative opinions) have adopted an identity of being on defense, of being outnumbered, and just see the world through that lens.  But doing so is both distorting and poses a barrier for those who seek progressive change.

* I’m leaving aside three important issues. First, public opinion does not generally drive policy.  Second, results of polling is not the same as strongly and sincerely held opinions.  Three, we know that polling responses are partly a product of elite discourse. Right now, both parties are pro-death penalty, and as a result, so is the media.  If one party were to offer a different view, it would change media coverage and likely move polls as well.