Thursday, July 24, 2014

Don't Experiment With Drugs, Kids

Two Hour Botched Execution in Arizona:

Arizona had never tried the two-drug cocktail of midazolam and hydromorphone before it injected an unknown dose into Joseph Wood's veins Wednesday afternoon. Most executions by lethal injection take between 10 and 20 minutes once the drugs are injected, if performed properly. This experimental cocktail took almost two hours to end Wood's life, so long that his lawyer had time to file an emergency stay of execution in federal court, claiming that Wood had been "coughing and snorting for over an hour" by then. "I counted about 660 times he gasped," reported an Arizona Republic reporter who witnessed the execution. Arizona Governor Jan Brewer said in a statement that Wood "died in a lawful manner and by eyewitness and medical accounts he did not suffer."
And of course, Jan Brewer is perfectly qualified to make that judgment given A. she wasn't there and B. her advanced medical training and background.
Defense attorneys have repeatedly begged the courts to compel corrections officials to at least reveal the source of the drugs that would end their clients' lives. They have repeatedly been refused. This time, Wood and his lawyers tried a First Amendment challenge to execution-secrecy laws, arguing that the public has a right to know how their government puts their fellow citizens to death. This would also give the inmates the facts needed to pursue Eighth Amendment challenges.

But so far, lower courts have deferred to the states' claimed need for secrecy. "The information already released by the state enables informed debate about the lawfulness and propriety of Arizona’s two-drug cocktail," replied federal Judge Jay Bybee of the Ninth Circuit. Wood appealed that decision to the Supreme Court; last night, the justices denied his petition without further comment or dissent. Less than 24 hours later, Wood died choking.
And I noted the irony of "Judge" Bybee being part of the decision two days ago in my post. If anyone should know anything about torture, it's the author of the "Torture Memos" I suppose.

Predictably, the git tuff types are howling back with false equivalents and other straw men regarding what Wood did to end up there (as if we should be using a murderer's actions as our baseline for determining morality and legal punishments), and insisting that the witnesses themselves were wrong (even if they weren't there).
When states were able to use the single-drug protocol with pentobarbital, the executions went smoothly.  The problem here has been caused by those who pressured the suppliers to stop supplying pentobarbital, and any response should be directed at reopening that supply line.

The anti-death-penalty crowd is already throwing around their favorite word, "botched."  Wrong.  Joseph Wood died, as he should have, and he was sedated, not suffering extreme pain or, for that matter, any pain.  That is not "botched."
Again, a pro-death penalty blogger (who wasn't there and has no medical background or training) isn't qualified to make that statement. Although I do like the way he assertively identifies the killer "Joseph Wood" by name...ironically, the Arizona Department of Corrections didn't even know his name when they killed him initially, referring to him as "Robert G. Jones" in a press release. Jones, Wood, Smith, whoever.

More fascinating is that it took so long to be carried out, Wood's lawyers had time to make an appeal in the courts to stop it, even getting Justice Anthony Kennedy on the phone from the Supreme Court.
In a bizarre twist, Mr. Wood’s lawyers filed an emergency appeal to a Federal District Court to halt the procedure as Mr. Wood lay on the gurney, and they even called Justice Anthony M. Kennedy of the United States Supreme Court.

“He is still alive,” the lawyers said in the district court appeal, filed just after 3 p.m. “This execution has violated Mr. Wood’s Eighth Amendment right to be executed in the absence of cruel and unusual punishment. We respectfully request that this court stop the execution and require that the Department of Corrections use the lifesaving provisions required in its protocol.”

Mr. Wood died before the district court responded, while Justice Kennedy turned down the request to halt the procedure by telephone while Mr. Wood was still alive, said Robin Konrad, a lawyer for Mr. Wood.
Which makes no sense. What, "let's see if he dies first and then make the call to stop it?" I have a hard time believing one of our supreme court justices could be that dense.

Regardless, as I wrote the other day, the death penalty itself is circling the drain and will eventually be relegated to the ash heap of history where it resides in most other civilized worlds. But it won't be before the junkies (er pro-death penalty states experimenting with illicit drugs) and their supporters torture to death scores more in the process.

