Abolition of the Death Penalty: The Time is Now

The Right Side of History -- Guest Post by Pat Ehlers

2011-06-10T11:11:00.000-07:00

Looking back today on black and white photos of the past we find ourselves ashamed of what we see. Everyone has seen these pictures. Bodies of men hanging from the ends of ropes. Sometimes as many as a half-dozen, or more, at a time. Dangling there, murdered, as a carnival of on lookers celebrates while enjoying a picnic during a sunny afternoon execution. That's shameful. So, we don't do it that way anymore.

Today, out of the public eye, at a time just after midnight, when most people are asleep, members of the strap down team make their way to the cell of the condemned. He's escorted to a gurney, told to lie down, and he complies. Restrained at his ankles, wrists and chest, he is readied for the needles. There are three. One for each of the poisons chemically designed to take his life. They're inserted into his veins. This doesn't always go well but it gets done. He's allowed a moment for a few last words, usually heard by a small group of witnesses, and then, on cue, anonymous volunteers, hidden behind a wall, and out of view, press plungers, shoving poisons down IV lines into veins. At first, nothing much seems to happen –– but then things change. The condemned appears to fall asleep, the chest rises, then falls heavily, then rises again. It sounds, sometimes, like deep snoring. Then that slowly subsides, and finally it ceases all together. There's silence. Six minutes from start to finish. I have sat late at night and watched this happen six different times to six different people I knew really well. I had spent years working with them.

The federal courts of Oklahoma appointed me to represent these men. Despite my best efforts, in these cases, I did not prevail. There wasn't one among those six men who had a life that was even close to normal. There wasn't one who hadn't suffered horrific abuse as a child. Some were mentally ill. Others were brain damaged. Overwhelming poverty, deprivation, neglect, and untreated addictions were constants in many of their lives. And, although each of them committed acts of horrible violence, there wasn't one execution I thought made sense.Why? Because for each case that ended in death, I knew there were many, many more that involved the exact same violence but a different punishment. A punishment equally effective, less costly, and far more humane – – life imprisonment. Most troubling, was that I could never explain to any of my condemned clients why they'd been selected for death when others had not. I never had an answer for that question. I still don't. But, here's what I do know, what we're doing today in Oregon with our death penalty just does not make sense. And, in standing up against the use of this penalty, I've got no shame at all, not a single reservation about what I'm doing, what we're doing. Why? Because we're right.We are on the right side of history. There is no debate about it.

There can't be. Without question, it is only a matter of time before Oregon will look back on its history, feeling a shame indistinguishable from looking at those old lynching photos, and ask ourselves why we didn't act sooner to eliminate the use of death as a punishment. Why we couldn't see that the midnight march of a strap down team and the use of IV lines, and poisons, wasn't one bit different than hanging people by a rope at a picnic. The time for change is now.Think about this. I told you I'm a lawyer. Let me share with you about something that happens in my world. Justices of the United States Supreme Court retire. After life long careers working with, and watching the results of, hundred and hundreds of cases, this is what some of them have said as they've stepped down from the bench: "From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored ... to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed." –- Justice Harry Blackmun near the end of his career in 1994. Expressing regrets about the death penalty in her retirement, Justice Sandra Day O'Connor stated in 2001 that: "Serious questions are being raised about whether the death penalty is being fairly administered in this country." "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Justices David Souter and Lewis Powell, too. joined a chorus of regret about the death penalty as they ended their careers. And, most recently, at the end of 30 years of judicial service, Justice John Paul Stevens reached the conclusion that, in his words: "[T]he imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
"A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment'". What are these justices really saying? They're saying that if they had it to do all over again, they'd do it differently. That after thinking about it for years and years, they realized, after it was all over, that the death penalty just doesn't work. Unfortunately, Supreme Court Justices don't get "do overs." They get one career and then they step down. And these insights they have, unfortunately, came too late.

In life, "do overs" don't come along often. In fact, they're exceedingly rare. But, we've got someone in Oregon who has precisely that opportunity. He gets a "do over."

My hope, our hope collectively, is that he uses it well. John Kitzhaber is our governor again. And, he has the absolute power to commute the sentence of Gary Haugen, stop his volunteer execution, and start the process of changing Oregon's history. The governor can choose to step to the right side of history, as other governor have done, and say to the people of Oregon, we can be, we must be, better than we have been. He can say that Oregon's death penalty does not make sense. He would be right about that. He can say that life imprisonment is enough, that it works, that it keeps people safe. He'd be right about that, too. He would have to say, that yes, cases like the Haugen case sometimes happen but they can be avoided and they are extremely rare. He can say that life imprisonment is less costly. He would certainly be right about that. He could tell the people of Oregon that as we face this coming "decade of deficits" that we can help ourselves by eliminating our wasteful, shameful death penalty. He could tell the people of Oregon that over the next decade we'll expend more than $170 million dollars on the death penalty. If he told the people of Oregon that, he'd be conservative in his estimate. And, if Governor Kitzhaber told the people of Oregon these things, wouldn't they listen? Coming from a position of leadership, sending this message from the top, that would cause people to pay attention. And, when they paid that attention, it would be hard for people to justify using millions upon millions of dollars for our death penalty. For all the millions that have been spent, and will continue to be spent if we don't change, what do we have to show for it all? In 49 years, two frustrated people opted out of their appeals, and out of their lives, because our misguided death penalty provided the option. That's what we have to show for all those millions. And, when people here in Oregon really thought about it, really discussed it, considered the issue in depth, wouldn't they conclude that we are better than our history. That we can and should change. That we are a progressive caring state, and that while we so often lead in what is right, and what is good here, that we have failed up until now to take the right course.

With our help, and with the help of our Governor, and his "do over" opportunity, I know we can get this right the second time.

Pat Ehlers is a capital defense attorney in Oregon and a member of the Advisory Board for Oregonians for Alternatives to the DeathPenalty. He presented this speech at an OADP event.

On the Right and Wrong Sides of History

2011-03-09T10:59:00.000-08:00

Today, Gov. Quinn signed legislation abolishing the death penalty in Illinois. He also commuted the current death sentences to life without release.

Today, Illinois joins fifteen other states on the right side of history.

Today, thirty-four states, plus the federal government remain on the wrong side of history.

Over the next decade, the number of states which have abolished the death penalty will grow and grow until we finally end this experiment with the death penalty in this Nation.

Our current situation reminds me of those juveniles who were executed only months before the United States Supreme Court ended that practice as fundamentally inconsistent with our standards of decency. Those who watch history knew that a national ban on the execution of juveniles was coming. The only question was who and how many would be killed before the ban was erected.

On May 28, 2002, Napoleon Beazley, who was 17 when he committed the murder that led to his death sentence, was executed. He had asked the US Supreme Court to block his execution because he was a juvenile. He asked too soon. Only months later, the Missouri Supreme Court held that the execution of juveniles was unconstitutional. That case then went to the US Supreme Court, which agreed in its opinion issued in early 2005. Nothing had changed between Beazley's execution in 2002 and the US Supreme Court's decision in 2005, legally speaking. Put another way, it was clear by May 28, 2002, that the prohibition against killing juveniles would be put in place very soon. It was only a matter of time. It was only a question of when.

Napoleon Beazley knew it, too. He told me so.

However, between Mr. Beazley's execution and the constitutional ban in 2005, three more juveniles were executed.

We are in the same place today with regard to the death penalty in this country. It will be abolished nationwide soon. The only question is: How many more people will be executed between now and then?

We should not wait to place ourselves on the right side of history. Instead, the actions in Illinois today must compel the remaining states to join the abolitionist states on the right side of history and to do so now.

A Murder in the Cold, Dark Night

2010-09-10T06:35:00.000-07:00

May the family and friends of Holly Washa be blessed as they move forward in their lives. They suffered needlessly as a result of Mr. Brown's murder of a beautiful, young woman. Our community must reach out and embrace them. And, we must remember and celebrate Holly's life and goodness.

However, we can no longer promise the family of a murder victim the life of the killer in return.

Today, the State of Washington rejoins China and Iran, Texas and North Carolina, as jurisdictions that violate human rights and international norms of decency.

Today, the State of Washington killed a mentally disordered man after misleading his jury that he was not afflicted with a mental disease.

Tomorrow, we will not wake up any safer. Tomorrow, we will not know a more perfect justice. Tomorrow, we will not have taken steps to prevent the next murder.

We will, however, know the name of the last person killed before Washington ended its experiment with the death penalty; when we recognized that our standards of decency had evolved so that we could no longer permit state-sanctioned killing--killing another to prove that killing is wrong. We will then look back and wonder why we felt we needed to kill Cal Coburn Brown--what justification existed--just as we look back now and wonder why we executed juveniles and the intellectually disabled in this Nation only a few, short years ago.

Time to Get Smart on Crime

2010-01-20T20:31:00.000-08:00

We all want to live in safe communities. The truth about the death penalty is that is makes us less, not more, safe. Given the severe budget restraints that exist in our criminal justice system, it is high time to consider whether maintaining our costly and largely symbolic death penalty system is being smart on crime.

We are in a recession. The criminal justice system is hardly immune from the downturn in our economy. Police departments are cutting back, state employees are being furloughed, trials are being delayed, and layoffs are common in prosecutors’ and public defenders’ offices. The justice system was already overburdened—now it is being pushed to (and some would argue, past) the breaking point. The death penalty in this state is an enormously expensive and wasteful program with no clear benefits. All of the studies on the cost of capital punishment conclude it is much more expensive than a system with life sentences as the maximum penalty. Perhaps most importantly, the death penalty rarely results in what it promises.

In this state, only slightly more than 1% of the eligible cases results in an execution. Stated in the converse, we spend millions and millions of taxpayer dollars on a system that fails 99% of the time. We can no longer tolerate such wasteful spending. The death penalty without executions is a very expensive form of life without parole. We could redirect millions of taxpayers’ dollars every year to community safety and services for victims and still lock up murderers until their death if we ended the death penalty.

Over the last decade, opposition to the death penalty on practical grounds has grown rapidly. This Nation’s police chiefs rank the death penalty last in their priorities for effective crime reduction. The officers rate it as one of most inefficient uses of taxpayer dollars in fighting crime. Instead, lack of law enforcement resources, poor funding for drug and mental illness treatment, and crowded courts were listed as the problems that most need fixing. Sadly, these problems need fixing here, as recent events have vividly demonstrated.

Clearly, eliminating the death penalty cannot solve all of these problems, but the savings would be significant. Where comprehensive studies have been done, the excess expenditures per year for the death penalty typically are close to $10 million per state. If a new police officer (or teacher, or ambulance driver) is paid $40,000 per year, this death penalty money could be used to fund 250 additional workers in each state to secure a better community.

In 2009, eleven state legislatures considered bills to end capital punishment and its high costs were part of these debates. As the economic crisis continues, the trend of states reexamining the death penalty in light of its costs is expected to continue. It is time for Washington to join this growing list.

Lost Opportunity Costs

2010-01-17T10:32:00.000-08:00

Recently, a prosecutor explained his practical opposition to the death penalty: "I can successfully prosecute 10 murders or 30 sexual abuse cases in the time that it will take to do one death penalty case. Then, even if I get a death sentence, it will likely be overturned somewhere down the line. I'd rather give murder victims families closure now--get a conviction, put the guy in prison for life, forget about him, and let's help the victims rebuild their lives."

In short, the death penalty is costly, comes with a high reversal rate, and results in lost opportunities to provide real community safety and more community support for victims.

In the wake of the murders of four polcie officers by Maurice Clemmons, the Governor and various state legislators have called for a variety of criminal justice reforms. Those reforms will cost money and may not get put in place simply because of budget concerns. That would be a shame. Why not take money from the administration of the death penatly and fund those reforms? We are throwing away good money chasing something that we don't get and meanwhile lose the opportunity to do things that will work.

Rather than spend millions seeking a death sentence for the person who shot Officer Tim Brenton, why not take the money and put five new officers on the street?

Gov. Gregoire has a great idea--we should guarantee a fully paid college education for the children of the fallen officers. I agree. Let's get rid of the death penalty and instead of paying for decades of lawyers for killers, let's pay for four years of college education.

The death penalty is costly, both in terms of dollars and in lost opportunity costs. Those costs will not go away. Those costs are a required part of the administration of the death penalty--any judge, police officer or prosecutor will tell you that.

If we abolish the death penalty, we can save millions. We can also make our community safer, while providing services to victims.

Our criminal justice system, which is critically underfunded, is not working the way it should. On that point, we can all agree.

If we elimate the gallows, we will still sentence killers to die in prison--when their time is up. The difference will be instead of spending millions on the small chance that we'll execute one guy every decade or so, we can start making real reforms that can, at their best, prevent the next murderer from roaming free.

Abolition in Washington State...

2010-01-14T20:50:00.001-08:00

....begins on Friday, January 22, at 1:30, when there's a hearing in Olympia, WA before the Senate Judiciary Comm. More details to follow.

Voices of Abolition ~ Billy Bragg

2010-01-13T20:53:00.000-08:00

Voices of Abolition ~ Meredith Rountree

2010-01-13T20:19:00.000-08:00

Voices of Abolition ~ Rob Owen

2010-01-13T19:43:00.000-08:00

Accomplishing Abolition in Washington

2009-12-14T15:11:00.000-08:00

On Jaunary 9, 2010, beginning at 9:30 am at Seattle University Law School, the Coalition will host a workshop/event entitled: Accomplishing Abolition in Washington. Please save the date. More details to follow...........

A tribute to those who served us

2009-12-01T09:06:00.000-08:00

Those of us who support abolition, do so because we want to live in safe communities.

Every day, brave men and women serving as police officers put their lives on the line to keep our communities safe.

Last weekend, four died serving us.

If you can, please make a donation in their memory at :

http://lpig.us/index.cfm

The Death Penalty and War Veterans

2009-09-24T19:37:00.000-07:00

Let me start with an old, but still relevant news account from the funeral of Manny Babbitt:

Manny Babbitt, the 50-year-old Wareham native, executed a week ago for the 1980 murder of an elderly Sacramento woman, was buried yesterday with military honors, including a flag-draped casket, a rifle salute and bugler playing "Taps." Nestled atop a grassy knoll and sandwiched between blossoming fruit trees and evergreens, Mr. Babbitt's final resting place is an oasis of tranquillity compared to the chaos of his tortured life. Mr. Babbitt was convicted of assaulting and killing Leah Schendel, a diminutive, 78-year-old Romanian grandmother whose South Sacramento apartment he broke into on the night of Dec. 18, 1980. A jury two years later sentenced him to death. Seeking a sense of closure on Mr. Babbitt's life, more than 300 people gathered yesterday for a memorial at St. Patrick's Catholic Church. It was followed by a graveside ceremony that included full military honors for the decorated Vietnam veteran.

Washington has at least two men on death row who served their country in violent conflicts.

More to follow.....

An account of the failed execution of Broom

2009-09-24T10:11:00.000-07:00

For more than two hours, the team attempted to insert two shunts into a vein of the compliant Broom, who tried several times to assist his executioners by shifting positions, rubbing his arm and pointing out possible usable veins. * * *
At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles.
A reprieve at this stage of an execution has never happened since the death penalty was reinstated in 1999, said Terry Collins, director of the Ohio Department of Rehabilitation and Correction. He said he called the governor and asked for the reprieve after it became clear the execution team was having trouble. "I could tell my team was becoming somewhat frustrated," Collins said. The reprieve extended only until Sept. 22 [until a federal judge granted a stay of execution to stop the expiration of the reprieve and prevent the execution from happening during the pendency of the court proceeding].
The drama played out before the family of Tryna Middleton . . . Tryna's mother and father, Bessye and David Middleton, were there to witness the execution, as was an aunt. They sat in front of a glass window through which they were expecting to see Broom die.
Instead, he never made it out of his nearby cell, where two shunts were to be installed in veins. The shunts allow three drugs to enter the veins and sedate, paralyze and kill the inmate. The family and others watched the preparation on closed-circuit monitors mounted in the witness area. A camera filmed Broom and captured much of the difficulty the execution team had, as well as Broom's frustration. Broom requested no witnesses initially, but about an hour into the process asked for his attorney, Adele Shank, to be present.
A visibly upset Shank appeared in the witness room not knowing of Broom's request but out of concern for the length of time for the execution. "The chief justice and the governor have been notified of what's going on," Shank said after the execution team spent 90 minutes trying to insert the shunts.
Collins said the execution team was able to access several veins but they collapsed once saline solution was administered. He defended the execution team and said: "They continued to do a job that most wouldn't do or couldn't do." . . .
Shank, Broom's lawyer, said she is considering additional appeals. "We don't want to see a repeat of this ever," she said.

It Can Happen Here, Too.

2009-09-23T12:03:00.000-07:00

Many of you may have heard that the execution of Romell Broom, 53, in Ohio was postponed after technicians tried and failed for more than two hours to maintain an IV connection in order to inject him with lethal drugs.

Ohio wants to try to kill Mr. Broom, again. Further, they do not want to examine the process.

That does not mean there will be a review of the larger issue of lethal injections," a state official said last Wednesday. "That's been settled. Obviously yesterday demonstrated that we have a problem with this particular set of circumstances."

What the Ohio officials fail to recognize is that "this particular set of circumstances," is not something limited to one person. Instead, "this particular set of circumstances" is the act of killing another human being. This is only the last botched attempted execution if it is the last attempted execution.

It can happen here, too. In fact, it will unless we get out of the business of killing fellow humans.

http://www.nowpublic.com/world/romell-broom-execution-hold-over-unsuitable-veins

Executing the Severely Mentally Ill

2009-07-19T21:14:00.000-07:00

Isn't it high time to have a thoughtful discussion on this issue, especially considering the fact that we have two men facing execution dates in this State in the near future?

Over the next few months this blog will focus on the sad intersection where the punishment we tell ourselves is reserved for the worst of the worst meets up with those among us who are least able to understand and control their actions.

Death Penalty and Mental Illness: Double Tragedies

2009-07-17T12:21:00.000-07:00

For the first time, families of murder victims have joined with families of persons with mental illness who have been executed to speak out against the death penalty.
Double Tragedies, a report released on July 6th at a special session on the first day of the annual convention of the National Alliance on Mental Illness (NAMI), calls the death penalty "inappropriate and unwarranted" for people with severe mental disorders and "a distraction from problems within the mental health system that contributed or even directly lead to tragic violence."

The report calls for treatment and prevention, not execution. It is available online at www.nami.org/doubletragedies.

The report, a joint project of NAMI and Murder Victims' Families for Human Rights (MVFHR), is based on extensive interviews with 21 family members from 10 states: California, Florida, Georgia, Illinois, Louisiana, Maine, Massachusetts, North Carolina, Tennessee and Texas.
"Family opposition to the death penalty is grounded in personal tragedy," said MVFHR executive director Renny Cushing. "In the public debate about the death penalty and how to respond in the aftermath of violent crime, these are the voices that need to be heard."
"Most people with mental illness are not violent," said NAMI executive director Mike Fitzpatrick. "When violent tragedies occur they are exceptional, because something has gone terribly wrong, usually in the mental health care system. Tragedies are compounded and all our families suffer."

The report identifies an "intersection" of family concerns and makes four basic recommendations:

Ban the death penalty for people with severe mental illnesses.

Reform the mental health care system to focus on treatment.

Recognize the needs of families of murder victims through rights to information and participation in criminal or mental health proceedings.

Families of executed persons also should be recognized as victims and given the assistance due to any victims of traumatic loss.

At least 100 people with mental illness have been put to death in the United States and hundreds more are awaiting execution.
Other resources:
www.mvfhr.org
www.nami.org/grades09

The National Alliance on Mental Illness, www.nami.org, is the nation's largest grassroots mental health organization dedicated to improving the lives of individuals and families affected by mental illness.

A dispassionate, impartial review....

2009-04-16T10:09:00.000-07:00

Judge Boyce Martin, the former Chief Judge of the Sixth Circuit, notes in concurrence today in Wiles v. Bagley, No. 05-371, his continued concern about capital punishment as a public policy issue, especially in lean economic times:

Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

Add New Mexico to the list...

2009-03-18T17:20:00.000-07:00

...of states that have abolished the death penalty. More to follow.

Report from Clemency Hearing

2008-12-01T19:56:00.000-08:00

The case of condemned killer Darold Stenson is under consideration in two courts. Now a third venue is reviewing his case.
Washington State’s Clemency and Pardons Board took testimony Monday on Stenson who is scheduled to die Wednesday night in Walla Walla. But the execution won’t go forward unless two court stays are lifted.
Jeff Ellis is with the Washington Coalition to Abolish the Death Penalty. He told the Clemency Board that Washington is acting like Texas in its push to execute Stenson before all DNA evidence has been tested.
Jeff Ellis: “I was comfortable in the belief that we did things differently here than in Texas. Five days ago that belief was shattered. The state seeks to kill Darold Stenson without testing DNA.”
Prosecutors responded that DNA testing previously showed that blood on Stenson’s pants belonged to one of the two victims he was convicted of murdering in 1993.
The Clemency Board delayed making a recommendation to the Governor pending the outcome of the two court cases

The Stay Remains! Execution Averted...for now.

2008-12-01T16:31:00.000-08:00

Clemency Hrg 12/1 at 9 am?

2008-11-30T21:09:00.001-08:00

A hrg has been set for 12/1, despite the two stays and an order directing the conduct of DNA tests. Watch for more here tomorrow.