Cross posted to: The Cranky Sociologists 

UPDATE: Today's NYT (7/25) has more on the fallout of Arizona's chamber of horrors. The state AG has suspended further executions until further notice.
The Arizona attorney general on Thursday called a temporary halt to executions in the state, a day after the convicted killer Joseph R. Wood III died one hour and 57 minutes after his execution began. Death penalty experts said it was one of the longest times it has taken in the United States for drugs to kill a condemned man.

But Charles L. Ryan, the director of the state’s Department of Corrections rejected the notion that the execution was botched, despite the fact that the procedure of death by lethal injection usually takes about 15 minutes. He said in a statement that an autopsy by the Pima County medical examiner, concluded on Thursday, found that the intravenous lines were “perfectly placed,” “the catheters in each arm were completely within the veins” and “there was no leakage of any kind.”

“I am committed to a thorough, transparent and comprehensive review process,” Mr. Ryan said.
LOL. That must be why the names of the execution team, the source of the drugs, and the chain of custody related to those drugs is "state secret" and Mr. Ryan's department has fought tooth and nail from allowing the information to be made public.

Interestingly, one of the judges who dissented in the decision to lift Wood's stay (thus being anti-death penalty) made the same argument the victim's family did in the aftermath: bring back the firing squad.
After the execution on Wednesday, Ms. Dietz’s brother-in-law, Richard Brown, scolded reporters, saying that Mr. Wood “smiled and laughed at us, and then went to sleep.” He added: “So all you people who think that these drugs are bad? Well, to hell with you guys. You guys need to look at the big picture. This man conducted a horrific murder and you guys are going, let's worry about the drugs. Why didn't they give him a bullet?"

In a legal opinion that preceded the execution, Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, dissenting from the court’s decision to deny a full hearing over a panel’s granting of a temporary stay of execution for Mr. Wood, said that death by lethal injection should be replaced by more “foolproof” methods, preferably firing squads. Judge Kozinski referred to drug-induced deaths as a “misguided effort to mask the brutality of executions by making them look serene and peaceful.” 

In a telephone interview on Thursday, Judge Kozinski declined to talk directly about the Wood execution, but said that in general, “bodies are different, and people react differently to the medicine” in lethal injections. “I think mishaps are inevitable” with drugs, he added, “unlike bullets.” Besides, he said, “These medicines are not made to kill people — they are made to heal.”
Precisely. I discuss this in my punishment class every year, but as we have sanitized the methods of killing, we somehow try to pass ourselves as more "humane and enlightened" in the 21st century, and in the process make the death penalty look like it's just someone laying down on a gurney and going to sleep.

The judge is saying: you want to keep the death penalty? Then let's go back to more barbaric methods like firing squads or the electric chair, and open them up to the public so we can see exactly what is taking place in the chamber.

Beyond a few knuckle-dragging supporters, the judge is arguing, most people would be aghast at the machinery of death up close and choose to put an end to it. 

Regardless, we (the people, the state) will continue playing the same games with bone and flesh that the murderers do. And call ourselves more "enlightened" in the process.

Monday, July 21, 2014

The Criminals Are Coming!

U.S. Sentencing Commission to Reduce 46,000 Drug Offender Sentences:

The U.S. Sentencing Commission voted Friday to slash the sentences of 46,000 inmates serving time for drug offenses, the latest move by federal officials to ease decades-old policies that have clogged the nation's prisons.

If the decision is not blocked by Congress, nearly half of federal prisoners incarcerated for drug crimes will be eligible for sentence reductions averaging more than two years. It would take effect Nov. 1, 2015.

The commission decided in April to reduce future sentences. Friday's vote extends the same approach retroactively to those already serving time.
It's ironic, for all the rhetoric these days of getting "smart on crime" and reforming the criminal justice system, it took the USSC and its intestinal fortitude to do what no legislative, judicial or executive branch of the government would dare to do: let inmates who clearly don't belong behind bars out of prison early. Not even my favorite AG Eric Holder can claim credit for this since they advocated for a much narrower interpretation and number of inmates.