Two stays of execution

2008-11-25T14:48:00.001-08:00

Two judges have issued two separate stays of execution for Darold Ray Stenson, who was scheduled to be executed next week.
A judge in Clallam County granted the stay and ordered additional DNA testing in the case after a prison inmate came forward with new information indicating that Stenson may have been framed for the 1993 shooting deaths of his wife and a business partner.
Clallam County Prosecutor Deborah Kelly said she intends to appeal the judge's ruling, perhaps as early as today.
At the same time, a federal judge in Yakima has indefinitely delayed the execution during a conference call today with lawyers.
Assistant Attorney General Sara Olson, who is one of the attorneys handling the case for the state, said her office is filing an emergency motion asking an appeals court to vacate Suko's decision. Stenson, 55, was set to be executed Dec. 3.
Stenson was sentencing to death for killing his wife Denise and his business partner Frank Hoerner on March 25, 1993. Authorities say that Stenson staged the slaying inside his Sequim-area ranch to look like a murder- suicide so he could collect a $400,000 life insurance policy that he took out for his wife. Prosecutors say he killed Hoerner because he owed him $50,000.
Stenson's three young children — ages 6, 4 and 1 — were asleep in the house when their mother and Hoerner were slain.
He was convicted of aggravated murder deaths of his wife and a business partner while his three young children slept nearby in his Clallam County farmhouse.
Stenson would be the first inmate put to death since 2001 if none of his pending appeals is granted.
Seattle Times staff reporter Jennifer Sullivan and The Associated Press contributed to this report
Copyright © 2008 The Seattle Times Company

Not in Our Names--the People's Request for Clemency

2008-11-25T11:30:00.000-08:00

On November 23, 2008, the Coalition filed a formal request to either commute Darold Stenson's death sentence to life in prison or to issue a stay of execution and commission a study of Washington's death penalty system. We filed this request on behalf of all of the citizens of this state who do not want Mr. Stenson executed in our names. We did so, in part, because Mr. Stenson does not intend to seek clemency for himself and because it is our right and duty to speak out.

Here is a brief excerpt:

It is a new day in America and in the State of Washington. It is a day full of promise and hope. However, we are about to begin this new day with a very old ritual. We are about to begin this new day by killing a fellow human being—an act taken by our government in the names of all its citizens. We are about to begin this new day with the contradictory ritual of taking a life to prove that taking a life is wrong.
The signer of this petition, and those who write separately in support, are citizens of this state. Darold Stenson is about to be executed in our names. In the great and enduring spirit of democracy, we object. We do not consent to the execution of Darold Stenson in our names.
If the promise made by government to its citizens is that the death penalty is reserved for the worst of the worst, then this execution makes no sense. While Mr. Stenson was convicted of two senseless and tragic killings, these murders are clearly not the most deserving of death, especially when compared to the numerous murders committed over last decade. And, neither is Mr. Stenson.
Mr. Stenson’s imminent execution may prove that death sentences in this state are carried out for those with the worst attorney (Mr. Stenson’s trial lawyer stated he could not stand the “sight” of Mr. Stenson, but was nevertheless permitted to control the defense of Mr. Stenson’s life). However, that distinction is not supposed to exist.
Instead, Mr. Stenson’s imminent execution reveals the arbitrary nature of Washington’s death penalty as it exists in practice. No one could possibly explain to Mr. Stenson why he is deserving of death when Gary Ridgway, Benjamin Ng and Kwan Fai (“Willie”) Mak were not. The only possible explanation is one that condemns the death penalty: that the death penalty is as random as being struck by lightning.
Let us begin this new day by affirming life, not death. We ask you to commute Darold Stenson’s death sentence to life in prison without parole. If you are unsure about what action to take, we urge you to stay Mr. Stenson’s execution and commission a study of Washington’s death penalty law.
We urge you to begin this new day, not with an old relic of our less civilized past, but with a call to a higher sense of justice.
In this state, we recognize that the moral arc of the universe is long, but that it bends toward justice, as Marlin Luther King taught us.
The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one – no matter where he lives or what he does – can be certain who will suffer next from some senseless act of bloodshed. It is imperative that we remember and honor their lives.
However, we do not honor the victims of violence so by arbitrarily executing someone once every five or ten years. Just as importantly, we do not progress as a society by killing to prove killing is wrong. We do not look upon Darold Stenson as alien, someone unknown to us or who must be removed from the family of men and women. We look upon him as a brother—someone who must be punished, as part of the social compact.
However, we seek a higher justice within that social compact. We seek to honor humanity by seeking solutions, rather than more suffering, bloodshed, and loss. Our lives on this planet are too short and our work too great to let stand the distinctions that serve only to degrade and divide us. We urge you to stop Darold Stenson’s execution.
Either commuting Darold Stenson’s death sentence to life without parole or undertaking a comprehensive review at this late date does not undermine the rule of law. Instead, it honors the genius that underpins the separation of powers and our American system of justice.

Support for Clemency

2008-11-25T11:28:00.000-08:00

From the Seattle Times ~
The state's Roman Catholic bishops are asking Gov. Chris Gregoire to commute the death sentence of Darold Ray Stenson.
The three bishops, representing Catholic dioceses in Seattle, Spokane and Yakima, are asking that Stenson instead receive life imprisonment without the possibility of parole.
Stenson, 55, is set to be executed Dec. 3. He was convicted of aggravated murder for the 1993 shooting deaths of his wife and a business partner while his three young children slept nearby in his Clallam County farmhouse.
Seattle Archbishop Alex Brunett, Spokane Bishop William Skylstad, and Yakima Bishop Carlos Sevilla made the request in a letter to Gregoire on Friday. Gregoire's spokesman, Pearse Edwards, said Monday the governor was reserving comment until she reviews the letter.
The bishops wrote that while they understand the responsibility of the state to punish Stenson, "there remains no moral justification for imposing a sentence of death."
"Violence begets violence both in our hearts and in our actions," they wrote. "By continuing the tradition of responding to killing with state-sanctioned killing, we rob ourselves of moral consistency and perpetuate that which we seek to sanction."
Stenson would be the first inmate put to death since 2001 if none of his pending appeals is granted.
Stenson has long claimed he didn't commit the murders, and is one of just two inmates in recent years to continue to appeal his death sentence.
When Stenson called authorities in 1993 to report the deaths, he suggested that his business partner, Frank Hoerner, had killed Denise Stenson and then shot himself in another room. Prosecutors have said Stenson, struggling financially and in dire business straits, shot the two in order to collect $400,000 in life insurance.
A federal appeals court lifted a stay last month, and prison officials are preparing for the execution to go forward as scheduled. Several walkthroughs have already been conducted, with another still to come this week.
Because he declined to choose between lethal injection and hanging, Stenson would be killed by lethal injection if the execution goes forward as planned.
Since 1904, 77 men have been executed in Washington, the last being James Elledge in August 2001. No woman has ever been sentenced to death in the state.
Copyright © 2008 The Seattle Times Company

Not in my name--Opposing Darold Stenson's execution

2008-11-10T17:14:00.000-08:00

From Murder Victims' Families for Reconciliation amicus brief:

MVFR opposes the death penalty because of its corrosive effect on the families of the victims of homicides that result in capital prosecutions. We believe this effect has been particularly pronounced in Washington. While arbitrariness may not be the sole reason for this corrosive effect, it is a primary cause.
For the murder victims’ family members, the death penalty establishes a hierarchy of victims where some lives are valued more than others. It turns family members against each other. It creates a class of “good” or “deserving” victims and “bad” or “undeserving” victims.
While the survivors of the victims of one notorious murderer in Washington have seen him go to his death involuntarily, and in three other instances victims’ families have watched their loved ones’ murderers fulfill death wishes by judicially approved suicide, dozens of families have been dragged through the ordeal of capital litigation only to see, after years or decades, the process end with a prison sentence that would have seemed just at the beginning but often feels markedly unjust by the end.[1]
More than fourteen years have passed since the last involuntary execution in this state. In fact, only two such executions have occurred in almost 50 years. In addition, the rate of death sentencing in the state has markedly declined. No one new has been sentenced to death in Washington for over six years—the last person was Robert Yates on October 3, 2002. The only other residents of death row sentenced since 1998 are Dayva Cross and Cecil Davis, who was resentenced to death in May 2007, for a January, 1997, crime.
From the perspective of the friends and family of victims of murder, it is impossible to make any sense of the outcome of the capital punishment system in this state. This arbitrariness does not serve, but rather harms victims. The arbitrariness that infects our capital punishment system naturally invites a comparison of a victim’s moral and familial worthiness—where the loss of some life is inevitably seen as more valuable than the loss of other life. It is elemental that our system of justice should not tolerate such distinctions.
Considering this inexplicable randomness in our current system of capital punishment, it could legitimately be likened to a lottery where only the exceptionally unlucky few draw the losing number. See Martin, Earl; Tessie Hutchinson and the American System of Capital Punishment; 59 Md. L. Rev, 553 (2000) (comparing our current capital punishment system to the arbitrary stoning of a random villager every June 27th, as described in Shirley Jackson’s harrowing short story, The Lottery). Indeed, once the full scope of the dysfunction within the system is acknowledged, it becomes very difficult to say that the random selection of defendants for the death penalty would be any different from how our criminal justice system currently decides the fate of capital defendants. Borrowing once again from Justice Stewart, the process by which we select the condemned has the same sense of justice as that exhibited by a stroke of lightning.
[1] Only one prisoner has been put to death involuntarily in Washington since 1964: Charles Rodman Campbell. Three others (Westley Dodd, Jamie Segastagui and James Elledge) have had requests to be executed granted. During this same time, 295 aggravated murder reports have been filed. 8,298 victims have been murdered in Washington between 1964 and 2007. (See Washington Crime Rates 1960-2007, “Washington Enforcement Agency Uniform Crime Reports 1980-2005” (www.disastercenter.com/crime/wacrime.htm) (last visited on November 3, 2008)).

Darold Stenson scheduled to be executed on 12/3

2008-11-06T16:34:00.000-08:00

Not in our names. Help us stop this state sponsored murder!

The state Department of Corrections will execute a Clallam County man Dec. 3 at the Washington State Penitentiary in Walla Walla, according to corrections officials. It would mark the first execution in the state since 2001.

Darold Ray Stenson, 55, convicted of two counts of aggravated first-degree murder in 1994 for the shooting deaths of his wife, Denise Ann Stenson, and business partner, Frank Clement Hoerner, lost what looks to be his final stay of execution from the federal Ninth Circuit Court of Appeals, corrections officials said.

WCADP will post more info here over the days.

Supreme Court review

2008-07-13T12:21:00.000-07:00

In mid-June, the Supreme Court of the United States completed its October 2007 Term. There were three cases decided this term that are particular interest to abolitionists. Ultimately, the Term was a mixed bag, with one bitter disappointment, but also marked by two cases that give us reason to hope.