As Doug Berman points out over at Sentencing Law and Policy, it's still up to the individual inmate to make the appeal for sentence reduction (it is not an automatic "prison holiday" for all 46,000 inmates, as dunderheads on the stuck-in-the-90's side have claimed). And whether or how these 46,000 inmates gain access to counsel to file an appeal for a reduced sentence is unknown.

Nonetheless, it's a bit of good news from the world of punishment and incarceration. It is still disappointing that our legislators, executives and courts are so fearful of allowing wrongfully convicted or inappropriately sentenced inmates out of our nation's prisons. But, baby steps, I suppose.

Bonus: John Oliver's take on this is absolutely dead on. Click the video to watch on Youtube.

Big Brother (With Benefits)

File this under: what a shocker.

NSA Gathered and Shared Sexually Explicit Photos:

The former National Security Agency contractor Edward J. Snowden said in a wide-ranging interview published on Sunday that the oversight of surveillance programs was so weak that members of the United States military working at the spy agency sometimes shared sexually explicit photos they intercepted.

In the interview, Mr. Snowden said that some of the American military personnel working on agency programs were between the ages of 18 and 22 and did not always respect the privacy of those whose communications were intercepted.

“In the course of their daily work they stumble across something that is completely unrelated to their work, for example an intimate nude photo of someone in a sexually compromising situation but they’re extremely attractive,” he said. “So what do they do? They turn around in their chair and they show a co-worker. And their co-worker says: ‘Oh, hey, that’s great. Send that to Bill down the way.’ ”

Mr. Snowden said that type of sharing occurred once every couple of months and was “seen as the fringe benefits of surveillance positions.” He said that this was never reported and that the system for auditing surveillance programs was “incredibly weak.”
Of course, we've known the NSA is a bunch of young guys in their 20's who were surfing porn sites under the guise of "national security." But this story confirms the Animal House-like behavior,   misogynistic treatment of women, and the overall dangers of employing "useless hacks" to spy on the American public "for their own shits and giggles."

Death Penalty on the Skids

Two big stories in the past week regarding the DP:

Court Delays Execution over Secrecy With Drugs:

A federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team. 

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. 

“This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law. 
The notion that where the junkies (er, states) are obtaining their drugs from are "state secrets" in need of protection from the public is ludicrous, as I've written for several years now. But it is interesting that this is the first appellate-level decision to recognize the insanity behind so-called secrecy laws.
On Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. 

Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.” 

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”
For those of you with short memories, Judge Bybee is the same guy who advocated for torture in the infamous "Bybee Memos" (sometimes called "The Torture Memos") during the Bush years. He has also been the subject of discussion regarding his impeachment and removal from the bench over the years.

Regardless, Judge Thomas's opinion recognizes the ongoing debate over the efficacy of the death penalty in the 21st century, including the recent take down by a federal judge of California's death penalty system.
“How has it gone on this long?” Justice Antonin Scalia asked a lawyer for the State of Florida during oral arguments in March on a condemned inmate’s appeal. The legal issue in that case had to do with how states define intellectual disability, but Justice Scalia was troubled that Freddie Lee Hall had been on Florida’s death row for more than three decades. 

In that same session, Justice Anthony Kennedy noted that the last 10 people executed by the state had spent an average of 24.9 years on death row.

“Do you think that that is consistent with the purposes of the death penalty,” Justice Kennedy asked the state’s lawyer, “and is it consistent with sound administration of the justice system?”

Last Wednesday, in an unrelated case, a federal judge in California answered that question with a resounding no. The state’s death-penalty system is “so plagued by inordinate and unpredictable delay,” wrote United States District Judge Cormac Carney, that it violates the Eighth Amendment’s ban on cruel and unusual punishment. 

In a remarkable ruling overturning the death sentence of Ernest Dewayne Jones, who was sentenced in 1995 for the murder of his girlfriend’s mother, Judge Carney, an appointee of President George W. Bush, pointed out that of the more than 900 people California has sentenced to death since 1978, 13 have been executed. More than 40 percent of the rest have been on death row for at least 19 years, and the backlog is growing.
Carney's opinion is, of course, just one district judge's opinion. It could easily be overturned at the appellate level or even by the Supreme Court, which itself has said that 20 years or more on death row does not constitute cruel and unusual punishment (Knight v. Florida, 1999).