The bad news: The national moritorium that followed the cert grant in Baze, the case challenging the constitutionality of lethal injection protocols, was abruptly ended when the Court held that the method of lethal injection at issue in the case did not present a sufficient risk of pain and suffering. Some states are still involved in contests about their particular methods of killing, but for those of us who saw this case as a possible vehicle for complete abolition, we must chalk this up as another missed opportunity.

The good news: The Court cited to the "evolving standards of decency" that govern a maturing society and struck down Louisiana's death penalty for the crime of child rape. Thus, we can add that case, Kennedy, to the list of absolute prohibitions to the death penalty which includes: those convicted of rape of an adult, offenders who are mentally retarded, and children.

The hopeful news: Snyder’s trial—before an all-white jury in Jefferson Parish, Louisiana—occurred less than a year after O.J. Simpson was acquitted of murder. Despite assuring the trial judge that he would not refer to Simpson before the jury, the prosecutor compared Snyder’s conduct to that of the defendant in "[t]he most famous murder case" that all the jurors "have heard about," noting that the"perpetrator" in that case"got away with it."

At Snyder’s jury selection, lawyers questioned 85 potential jurors. In a jurisdiction that is 20 percent African American, only nine potential jurors were African American. Four were dismissed for cause and the prosecutor used his peremptory challenges to strike the rest, forming the basis of Snyder’s appeal. The Louisiana Supreme Court upheld Snyder’s conviction against a claim that the prosecutor had exercised his challenges in a discriminatory manner—violating Batson v. Kentucky, which prohibits race discrimination in the selection of trial juries.

Batson instead is based the broad principle, that striking jurors based on race deprives not only defendants but also those jurors of a fair, nondiscriminatory jury system. Snyder will hopefully provide lower courts with the courage to enforce fairness. Protecting capital defendants protects us all.

Race and the Death Penalty ~ March 1

2008-02-25T20:06:00.001-08:00

Modern Lynching ~ Race and the Death Penalty

2008-02-10T20:00:00.000-08:00

On March 1st, beginning at 7 pm at the Langston Hughes Performing Arts Center in Seattle, we will present an evening of stories and songs designed to educate and inspire us in our efforts to achieve racial justice and abolish the death penalty.

The history of the death penalty in this country and this state is intertwined with our unfortunate history of racism. It is our humble hope that by exploring this history, we can inform and inspire our community to re-double our efforts to achieve racial justice and end state sanctioned killing.

The evening will present renowned musical talent as well some of this nation’s leading scholars on the persistent role that race plays in deciding who lives and who dies .

One of the highlights of the evening will certainly be Christina Swarns of the NAACP Criminal Defense Fund. Ms. Swarns has defended numerous death row inmates including the successful DNA exoneration of Nicholas Yarris, on death row for 21 years. She also argued on appeal that race discrimination infected the trial of Mumia Abu-Jamal. Joining Ms. Swarns will be Jeffrey Robinson, this State’s finest criminal defense lawyer, who will detail how a local prosecutor secured a death sentence for Jonathan Gentry, an African-American man prosecuted in Kitsap County, by appealing to the racial fears of his all-white jury.

We are also excited to present the musical talent of Jared Clifton, lead singer of the Radio Nationals, singer/songwriter Carla Torgeson from the Walkabouts, the Immaculate Conception Gospel Choir, as well as a few surprises!There is a suggested donation of $25. To secure a ticket you can call 206/622-8952. Tickets will also be sold at the door on the night of the event.

It Can Happen Here, Too.

2007-12-18T17:23:00.000-08:00

New Jersey Abolishes the Death Penalty!!!

In an extended and often passionate speech from his office at the state capitol, NJ Governor Corzine declared an end to what he called “state-endorsed killing,” and said that New Jersey could serve as a model for other states.

“Today New Jersey is truly evolving,” he said. “I believe society first must determine if its endorsement of violence begets violence, and if violence undermines our commitment to the sanctity of life. To these questions, I answer yes.”

What We Can Learn from the National Moratorium

2007-10-30T13:26:00.000-07:00

John Holdridge, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION'S CAPITAL PUNISHMENT PROJECT

Executions in the United States have essentially been put on hold in the aftermath of the Supreme Court's announcement in late September that it would decide the constitutionality of the lethal injection protocol used by almost all death-penalty states. With Texas leading the way, there is a good chance that few if any executions will take place until the Court issues a decision next spring.

This historic suspension of capital punishment across the nation presents a unique opportunity to ask ourselves a few simple questions: Why does this matter? What does this de facto moratorium mean for our society? And what is wrong with the nation's most severe sanction?
For starters, the moratorium means that, for the time being, we can rest assured knowing that no innocent people will be executed by our government; It means that, between now and next spring, the U.S. will at long last be sending the right message to the world – that cool, deliberate and lethal violence cannot be justified and that the condemned are human beings capable of reformation.

Finally, the moratorium offers some simple truths that illustrate why the government must not have the power to decide who lives and who dies:
We do not need the death penalty to keep us safe. The inmates whose lives are now at least temporarily spared do not pose any danger to society - they will remain in prison, many in solitary confinement. Furthermore, the moratorium will not increase the murder rate based on credible studies showing the death penalty has no deterrent effect. That's why a 1995 survey of U.S. police chiefs found that a majority does not believe that the death penalty is an effective law enforcement tool.

We don't need capital punishment to exact retribution against offenders. Life imprisonment without the possibility of release is clearly retributive. More than half the countries in the world have abolished the death penalty in law or practice; 12 states in the U.S. do not have capital punishment; and more than two-thirds of the counties in U.S. have never returned a death sentence. The people living in these places have accepted that life imprisonment constitutes sufficient retribution.

Capital punishment is an extraordinary waste of taxpayer dollars. An act of state-sanctioned killing costs far more than life without the possibility of parole. And that is true even though society is getting the death penalty on the cheap as a result of woefully underfunded public defender programs in almost all death-penalty states. Tragically, the death penalty is often imposed not on the worst defendants, but on the defendants with the worst lawyers.
Capital punishment is a failed government program and a colossal stain on our criminal justice system. The administration of capital punishment in this country is fraught with error. Since 1973, more than 123 innocent death-row inmates have been exonerated; in addition, eight men have been executed even though there is a very good chance they were innocent. Moreover, despite popular myths, DNA testing cannot ensure that only the guilty are executed because DNA evidence is available in only 10 percent of murder cases.

The death penalty is arbitrary and capricious. Receiving a death sentence is like being struck by lightning - only 2% of all murders are punished with the death penalty, even in death-penalty states. Furthermore, the use of capital punishment is tainted by racial, economic and geographic discrimination. In general, a defendant is four and a half times more likely to get the death penalty if he kills a white person than if he kills a black person. And virtually everyone on death row is poor.

The current de facto moratorium on the death penalty presents a rare opportunity to reflect on why we remain the only advanced Western democracy to retain this punishment. If we seize this moment, we will reach only one conclusion: there is no good reason to have capital punishment and many good reasons not to.

Good Enough for Govt Work--Even if a Life is at Stake

2007-10-28T11:45:00.000-07:00

There are many reasons to be disappointed by the Washington Supreme Court's opinion affirming Robert Yates' death sentence. After a 5-4 split in Cross where the four justices described Washington's death penalty scheme as broken and beyond repair, in Yates all but one justice somehow found that the death penalty was now working properly. I defy anyone to show me where, when, and how the machinery of death was fixed.

Just as disappointing was the court's discussion about the database used in conducting proportionality review. This database consists of reports--required in every aggravated murder conviction, whether or not death is sought or imposed--designed to enable the court to compare both the crime and the mitigation. Yates argued that the database was insufficient and incomplete, something you'd think a Supreme Court justice would care about--given that a life is at stake.

Here's how the Court summarized the issue: Finally, Yates argues that this court cannot meaningfully engage in the proportionality review mandated in RCW 10.95.130(2)(b) because of the incompleteness and inaccuracy of the trial judge reports. In Yates's view, the defects in the set of reports result in a violation of his due process rights under the Fourteenth Amendment. This argument was punctured in this court's Cross opinion. There, describing the trial judge reports database as "now overwhelmingly complete," the court rejected the claim that the state of the database precluded meaningful proportionality review: "There is an ample amount of detail we can use to compare this case with the others collected, and we have no reason to think that the omitted reports would not be consistent with the completed ones."

The Court's stamp of approval is stunning. Certainly, the Court would be correct if proportionality review focused only on the crime. The reports do describe the crimes of conviction with detail.

However, there is virtually no information about the person--the other half of the equation--in any of the reports. Most reports just leave those sections blank. In other words, we don't know in those other cases if the mitigation that made the difference between life and death was mental illness, childhood trauma, the use of drugs, a desire to plead guilty, or any other factor.

What's going on here? Nationally, two mitigating factors--juvenile status and mental retardation--are now complete bars to the death penalty as part of the 8th Amendment's evolving standards of decency review. The United States Supreme Court reviewed the history of how legislatures, prosecutors, and juries viewed this type of information and determined it was cruel and unusual to execute anyone in either of these two categories--regardless of the facts of the crime.

Doesn't the Washington Supreme Court want to know what prosecutors and jury's in this state view as mitigating? What are they afraid of finding out? Or, is the court saying that it would be too hard to compile this information--as long as the report has some information in it, the report is good enough for government work. That position fails us all.

Lethal Incompetence

2007-10-27T21:42:00.000-07:00

The doctor had more than twenty malpractice suits filed against him.
Two hospitals had revoked his privileges. He testified that he had dyslexia
and sometimes confused drug dosages. This same doctor also supervised
the lethal injections of fifty-four inmates in Missouri over a decade.
For ten years, the public, the press, and the condemned inmates
themselves did not know about the supervising executioner’s qualifications
in Missouri.

Don't we deserve to know who's on the killing team here, too?

Annual Meeting this Saturday!!!

2007-10-24T11:49:00.000-07:00

This year's WCADP conference will be on October 27th at Seattle University Law School, Room 109.

Doors will open at 9:00AM (with beverages and a small selection of breakfast items). Conference will run from 9:30AM to 11:30AM. This year's focus will be on constitutional challenges to the methods of execution--focusing on hanging and lethal injection, the two methods used in Washington.

Our faculty features Todd Maybrown, an experienced capital defense attorney who has undertaken an extensive investigation into our state's methods of execution. This subject is particularly timely given the United States Supreme Court's recent decision to decide teh legality of lethal injection.

In addition, we will have an opportunity to disscuss ways that we can mobilize to prevent another killing in our name.

The annual meeting will follow the conference. All our invited to attend--we'll be electing officers and selecting members of the steering committee.

Rumors of the Death of the Death Penalty in Washington

2007-10-15T20:29:00.000-07:00

Rumors of the Demise of the Death Penalty Are Greatly Exaggerated.