And the get tough types are immediately pushing back against both decisions. Arizona's response, for example, to the secrecy injunction:
But Arizona officials were not backing down. On Sunday, the state appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary. 
And over at my favorite pro-death penalty blogger's site:
The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.
In other words, blame everyone else for the failings of a system you advocate for but yourself and your ilk. Even funnier is their proposed "Miranda-like" solution to speeding up the appellate process and gettin' folks dead (all the while, decrying Miranda as "lawless"). The, uh, "logic" of the pro-dp side never fails to amaze.

At the end of the day, neither of these decisions portends the end of the death penalty as we know it in the United States. But if California were to take the extraordinary step of getting rid of its apparatus of death, the trend towards abolition would undoubtedly accelerate. And under Trop, the death penalty may indeed fall at the SCOTUS level, even given the current makeup of the court.

Cross Posted to: The Cranky Sociologists

Friday, June 27, 2014

Sexual Assault On Campus Is A Crime

It is not an administrative matter for colleges and universities to adjudicate:

Lawyers representing colleges have a host of worries about if and how their institutions can possibly meet a burgeoning list of federal rules for dealing with sexual violence on campuses.

The new, and still evolving, laws and guidelines have set off a scramble at institutions across the country. Colleges that can afford it are hiring staff members to investigate and help resolve sexual-assault complaints. Smaller institutions that may not be able to afford to hire their own staff are pondering alternatives, such as collaborating with other colleges. Nearly every institution is poring over its policies and procedures for how to manage cases of sexual violence.
OK, let's stop right there and pause for a moment. Is there another institution in the world that gets to have its own "rules, guidelines and policies" concerning sexual assault or violence in its midst? Is there another organizational entity that has to have its own "sexual assault policy" that is somehow outside the bounds of what the law proscribes concerning sexual assault?

If an employee at Google or Home Depot is sexually assaulted at work, would the police turn over the investigation to the company and tell them to adjudicate guilt or innocence using their own "judicial review board"? If you were sexually assaulted at a Braves game, would the Braves get to decide the validity of the claim? If a high school student is sexually assaulted, do we convene a "judicial review board" made up of the principal, a teacher, a student and the janitor to decide guilt or innocence?

Of course not. The police would be called in those instances and trained investigators, experts in physical evidence and in working with victims of sexual assault, would decide whether to make an arrest. And then trained prosecutors would decide whether there was evidence enough to move forward with a prosecution.

But that's not what happens to victims of sexual assault on campus. Instead, we have created this fantasy world, this extra-legal bubble around colleges and universities where victims of sexual assault have somehow forfeited their 14th amendment right to due process and often endure re-victimization at the hands of university bureaucrats. 
In conversations with lawyers here at the annual meeting of the National Association of College and University Attorneys, nearly all stressed that colleges want to protect students from sexual violence, and that it is the right thing to do. But even as colleges work to do so—and to meet the administrative and legal requirements that now entails—lawyers here expressed frustration that their institutions were being held to a different standard than even law-enforcement agencies and were being given increasingly complex rules that sometimes go well beyond their capacity.
It goes beyond their capacity because there is not one single qualified individual on a college campus to sit in judgment of such a criminal matter. Not one. That's a matter that should be left to trained judges in our criminal courts. Bringing in university or college Legal Department lawyers, who claim they want to protect the students, is an insult. These are are the last people who should be involved because university lawyers have only one primary responsibility: to protect the university. Not you.
The pressure on colleges to respond more comprehensively to sexual assaults has been increasing since 2011, when the U.S. Department of Education’s Office for Civil Rights sent a letter to campuses explaining that a college’s mishandling of complaints could lead to a finding that it was in violation of Title IX of the Education Amendments of 1972, which prohibits gender discrimination at educational institutions that receive federal money.

That pressure has grown significantly in recent months. In May the Education Department announced that the Office for Civil Rights was investigating more than 50 colleges for possible violations of Title IX in their handling of complaints of sexual violence or harassment. The number of colleges under investigation has since grown to more than 60.