In Spring 2002, I was meeting with a number of young men sentenced to death awaiting their fate in the state prison located in Livingston, Texas. While waiting for guards to transport my next client, a young man wearing the prison-issued, white jump-suit with the large, unmistakable “DR” (death row) on the back waved me over to ask me a question. “Do you think the United States Supreme Court will prevent the execution of juveniles this term? I heard that they were going to let Napoleon Beazley die because his case is too political, but then they were going to take a case right after he’s killed.” I told him that I hoped they would take a case--any case--immediately. “I hope so, too. I was only 17 when I was convicted of murder. Your guy is here. Thanks for talking to me. My name is Toronto Patterson.”

Next Term, the United States Supreme Court accepted Christopher Simmons’ case and later held that the U.S. Constitution prohibited the execution of juveniles.

For some time now and from various sources (politicians, prosecutors, defense attorneys, and fellow abolitionists), I have heard that we have achieved a de facto abolition of the death penalty in Washington. I hope so, but for the sake of eight men currently living in Walla Walla under a sentence of death, I do not believe we can rest so easy.

There are, of course, reasons to be optimistic. No new person has been sentenced to death since 2000. The state penitentiary has not carried out an execution since James Elledge volunteered in 2001--and it has been since 1984 when the last person who did not volunteer for a death sentence (Charles Campbell) was hung in our names.

However, there are danger signals. After the 9th Circuit vacated Cal Brown’s death sentence, the United States Supreme Court reversed that decision and reinstated death—one of several cases coming out of the 9th Circuit where the increasingly conservative Supreme Court took the lower appellate court to task for being too liberal. It seems to have worked. Just last week, the 9th Circuit found no error with Darold Stenson’s trial or death sentence. Trust me, there were many worthy errors to choose from.

After the Washington Supreme Court narrowly affirmed Davya Cross’ death sentence in 2006, last week they affirmed Robert Yates’ by an 8-1 margin. What’s most concerning is that the four justices who in Cross’ case argued that the death penalty was arbitrary, capricious, and broken appear to have given up the fight.

Despite control of both the legislative and executive branches in Olympia, very few officials in Olympia have the courage to speak of abolition—not when we issues like the future of the viaduct and the Sonics command attention.

At the end of the day, we know that rumors of the death penalty’s demise mean nothing. We cannot wait and hope that the arbitrariness which defines the death penalty continues to work in our favor. Because sometimes it does not. I’d tell you to ask Napoleon or Toronto, but you can’t. They are dead.

A Failure of Vision--The Upcoming King Co. Prosecutor's Election

2007-10-15T20:23:00.000-07:00

In 2003, Kamala D. Harris ran for the San Francisco District Attorney position and promised never to seek the death penalty. Shortly after her election, she kept her promise, deciding not to seek the death penalty in a high profile case involving the murder of a police officer, Isaac Espinoza. Instead, she sought and received a life without parole sentence for killer, David Hill.

This November, Harris is seeking re-election. Once again, she is promising not to seek a death sentence in any case that crosses her desk. Harris is instead running on a platform that involves balancing prosecutions of violent crimes with rehabilitation for lesser offenders. She is unopposed. The citizens of San Francisco have learned that they can live without the death penalty, despite the fact that California has the largest death row in the country.

Here, in King County, a new prosecutor will be elected in November. Unfortunately, both candidates support the death penalty although they each promise to be careful in deciding who should live and who should die.

This election could have been an opportunity for a candidate to step up and promise to take the money used to seek the execution of a fellow human being and use it instead for crime prevention efforts and to assist the family of victims of violent crime. This election could have been an opportunity to explain why not seeking the death penalty is good public policy and the only decent way to administer justice.

Perhaps, the candidates felt that the public would not support such a position. If so, they should have looked to San Francisco DA Harris. She could have told them that the people will support a true leader.

Is this the 21st Century?

2007-09-12T08:02:00.000-07:00

Tennessee used its electric chair for the first time in 47 years on Wednesday to execute a man who killed his three sons and their half-sister.

Electrocution was first introduced in New York in 1888 as a more humane method of execution than hanging, but there have been horrific instances of inmates catching on fire, multiple jolts being needed to kill, and bones being broken by convulsing limbs.

Since the U.S. Supreme Court reinstated the death penalty in 1976 there have been 153 inmates executed in the electric chair, most recently a condemned murderer in Virginia in July 2006. Holton's was the 1,097th U.S. execution since 1976.

Holton was the second person executed by Tennessee this year and the 40th U.S. execution so far in 2007.

The electric chair is now the sole method of execution only in Nebraska, while nine other states have it as an option or for crimes committed before a certain date.

How can it be that this nation was shocked and outraged when we learned that Michael Vick electrocuted dogs, but we turn around and do the same thing to a human being in our names?

Did Texas Execute Innocent Men?

2007-09-07T09:12:00.000-07:00

Dan Rather recently did a story on the execution of two men in Texas and the compelling proof of their innocence. You can view it here: http://www.hd.net/danrather.html

Did Texas execute innocent men? Yes.

Can any state using the death penalty make that same mistake? Absolutely.

Photos from Robbie Sings for Abolition

2007-08-13T08:09:00.000-07:00

A good time was had by all. We raised a little money and a lot of consciousness.

An Open Letter to the King Co Prosecutor Candidates

2007-08-11T08:10:00.000-07:00

Agree that, if elected, you will never seek a sentence of death.

Make the promise at every meeting, rally, or event.

Tell us how the money saved by abolishing the death penalty in King County can be used to fund measures to prevent crime and to aid the victims of crime.

Explain that it is time for a change and that King County can become a model for the state--that we are all better off without the machinery of death.

King County is better than the death penalty. We don't need it. It's a human rights abuse.

And, you will have our vote. We will work for you. You can take all of the credit when abolition is a reality in this state. We'll be the ones applauding you the loudest.

Robbie Fulks to Perform a Benefit Concert on August 12

2007-07-26T09:14:00.000-07:00

America's answer to Elvis Costello, Robbie Fulks is playing a benefit for the Washington Coalition to Abolish the Death Penalty (the hippest Coalition in the nation) on August 12 at 6 pm at Zeitgeist Coffee in Seattle.

Robbie Fulks is one of the most accomplished songwriters of his or any generation, but he's also a virtuoso guitar player and an unforgettable performer. This promises to be a night to remember.

RSVP at http://www.abolishdeathpenalty.org/ Do it now, we expect a capacity crowd.

Robbie Fulks--Musical Genius? Decide for Yourself on August 12th

2007-06-30T07:17:00.000-07:00

Now the hour draws nigh, the last bell tolls

How heavy my chains, how still my soul

But somewhere in the dark, a newborn cries

And a mother looks down with love into a killer's eyes.

Turn away young man, from the siren's spell

Turn back from the path where only torment dwells

Heed well the tale of William Hayes

Born 35 years ago, and he'll hang today

Lyrics from "Cold Statesville Ground," a song that we'd appreciate more if it was an historical tale, rather than an assessment of our current community.

A Big Win in the US Supreme Court!

2007-06-28T08:35:00.001-07:00

A divided Supreme Court on Thursday blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.

The court ruled 5-4 in the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in front of his wife and young daughter.

The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. "This argument, we hold, should have been considered," said Justice Anthony Kennedy, who wrote the majority opinion.

Panetti's lawyers wanted the court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

The Eighth Amendment of the Constitution bars "the execution of a person who is so lacking in rational understanding that he cannot comprehend that he is being put to death because of the crime he was convicted of committing," they said in court papers.

Politicians Lag Behind the Public--A Majority Supports Moratorium

2007-06-16T17:13:00.000-07:00

From the Death Penalty Information Center:

According to a national public opinion poll conducted in 2007,the public is losing confidence in the death penalty. People are deeply concerned about the risk of
executing the innocent, about the fairness of the process, and about
the inability of capital punishment to accomplish its basic purposes.
Most Americans believe that innocent people have already been executed, that the death penalty is not a deterrent to crime, and that a moratorium should be
placed on all executions.

The public's lack of confidence in the death penalty is being echoed by representatives of victims' groups, by former supporters of the death penalty,
and in the editorial pages of the nation's newspapers. Although the dissatisfaction with capital punishment has many roots, the common and principal concern
heard throughout the country is the risk that innocent people may be caught up with the guilty.

It is time that our elected representatives instituted our collective will--abolition now!

Lagging Behind Florida? Shame on Us!

2007-06-14T07:52:00.000-07:00

The Florida Supreme Court recently reversed the Christopher Offord's death sentence based on his severe mental illness. Here's an excerpt from the opinion:

Offord's case is notable because it is one of the most documented cases of serious mental illness this Court has reviewed. Through the uncontradicted medical records, a picture emerges of an individual with two serious mental illnesses-schizophrenia and bipolar disorder-who has been in and out of institutions since he was just five or six years old. During a 2001 hospitalization in Texas, the staff considered Offord's prognosis poor and predicted that he would be unable to function well outside of a facility. This proved to be an accurate assessment because Offord was admitted to hospitals numerous times during 2002, 2003, and 2004. After coming to Florida, he was admitted to Bay Behavioral four times, the last on July 4, 2004, only weeks before the murder. In addition, Offord was receiving permanent social security disability payments because of his mental illness. Although Offord also has a substance abuse problem, his medical history indicates that his mental health significantly contributed to the murder.

As this Court observed over 34 years ago in Dixon:

It is necessary at the outset to bear in mind that all defendants who will face the issue of life imprisonment or death will already have been found guilty of a most serious crime, one which the Legislature has chosen to classify as capital. After his adjudication, this defendant is nevertheless provided with five steps between conviction and imposition of the death penalty-each step providing concrete safeguards beyond those of the trial system to protect him from death where a less harsh punishment might be sufficient.

The final step is the mandatory review by this Court, which we found was one indication of “legislative intent to extract the penalty of death for only the most aggravated, the most indefensible of crimes.” Id. at 8. For all the reasons we have explained, we conclude that this is not among “the most aggravated and unmitigated of most serious crimes” for which the death penalty is reserved. Id. at 7. Imposition of the death penalty would thus be a disproportionate punishment. We therefore vacate the death sentence and remand for the imposition of a life sentence without the possibility of parole.

Come on Washington--if our evolving standards of decency lag behind Florida, we've got some catch up to do.

Lethal Injection--Not in My Name

2007-06-06T12:16:00.000-07:00

Some Recent Examples of Botched Executions:

December 7, 2000. Texas. Claude Jones.
Jones was a former intravenous drug abuser. His execution was delayed 30 minutes while the execution "team" struggled to insert an IV into a vein. He had been a longtime intravenous drug user. One member of the execution team commented, "They had to stick him about five times. They finally put it in his leg." Wrote Jim Willett, the warden of the Walls Unit and the man responsible for conducting the execution, "The medical team could not find a vein. Now I was really beginning to worry. If you can't stick a vein then a cut-down has to be performed. I have never seen one and would just as soon go through the rest of my career the same way. Just when I was really getting worried, one of the medical people hit a vein in the left leg. Inside calf to be exact. The executioner had warned me not to panic as it was going to take a while to get the fluids in the body of the inmate tonight because he was going to push the drugs through very slowly. Finally, the drug took effect and Jones took his last breath."