In Apri, (sic) the White House issued stringent guidelines designed to help colleges prevent and respond to sexual violence and to offer students a "road map" for filing complaints against institutions that fall short in their responses.
Incredibly, all of this federal morass of guidelines, investigations and threats confuses sexual assault/violence with sexual harassment in the workplace. The latter is definitely the purvey of college and university boards to police and handle as they see fit. However, sexual assault on campus is not a "gender discrimination" issue. It's a crime.

This is very simple: victims of sexual assault should notify the police. And if they choose not to notify the police and instead inform someone at the college or the university, the appropriate measure at that point is for the college or university to bring in the police and determine what happens next.

For those who worry about the nature of "he said, she said" claims involving college students, drinking, etc., (incredibly and stupidly articulated by the brain dead George Will recently) again, this should quite clearly play itself out in the criminal justice system, and not be adjudicated by a university administrator, a professor, a student, and a university lawyer (which sounds like the beginning of a bad joke, frankly).

As agents of the university, none of those people is qualified to determine what happened in a sexual assault case. The lack of oversight and the incriminating, blame the victim mentality that seeps into these informal, kangaroo-court hearings is beyond troubling. The hearing transcripts are never made public, and all the hearings themselves are governed by preponderance of the evidence, rather than guilt beyond a reasonable doubt, burden of proof rules. High school mock trials are run tighter than this.

Sexual assault and violence on campus is not a civil rights issue. It's a criminal issue, and as such should be handled in the criminal justice system. Period.

Cross Posted to: The Cranky Sociologists 

UPDATE: Today's NYT (July 13) has an in-depth analysis of one particular case at a small college in New York. As I noted in the post above, virtually everything about the profiled case was handled incorrectly and inappropriately by the college. Failing to report the crime to the police (discouraged, actually, by both administrators and "campus security"), the college has to investigate the allegations under federal "sexual harassment" guidelines, which, as I've noted already, is completely absurd. Sexual assault and sexual harassment are not even remotely related by any legal or moral definition. One is a crime, the other a civil matter.

And reading the article, it becomes even more imperative why these two things should not be conflated and instead separated, with assault (rape) being sent back to the criminal justice system where it belongs.
Whatever precisely happened that September night, the internal records, along with interviews with students, sexual-assault experts and college officials, depict a school ill prepared to evaluate an allegation so serious that, if proved in a court of law, would be a felony, with a likely prison sentence. As the case illustrates, school disciplinary panels are a world unto themselves, operating in secret with scant accountability and limited protections for the accuser or the accused.

At a time of great emotional turmoil, students who say they were assaulted must make a choice: Seek help from their school, turn to the criminal justice system or simply remain silent. The great majority — including the student in this case — choose their school, because of the expectation of anonymity and the belief that administrators will offer the sort of support that the police will not.

Turning to the police may not offer a more equitable alternative. For example, as The Times reported in April, the Tallahassee police conducted virtually no investigation of a Florida State University student’s rape complaint against the star quarterback Jameis Winston.

College administrators have their own incentive to deal with such cases on campus, since a public prosecution could frighten parents, prospective students and donors. Until last year, Hobart and William Smith’s chief fund-raiser also helped oversee the school’s handling of sexual assaults. 
Er...wow.

So they encourage and convince the students that they are better equipped to deal with the case, then don't allow anyone access to the proceedings citing "privacy laws". But they did identify the victim to the entire school.
Yet privacy laws did not stop Hobart and William Smith from disclosing the name of the woman — a possible rape victim — in letters to dozens of students. “I’m surprised they didn’t attach my picture,” she said.

The school said it was legally obligated to identify Anna to students who might have been called to testify in a possible criminal proceeding. The district attorney who was assessing the case disagreed, calling the identification “unnecessarily specific and, in my mind, a poor exercise of judgment.”
The entire thing is an exercise in poor judgment, including the kangaroo panel the student had to appear in front of.
The panelists could act pretty much as they wished, including questioning Anna about internal college reports and witness statements that she was not shown. Also absent were the usual courtroom checks and balances. The panel acted as prosecutor, judge and jury, questioning students and rendering judgment. All members were supposed to be trained for this delicate assignment.

The chairwoman, Sandra E. Bissell, vice president of human resources, was joined by Brien Ashdown, an assistant professor of psychology, and Lucille Smart, director of the campus bookstore, who the school said had expressed an interest in serving.
LOL. What, the janitors and groundskeepers were too busy? And the vp of human resources? No, no conflict of interest there (but much legal expertise to adjudicate a rape claim, no doubt).

What a galling incident. The article confirms word for word everything I wrote in the post above. Colleges and universities must be put out of the sexual assault/rape investigation business. Period.

Rape is not sexual harassment and no one on a college or university campus is qualified to adjudicate such horrific incidences. No wonder women on campus are being silenced and shamed into keeping quiet.

Friday, June 20, 2014

Orange Is The New Sterile

California Illegally Sterilizes Female Inmates:

An investigation of the California prison system revealed troubling numbers of female inmates who had been sterilized without their consent, in addition to many other breaches of protocol.

A report released on Thursday by the California State Auditor examined 144 cases of tubal ligations (more commonly referred to as having one’s “tubes tied”) performed on imprisoned women over the course of eight years.

“Some of the inmates were sterilized unlawfully, and there were certain safeguards that were designed to limit those occurrences, and those failed,” Margarita Fern├índez, the auditor’s chief of public affairs, tells TIME.

Among the 144 cases, 39 sterilizations were performed without the inmate’s lawful consent. In another 27 cases, the inmate’s physician did not sign the form that confirmed two key components of consent: first, that the patient was mentally competent and understood the lasting effects of the procedure, and second, that the required waiting period had been satisfied.

Odd that they're calling in the "Medical Board of California" to investigate this rather than, y'know, the FBI with the possibility of seeking criminal indictments against those responsible.

Well, they're just a bunch of women criminals, right? Who cares?

In other "Orange is the new Dead" news, this past week saw three executions, one here in Georgia, within a 24 hour span.
When Florida followed through with the execution of John Ruthell Henry Wednesday evening, it brought the tally of state executions in the last 24 hours up to three, a change of pace since a botched lethal injection in Oklahoma on April 29 caused a de facto pause on the death penalty due to national jitters over the humaneness of the drugs used in the procedure.

This recent spate of executions comes just months after Oklahoma botched the lethal injection of inmate Clayton Lockett, who had a heart attack and whose physical movements indicated pain for 25 minutes after being administered the lethal injection. In the wake of that execution, a number of appeals have been granted to prisoners seeking to avoid a similar fate.

Lawyers for Marcus Wellons, executed on Tuesday evening in Georgia, and John Winfield, executed Wednesday afternoon in Missouri, used similar arguments in their appeals, but were rejected.
Apparently, there were no incidences of writhing around in agony on the gurney, that we're aware of anyway. Some reports say it took more than an hour to get Wellons dead in the Georgia execution in Jackson, and that a witness passed out.
Wellons was executed at the Georgia Diagnostic and Classification Prison in Jackson, located about 45 minutes south of Atlanta.

His execution was first reported by Alan Blinder of the New York Times. None of the media witnesses reported seeing anything unusual, other than a guard fainting. While an official initially told reporters that the execution took more than an hour, witnesses said later that it didn’t take nearly that long.

Georgia used to carry out lethal injections using a three-drug combination, but the state changed its execution protocol in July 2012. Now executions are carried out using only the drug pentobarbital, which had previously been one of the three drugs Georgia used in executions.
Pet tested, Vet approved, baby.

I suppose it's a brief but momentary victory for the pro-death penalty bloggers out there. Key word being "momentary."

BTW, if you read that blog, support for the death penalty, when given LWOP as an option, has been well below 50% for decades. It's nowhere near "60% for the fortieth straight year" or whatever drivel is noted there.

Cross Posted To: The Cranky Sociologists

Thursday, May 29, 2014

Intellectual Disability and the Death Penalty

SCOTUS Extends Curbs on Death Penalty and Retardation:

The Supreme Court on Tuesday continued a trend to limit capital punishment, ruling that Florida’s I.Q. score cutoff was too rigid to decide which mentally disabled individuals must be spared the death penalty.

“Florida seeks to execute a man because he scored a 71 instead of 70 on an I.Q. test,” Justice Anthony M. Kennedy wrote for the majority in a 5-to-4 decision.