June 28, 2000. Missouri. Bert Leroy Hunter
Hunter had an unusual reaction to the lethal drugs, repeatedly coughing and gasping for air before he lapsed into unconsciousness. An attorney who witnessed the execution reported that Hunter had "violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth like this repeatedly. ... He suffered a violent and agonizing death."

November 7, 2001. Georgia. Jose High.
High was pronounced dead some one hour and nine minutes after the execution began. After attempting to find a useable vein for 39 minutes, the emergency medical technicians under contract to do the execution abandoned their efforts. Eventually, one needle was stuck in High's hand, and a physician was called in to insert a second needle between his shoulder and neck.

May 2, 2006. Ohio. Joseph L. Clark.
It took 22 minutes for the execution technicians to find a vein suitable for insertion of the catheter. But three or four minutes thereafter, as the vein collapsed and Clark's arm began to swell, he raised his head off the gurney and said five times, "It don’t work. It don’t work." The curtains surrounding the gurney were then closed while the technicians worked for 30 minutes to find another vein. Media witnesses later reported that they heard "moaning, crying out and guttural noises."56 Finally, death was pronounced almost 90 minutes after the execution began. A spokeswoman for the Ohio Department of Corrections told reporters that the execution team included paramedics, but not a physician or a nurse.

December 13, 2006. Florida. Angel Diaz.
After the first injection was administered, Mr. Diaz continued to move, and was squinting and grimacing as he tried to mouth words. A second dose was then administered, and 34 minutes passed before Mr. Diaz was declared dead. At first a spokesperson for the Florida Department of Corrections claimed that this was because Mr. Diaz had some sort of liver disease. After performing an autopsy, the Medical Examiner, Dr. William Hamilton, stated that Mr. Diaz’s liver was undamaged, but that the needle had gone through Mr. Diaz’s vein and out the other side, so the deadly chemicals were injected into soft tissue, rather than the vein. Two days after the execution, Governor Jeb Bush suspended all executions in the state and appointed a commission “to consider the humanity and constitutionality of lethal injections.”

May 24, 2007. Ohio. Christopher Newton.
According to the Associated Press, “prison medical staff” at the Southern Ohio Correctional Facility struggled to find veins on each of Newton’s arms during the execution. Newton, who weighted 265 pounds, was declared dead almost two hours after the execution process began. The execution “team” stuck Newton at least ten times with needles before getting the shunts in place were the needles are injected.

Death Penalty (Temporarily) Reinstated for Cal Brown

2007-06-05T12:42:00.000-07:00

A deeply split Supreme Court in Uttecht v. Brown reversed the Ninth Circuit on the issue of juror death qualification. The ruling grows out of the murder trial of Cal Coburn Brown, who was convicted and sentenced to death for first degree murder. Brown was prosecuted for raping and torturing a woman for two days before killing her and dumping her body in a parking lot. During jury selection, one potential member of the panel — his name was Richard Deal, although the Supreme Court refers to him throughout only as “Juror Z” — repeatedly said that he could impose the death penalty in circumstances that he thought appropriate. But some of his answers (recounted in an appendix to the majority opinion) show some misunderstanding of Washington state law on punishment for murder, and some ambiguity about just when Mr. Deal would be willing to vote for a death sentence.

The Supreme Court granted cert this Term in nine capital cases. One of the nine remains to be decided (Medellin). The Court ruled in favor of death four times (Ayers, Schriro, Lawrence, Uttecht) and in favor of the defendant four times (Abdul-Kabir, Brewer, Smith, Weaver). Only one case was not decided by how Justice Kennedy aligned himself (Weaver). Justice Kennedy’s vote, to repeat the obvious, governs the Court’s capital jurisprudence. He doesn’t seem to be in favor of dismantling it, but rather slowly modifying it.

We say move faster--we're waiting for you.

A New Death Sentence and a New Reason for Abolition, Now!

2007-05-24T15:31:00.000-07:00

Second jury, same verdict
ADAM LYNN; The News Tribune
A jury deliberated less than a hour Tuesday before deciding that one of Pierce County’s most ruthless killers should be sentenced to death for raping, robbing and murdering a Tacoma grandmother a decade ago.
It was the second time a Pierce County jury has said Cecil Emile Davis should die for killing Yoshiko Couch, 65, in her East Side home in January 1997, a crime that shocked the community with its appalling brutality.

Another jury convicted Davis, now 47, of aggravated first-degree murder in the case in 1998. It took that jury barely 90 minutes to conclude that Davis should be executed.

A judge formally imposed the death sentence, but the state Supreme Court overturned it three years ago, saying a juror might have been predisposed to send Davis to death row because he saw the defendant in shackles during trial.

The high court left Davis’ conviction intact but sent the case back to Pierce County so another jury could decide if he should be executed.

It took the second jury about 45 minutes Tuesday to say that he should.

“We’re pleased,” said deputy prosecutor John Neeb, who along with special deputy prosecutor John Hillman made the state’s case. “We thought the first death sentence was legitimate, and we’re glad this jury re-imposed it.”

Davis showed little emotion Tuesday when the jury’s verdict was announced.

Defense attorney Ronald Ness, who along with John Cross represented Davis, said they all were disappointed with the outcome.

“I’m not sure there’s much more that needs to be said,” Ness said.

The nine women and three men of the jury declined to comment as they left court.

But their swift decision showed they agreed with Neeb’s contention that Davis is the “worst of the worst” and “richly deserves” the death sentence.

Couch is not the only woman Davis has been convicted of killing. In November, a jury found him guilty of second-degree murder for stomping to death Jane Hungerford-Trapp, in April 1996.

“The truth is the defendant has left pain and misery wherever he goes,” Hillman said.

In the Couch case, evidence showed Davis raped the woman with an object of some kind before throwing her into a partially filled bathtub and smothering her with towels soaked in a toxic solvent.

He then tried to clean up the crime scene and Couch’s body with a household cleanser before stealing the wedding ring from her finger, the cash from her purse, and meat and beer from her kitchen, Neeb said during his closing argument a few hours before Tuesday’s verdict.

Her disabled husband was in the house the whole time, unable to help her.

“This crime is as bad, as horrifying, as awful as it can get,” Neeb said. There is no punishment appropriate for Davis but death, the deputy prosecutor added.

“There are some crimes so bad, some people so bad, that anything less just wouldn’t be right,” Neeb said.

Ness disagreed.

The defense attorney told the jury that his client was beaten as a child and pointed out that three psychiatrists who testified during trial diagnosed Davis with a host of mental troubles, including post traumatic stress disorder and a cognitive disorder with psychotic features.

Davis also has an IQ in the low 70s, which is close to the “retardation line,” Ness said.

“Are those mitigating circumstances? Of course they are,” the attorney said in arguing for a life sentence without the possibility of parole.

Ness also asked jurors to show mercy on Davis.

He read a line from Shakespeare’s play, “The Merchant of Venice,” where the character Portia says, “Earthly power doth then show likest God’s when mercy seasons justice.”

“We ask you to do the right thing,” Ness said. “Consider mercy. Consider the mitigating circumstances.”

Given a chance to rebut Ness’s closing argument, Hillman reminded jurors what happened to Couch and to see Davis for who he really is.

“He killed her because he wanted to, because he felt like it,” Hillman said. “That’s who Cecil Davis is.”

Superior Court Judge Frederick Fleming is scheduled to formally impose the death sentence Friday.

Langford and Co on the radio (on the internet)

2007-04-10T19:49:00.000-07:00

Relive that glorious night of abolition in song:
http://kexp.org/aspnet_client/KEXPViewMediaGroup.aspx?rID=3898&pID=528&fID=1169&date=1168

We Grow These in Texas...and Washington, too.

2007-03-06T07:04:00.000-08:00

Jon Langford & Co Arrive--Leaving a Trail of Abolition in Their Wake

2007-03-06T05:17:00.000-08:00

Jon Langford and his amazingly talented band performed "The Executioner's Last Songs" before a capacity house at the Triple Door on March 5.

Best known as the front man for the Mekons, Jon Langford created and performed a mordantly beautiful performance work--a compelling collection of tales and songs on the themes of murder, mob law, and cruel, cruel punishment. Langford took us on a twisting and witty autobiographical ride that looked unflinchingly at the promises of life and the penalty of death. The performance combined live music, spoken word, his own visual art, and recordings of American roots music.

Prior to his appearance in Seattle, Langford and his mates produced an series of two CD's raising money for the Illinois Coalition to Abolish the Death Penalty, while simultaneously raising awareness around the globe. Within a year, Gov. Ryan cleared death row in Illinois.

Just before arriving in Seattle, Langford performed the show and spoke to Montana law-makers. While he was there, the Montana senate voted to abolish the death penalty.

A Welsh-born, country music playing punk rocker convincing the Montana senate to abolish the death penalty after rubbing the nose of the Lt. Gov's stuffed buffalo head? I honestly never thought I'd write those words, but maybe it is high time for a change to come.

The Demise of our Bills

2007-03-06T04:58:00.000-08:00

Remember "I'm Just a Bill" from Schoolhouse Rock:

Well, it's a long, long journey

To the capital city.

It's a long, long waitWhile I'm sitting in committee,

But I know I'll be a law some dayAt least I hope and pray that I will

But today I am still just a bill.

Well, we waited and waited, but never got out of committee--we actually made it out of the first committees on our study bill, but then couldn't get out of Ways and Means and Appropriations. Our modest proposal to ban the execution of individuals who are severely mentally ill never made it out of the judiciary committees, despite the overwhelming show of support.

On the other hand, thre were more important things for the Legislature to consider than preventing the execution of individuals who suffer from the most serious of mental illnesses or taking the time and spending the money to discover whether our death penalty laws are in greater need of repair than the Seattle Viaduct. Like, creating a state climatologist or setting up a gift shop in the legislative building---and, no, I am not making this up. And, let's not forget the important debate on the future of the viaduct.

Tell you what, while we are tearing down that structure why don't we dismantle the machinery of death. I think the view will be better--for all our citizens.

We will be back, no reference to The Terminator intended. Our passion for justice runs very, very deep.

Political Courage--Calling Gov. Gregoire

2007-03-01T20:12:00.000-08:00

The following was written by Michael Tackett published in PostBulletin.com.:

While Sens. Hillary Clinton and Barack Obama were engaged in the first official hissy fit (the technical term) of the 2008 presidential campaign, another Democrat was actually engaged in a matter of important public policy.

Just to recap: Clinton was furious because Hollywood mogul David Geffen ridiculed her and former President Bill Clinton in an interview with Maureen Dowd of The New York Times on the very day that Geffen was hosting a fundraiser for Obama that reportedly brought $1.3 million to his campaign. Before his conversion to Obama, Geffen had raised about $18 million for the former president.

The spat led to several days of coverage in a not-so-deep search for deeper meaning about the state of the race and the state of the Clintons, which, by the way, undoubtedly will be the campaign's ongoing soap opera subtext.

Meanwhile, across the country in Annapolis, Md., another public drama was playing out, and in this case, the stakes were not money, but life and death.

Martin O'Malley, the youthful new governor, made an emotional plea to a state Senate committee to repeal the death penalty in Maryland.

That is one long march from the scene at a 1988 presidential debate when Michael Dukakis was pilloried for giving a lawyerly answer to a hypothetical question about whether he would impose the death penalty on a man who had raped and murdered his wife. Dukakis' dispassionate rejection of capital punishment became a ready emblem for the Republican narrative that Democrats were soft on crime.

From that point on, most Democrats with higher ambitions rushed to be seen as state-sanctioned Grim Reapers. None did it with as much flourish as then-Arkansas Gov. Bill Clinton, who jetted back to his state just before the New Hampshire primary to preside over the execution of Ricky Ray Rector, a brain-damaged man who told prison officials he wanted to save the dessert from his last meal until after his execution.

Few Democrats since have been willing to take forceful public action that would make it appear as if they were not tough on criminals. In fact, it was not until a Republican, former Illinois Gov. George Ryan, imposed a moratorium on the death penalty that any movement to repeal capital punishment statutes gained significant traction. In fact, O'Malley cited during his testimony the 18 Death Row inmates who have been released in Illinois after their innocence was proved.
O'Malley has been on the short list of rising Democratic stars for several years. Telegenic, smart and the leader of his own Irish band, O'Malley's March, he was mayor of Baltimore before being elected governor last November. Before that, he had been chosen to speak at the Democratic National Convention in 2004 and fortunately for him, in a very forgettable time slot, given a delivery that dripped with emotion far more than sincerity.

His push to repeal the death penalty is perhaps his highest-profile move since taking office, and one that carries abundant political risk, particularly because he is seen as a politician with national ambitions.

But on this issue, O'Malley is resolutely righteous, making a moral and theological argument as much as a political or legal one to support his thesis that the death penalty is neither a "just punishment" nor an "effective deterrent" to murder.

"Notwithstanding the executions of the rightly convicted, can the death penalty ever be justified, then, as public policy when it inherently necessitates the occasional taking of a wrongly convicted and innocent life?" he said. "Is any one of us willing to sacrifice a member of our own family -- wrongly convicted, sentenced and executed -- in order to secure the execution of five rightly convicted murderers? And even if we were, could that public policy be called 'just'? I believe it cannot."

He was just getting wound up.

"Individual human dignity is the concept that leads brave individuals to sacrifice their own lives for the lives of strangers," O'Malley said. "Individual human dignity is the truth universal that is the basis of all ethics. Individual human dignity is the fundamental belief upon which all laws of this state and this republic are founded. And absent a deterrent value, I truly believe that the damage done by our conscious communal use of the death penalty to the concept of human dignity is greater than the benefit of even a justly drawn retribution."

It was a gutsy approach, even in a heavily Democratic state. And O'Malley will find out if his risk is rewarded. Maybe Geffen would bankroll the movie.

Action People take to Your Phones!!

2007-02-28T09:09:00.000-08:00

From Coalition Member Amy Luftig:

Hello! It is with great excitement that I report that BOTH of our Task Force Study Bills (HB 1518 and SB 5786) have **passed out of their respective Judiciary Committees in both Houses!** In both houses, all Democrats voted yes and all Republicans voted no.

Unfortunately, neither of the mental illness bills will be voted on this year (committee cutoff is tomorrow). In the Senate, this is because we did not have the votes to pass it (all Repubilcans and Senator Hargrove (D-24) did not support.) We DO believe that we had the votes to pass it in the House Committee. However, it is our understanding that leadership in the House did not want this bill to move this year. Such is way of politics. We are well-poised to introduce it again next year (and we will). Do not despair - remember that it takes about 5 years for bills like this to pass. Much work and education needs to be done, member by member. We'll get this one done.

NEXT STEP FOR THE TASK FORCE BILLS:THESE BILLS MUST BE HEARD AND VOTED OUT OF THE SENATE WAYS AND MEANS COMMITTEE/HOUSE APPROPRIATIONS COMMITTEE by MONDAY, MARCH 5TH.

Please call AND email the Chairs of these Committees and Urge a Heairng and a Vote by Monday. Chair of Senate Ways and Means: Senator Margarita Prentice. prentice.margarita@leg.wa.gov. 360-786- 7616. (Bill Number: 5786) Chair of House Appropriations: Rep. Helen Sommers. sommers.helen@leg.wa.gov. 360-786-7814.(Bill Number: HB 1518). It is very important that we call the chairs of these committees (even if you already have!)

Here are a couple of quick talking points: *Very significant questions about the application in the death penalty in Washington were raised by the Washington Supreme Court in the July 2006 Washington Davya Cross Case. Four dissenting justices said that the death penalty in Washington was as random as lightning striking -- defying rational explanation. * It is the responsibility of the legislature to pass laws and ensure that they are applied fairly. * This bill has a small fiscal note - $122,000 -- but could have an enormous positive fiscal impact in terms of ensuring that the death penalty does not unecessarily waste taxpayer dollars.

GOOD LUCK AND PLEASE CALL SOON!

AP Story on Hearings in the House

2007-02-15T20:32:00.000-08:00

By Associated Press

OLYMPIA, Wash. (AP) - Bill Babbitt held up photos of his decorated Vietnam War veteran brother Wednesday as he asked lawmakers to pass a bill that would allow defendants to avoid the death penalty by showing they were severely mentally impaired.Babbitt's brother Manny was executed in California in 1999 for the 1980 murder of 78-year-old Leah Schendel. Babbitt was sentenced to death for breaking into Schendel's apartment and beating her. She died of a heart attack.Babbitt said his brother, who received a Purple Heart in prison for wounds suffered at the siege of Khe Sanh, suffered from mental illness and had spent time in a mental hospital."I supported the death penalty until 1980 when it came knocking on my door," Bill Babbitt, who traveled from Elk Grove, Calif., told members of the House Judiciary Committee. "My brother went to Vietnam and came back severely mentally ill, he never would have killed without the war wounds that tormented him."

The bill would bar the state from executing mentally ill defendants whose appreciation for their acts is "significantly impaired." Mentally retarded defendants already are barred from execution. Under the measure "severe mental disorder" does not include mental illness or defects due to alcohol or drug abuse, or repeated criminal conduct.Rep. Brendan Williams, D-Olympia and the bill's sponsor, said that the bill would make a "necessary change to the law.""If someone lacks the full capacity to make the conscious choice to do wrong, I believe that in a just society, they should not be subjected to the retribution of the death penalty."Under the measure, the defendant must prove that he does indeed have a severe mental disorder, and if a judge or jury agrees, the defendant must be sentenced to life imprisonment without the possibility of release.

But Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, said that the definition is too broad, and that if the bill passes as worded, "It's close to an effective repeal of the death penalty."Won't the average juror say, 'of course there's something wrong with this person because a normal person doesn't do that?"' he asked. "This is the broadest definition you could pick. It's going to be wide open."The committee also heard testimony on another measure sponsored by Williams that would put a moratorium on executions until July 2008 - though none are expected by then - while a task force studies the application of the death penalty in Washington.

The task force bills in the House and Senate call for a 14-member commission to review the application of the death penalty, including whether race, gender or economic status play roles in who gets it, and whether prosecutors uniformly charge aggravated first-degree murder, the only crime that can carry the death penalty in this state. The proposed commission would also review the costs associated with trials and appeals, and whether the death penalty is applied randomly, as four dissenting state Supreme Court justices have said.Williams said it's important for the Legislature to take up the death penalty issue, since the state Supreme Court upheld Washington's capital punishment law 5-4 last year and invited lawmakers to reconsider the death penalty's fairness in light of King County Prosecutor Norm Maleng's decision in 2003 to spare the life of the Green River Killer, Gary Ridgway. Ridgway pleaded guilty to killing 48 women, and helped authorities find remains, in exchange for life in prison without release."There is no other branch of government to whom we can in turn delegate this task to," Williams said. "The buck stops here."

The appointment of such a commission was called for by the state bar association's death penalty subcommittee following an 18-month study that concluded last December.The subcommittee's report raised questions about the wisdom of continuing to seek execution, given the exorbitant costs of such trials and the overwhelming likelihood of reversal by appeals courts. The state has spent millions of dollars pursuing death in 79 cases over the last 25 years, with four executions to show for it. Three of the convicts executed had waived their appeals and volunteered to be killed.

McBride said the state doesn't need another study on the death penalty.He said the main problem with the task force proposal is that it "avoids the moral and ethical question about the death penalty."He said the recent Supreme Court ruling said that the moral question was up to the Legislature."If you want to debate the moral question, we would welcome that," he said. "Because quite frankly prosecutors are not unanimous on that issue. The problem with this study is it avoids the moral question.""It's disappointing to me that this is more of the same of what we've done for 25 years," he said. "Really what we need to talk about is, is it moral to impose the death penalty or not?"Last month, Maleng announced he would seek the death penalty in the slaying of a soldier's family, the first case in which he has sought the death penalty since Ridgway.The Senate Judiciary Committee also heard public testimony on the bills Wednesday.Rep. Pat Lantz, D-Gig Harbor and chairwoman of the House committee, said she wasn't certain sure that either measure would have the votes to pass her committee.

A National Legislative Update

2007-02-09T20:39:00.000-08:00

From our Friends at Capital Defense Weekly:
Theme of the week? Politics & the death penalty
Some weeks there are there are themes or trends that seem to develop or are highlighted. This week, amidst what appears to be a relatively slow week for new appellate case law, it seems that seems to be politics and the death penalty.
For example a “state lawmaker filed a bill Thursday that would protect doctors who take part in executions, joining a debate that has effectively shut down capital punishment in North Carolina. The bill filed by state Sen. Phil Berger came a day after a longtime death penalty opponent in the chamber asked for a moratorium while the lethal injection process is studied.” Press accounts here. ODPI is keeping up with developments, & People of Faith Against the Death Penalty is helping advocatea for many of those change in the Tar Heel state.
In the midwest, as DPIC notes, “Missouri Rep. Bill Deeken, a Republican death penalty proponent, has introduced legislation that would halt executions in the state until 2011 and would create a capital punishment commission to examine the fairness and accuracy of Missouri’s death penalty. Deeken stated that his motivation for the bill came after realizing that the state’s death penalty has not been implemented fairly in all cases and it does not adequately prevent wrongful convictions. He noted, ‘ am not against the death penalty. But what I am for is to make sure that any person that is sentenced to death is the right person. If I was on a jury, and I found out that I had put someone to death that was not guilty, it would bother me for the rest of my life’.”
Further west, “[f]or the first time in nearly two decades, members of the Nebraska’s unicameral legislature will have an opportunity to debate a bill that would repeal the state’s death penalty and replace it with a sentence of life without parole and an order of restitution. Members of the legislature’s Judiciary Committee unanimously advanced the bill, noting that their colleagues in the full senate should have a chance to debate the measure. The bill’s sponsor, Senator Ernie Chambers, introduced similar measure in 1979 that won approval by the legislature, but was vetoed by then-Governor Charles Thorne.” DPIC, from which the quote is taken, has more.
In Colorado, the AP notes a key committee vote of 7-4 to abolish the death penalty in Colorado and use the money from death penalty cases to try to solve cold case files.
In Montana, press accounts note, the Senate Judiciary Committee heard from proponents of a billl, that would make life in prison without parole the “the most severe punishment available to prosecutors and juries in the state.”