Justice Kennedy was joined by the court’s four-member liberal wing, a recurring coalition in cases concerning harsh punishments.

When the court barred the execution of people with mental disabilities in 2002 in Atkins v. Virginia, it largely let the states determine who qualified. Tuesday’s decision, Justice Samuel A. Alito Jr. wrote for the four dissenters, represented a “sea change” in the court’s approach.

The ruling will affect not only Florida, which has the nation’s second-largest death row after California, but also as many as eight other states by Justice Kennedy’s count, including Alabama and Virginia. 
For students who may remember, this all goes back to Trop v. Dulles (1958), "evolving standards of decency," and counting states. The majority concluded that 41 states did not use IQ tests solely to determine whether an inmate should be executed. The dissenters concluded the majority was using fuzzy math (from Alito's dissent).
Attempting to circumvent these statistics, the Court includes in its count the 19 States that never impose the death penalty, but this maneuver cannot be justified. he fact that a State has abolished the death penalty says nothing about how that State would resolve the evidentiary problem of identifying defendants who are intellectually disabled.
This is the same debate they've had since Atkins in 2002, when Kennedy et al began to add non-death penalty states to states that had the death penalty but may have refused to apply it to certain categories of defendants (the intellectually disabled, juveniles, child rapists, etc.) to come up with "majorities" of states that have done away with certain kinds of punishments, thus indicating cruel and unusual.

Conservatives have long had a beef with the "Trop test," and the idea of a living Constitution, but Alito's dismissal of scientific evidence is more troubling.
I cannot follow the Court’s logic. Under our modern Eighth Amendment cases, what counts are our society’s standards—which is to say, the standards of the American people—not the standards of professional associations, which at best represent the views of a small professional elite.
Apparently, he's either ignoring or hasn't read the other parts of the Trop test, which clearly allow for scientific evidence to be taken into account when deciding whether a punishment is cruel and unusual (along with world opinion and action, anathema to conservatives). From Warren's opinion "the words of the 8th amendment are not precise and their scope not static."

I also find it troubling that Alito cites Penry v. Lynaugh (1989) over and over in his dissent, which was done away with in Atkins over 12 years ago. The regressive analysis suggests that "evolving standards of decency" stopped evolving back in the days when we were whacking juveniles and the mentally retarded in our society.

Anyway, it's been predicted since Atkins that the court would eventually have to come back and determine a more "bright line" for states to follow when it comes to executing the intellectually disabled, and that's precisely what the Hall decision of yesterday has done (from Kennedy's opinion):
No legitimate penological purpose is served by executing a person with intellectual disability. To do so contravenes the Eighth Amendment, for to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being. “[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana , 554 U. S. 407, 420 (2008). Rehabilitation, it is evident, is not an applicable rationale for the death penalty. As for deterrence, those with intellectual disability are, by reason of their condition, likely unable to make the calculated judgment s that are the premise for the deterrence rationale. They have a “diminished ability” to “process information, to learn from experience, to en­ gage in logical reasoning, or to control impulses . . . [which] make[s] it less likely that they can process the information of the possibility of execution as a penalty
and, as a result, control their conduct based upon that information.” Atkins , 536 U. S., at 320. Retributive val­ues are also ill-served by executing those with intellectual disability. The diminished capacity of the intellectually disabled lessens moral culpability and hence the retribu­tive value of the punishment. 

The professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range. See D. Wechsler, The Measurement of Adult Intel­ ligence 133 (3d ed. 1944) (reporting the range of error on an early IQ test). Each IQ test has a “standard error of measurement,” ibid. , often referred to by the abbreviation “SEM.”
Can I just pause, as a sociologist, to say how happy I am part of this debate centered on something as common (in my work) as standard error of measurement?

The majority goes on to make its case in a very scientific manner, and thus fulfills the Trop test regarding scientific and intellectual evidence of the constitutionality of a punishment.

But I'll let Kennedy's words summarize this issue for me:
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for  experimentation, but those experiments may not deny the basic dignity the Constitu­tion protects.
The case is Hall v. Florida (2014).

Cross posted to: The Cranky Sociologists