Before It's Too Late....

2007-02-08T20:00:00.000-08:00

This is Bill Babbitt. He is holding a picture of his brother, Manny.

Bill Babbitt was present at San Quentin prison when at one minute after midnight on May 4th, 1999 the state of California executed his brother, Manny Babbitt.

Manny, the recipient of a Purple Heart for his service in Vietnam, was a paranoid schizophrenic who suffered from post-traumatic stress disorder. He had been tried and convicted for the murder of an elderly woman who had died of a heart attack after a break-in and beating.

When Bill realized that his brother could possibly be involved in the woman’s death, he contacted the police and helped them arrest his brother. In return, the police promised Bill that Manny would receive the psychological help that he needed and that they would help see that Manny would not receive the death penalty. Bill felt certain that when confronted with the reality of Manny’s mental illness, the justice system would hand down a fair sentence but avoid death. He was wrong.

Manny was sentenced to death and then executed, despite his severe mental illness and despite the promises made to Bill.

A death sentence for someone like Manny is exactly what we seek to prevent by HB 1707 and SB 5787. Bill Babbitt is travelling from California to Olympia to tell his and his brother's story. Please join us on February 14th. We need to act now, before its too late for someone else's brother.

HEARING DATES!!

2007-02-08T19:40:00.000-08:00

Our bills are set for hearings on February 14th at 1:30 in the House and 3:30 in the Senate. The exact location will be posted here, as soon as we get it.

Please come to the hearings, bring a friend (or two or three), and let's make democracy happen.

March 5th Annual Award Dinner

2007-02-04T18:54:00.000-08:00

Featuring Jon Langford performing "The Executioner's Last Songs."

March 5 at 7 pm at the Triple Door.

This is going to be great. Get your tickets at: http://www.abolishdeathpenalty.org/AbolitionDayDinner.htm

Feb. 14th Hearings on Our Bills!!!

2007-02-04T10:17:00.000-08:00

Our bills are getting committe hearings!! They will (very likely) be heard on the afternoon of February 14. We need you to come out in support.

Watch this blog for more news, or you can go to: http://apps.leg.wa.gov/billinfo/search.aspx?term=death+penalty&year=2007

Why Severely Mentally Ill Persons Should be Exempt from the Death Penalty

2007-02-03T08:21:00.000-08:00

Those who support the death penalty promise us that it is reserved for the "worst of the worst."

The US Supreme Court has held that juveniles (anyone under 18) and those suffering from mental retardation are by defintion never the worst of the worst. For that reason, they can never face the death penalty.

In Atkins, the US Supreme Court said: Because of their impairments, however, by definition [the mentally retarded] have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish.

In Simmons, the Court added: "The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. "

As a result, retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of immaturity or intellectual limitations.

These same arguments apply with greater force to persons who are sevrely mentally ill. The relative culpability of individuals whose ability to know right from wrong or to conform their conduct to the requirements of the law is substantially imparied is, by defintion, less than what is required for the "worst of the worst."

If we are to continue with the death penalty in this state, we must prohibit the execution of the severely mentally ill and we must do so, now. As former Chief Justice Warren said, at stake here is "nothing less than the dignity of man."

Before its too late...

2007-02-02T20:31:00.000-08:00

This is Wanda Jean Allen. Wanda Jean was executed in January 2001, after spending nearly 12 years on death row in Oklahoma for murdering her former girlfriend, Gloria Leathers and despite strong evidence that Wanda Jean was mentally retarded.

No evidence of Wanda's mental impairments was presented during her trial. In a 1991 affidavit, her attorney stated that it was not until after the trial that he learned when Wanda was 15 years-old her IQ had been measured at 69 and that the doctor who examined her had recommended a neurological assessment because she manifested symptoms of brain damage. The attorney stated, "I did not search for any medical or psychological records or seek expert assistance" for use at the trial.

A psychologist conducted a comprehensive evaluation of Wanda in 1995 and found "clear and convincing evidence of cognitive and sensory-motor deficits and brain dysfunction" possibly linked to an adolescent head injury. At the age of 12, Allen had been hit by a truck and knocked unconscious, and at 14 or 15 she had been stabbed in the left temple. He found "particularly significant hemisphere dysfunction" impairing "her comprehension, her ability to logically express herself, her ability to analyze cause and effect relationships." He also concluded that Allen was "more chronically vulnerable than others to becoming disorganized by everyday stresses-- and thus more vulnerable to a loss of control under stress."

Just one year later, the Supreme Court outlawed executions of mentally retarded individuals.

But, that was one year late for Wanda Jean's family. Let's pass a prohibition on executing the severely mentally ill before it's too late for someone else's daughter....

Free Movie!! NW Film Forum

2007-02-02T16:12:00.000-08:00

NW Film Forum
1515 12th Ave, Seattle WA 98122
Phone: (206)329-2629

FEB 24 Sat at 4pm

ITVS Community Cinema and Northwest Film Forum Present:
RACE TO EXECUTION
(Rachel Lyon & Jim Lopes, USA, 2006, DVD, 53 min.)
Sponsored by KBCS
Co-presented by KCTS, The City of Seattle Office for Civil Rights, The Central District Forum for Arts & Ideas, and the Langston Hughes African American Film Festival .

This compelling investigation of America's death penalty traces the fates of two Death Row inmates, revealing how race discrimination infects the capital punishment system. Neither for nor against the death penalty, RACE TO EXECUTION explores how the media's racially charged portrayal of victims and perpetrators is internalized by potential jurors and carried into the courtroom. Admission free with RSVP to mailto:rsvp@communitycinemaseattle.org?subject=rsvp_Twisted! or (800) 930-6060.

HB 1707 and pending cases

2007-02-02T07:47:00.000-08:00

One question that comes up frequently during discussions regarding HB 1707 is: "what would happen with pending cases, either individuals facing trial or those on death row?"

The short answer is that HB 1707 would give those persons a chance to prove that they were severely mentally ill at the time of the crime. If a prosecutor agreed with the claim, the defendant would be sentenced to life in prison. If a prosecutor disagreed, then both the defense and the prosecution would present their respective evidence to a trier of fact (judge or jury) for a decision whether the defendant fell within the statute's narrow defintion. The same process applied after passage of the prohibition on executing persons who were "mentally retarded."

For example, the King County Prosecutor recently announced his decision to seek a death sentence for Connor Schierman, who is charged with four murders. If HB 1707 is passed, Prosecutor Maleng could reconsider his decision, but would not be required to do so under the new law. If Mr. Schierman claims that he was severely mentally ill and, as a result, was substantially imparied in his ability to know right from wrong or to control his actions, he could then file a motion asking for dismissal of the death penalty. A judge would then hear the evidence, giving both sides an opportunity to present their case. If the judge decided that Schierman was severely mentally ill, then the death penalty would be dismissed, although Schierman would still face four murder charges and four life sentences. If the judge disagreed, then Mr. Schierman could present his claim to his jury during the penalty phase, who would decide either life or death.

I should note that I do not have any personal knowledge, beyond what I have read in the newspapers, about Mr. Schierman. I do not know whether he is severely mentally ill. Instead, I am simply using Mr. Schierman's case to illustratae how HB 1707 would work, if passed.

In the end, HB 1707 gives both the prosecution and the defense an equal and fair opportunity to present their cases. However, if a judge or jury determines that a defendant facing a death sentence was, in fact, severely mentally ill at the time of the crime, the result is to preclude a death sentence.

A Modest Proposal (HB 1707 and SB 5787)

2007-01-31T15:04:00.000-08:00

The proposed legislation to prohibit death sentences for persons whose actions are the result of a severe mental illness is very modest proposal.

First, the definition of "severe mental illness" used in the bill is narrower than the current definition used in the approved list of mitigating factors. In other words, it is tougher to prove "severe mental illness" as a complete defense to the death penalty than it was to prove severe mental illness as a mitigating factor.

Next, our definition of "severe mental illness" constitutes insanity in seventeen states. In those states, a finding of severe mental illness would shield the defendant from any criminal liability, not just a possible death sentence.

In at least six additional states--Arizona, Florida, Indiana, Mississippi, Ohio and Nevada--proportionality review has served to remove many mentally ill offenders (where the existence of serious mental illness is not disputed) from the ranks of the condemned despite the apparent availability of capital punishment in such cases.

The current trend is to extend this prohibition. Like Washington State, Indiana does not recognize "severe mental illness" as a complete defense to murder. However, like us, Indiana is currently considering similar legislation to ban death sentences for the severely mentally ill.

If you add the states that have abolished the death penalty completely, it is clear that an overwhelming number of states have repudiated death sentences for persons who are severely mentally ill.

I hope that the time has come to add our great state to this list.

The Conversation

2007-01-31T14:14:00.000-08:00

KUOW, local public radio, aired a discussion about the future of the death penalty in Washington State. You can listen to it here: http://www.kuow.org/programs/theconversation.asp

We're in the Senate!!

2007-01-31T09:30:00.000-08:00

Our two bills (creating a task force to study the (mis)-use of the death penalty in this state and to prohibit the execution of severely mentally ill individuals) have been introduced in the Senate.

SB 5786 and 5787 are the same their counter-parts in the House.

You can find them here:http://apps.leg.wa.gov/billinfo/search.aspx?term=death+penalty&year=2007

Lethal Injection and National Death Penalty Trends

2007-01-31T07:38:00.000-08:00

Stateline.org's report on national trends, includes an interesting section on the death penalty (beginning on p. 35). It also addresses problems state face in funding public education.

Hey, maybe if we got rid of the death penalty we could use that money for education....just a thought.

You can download the report here: http://www.stateline.org/live/publications/pdf-request

Reflections on a Maturing, Moral Society

2007-01-30T12:06:00.000-08:00

Dan Rodricks, from the Baltimore Sun, has written a brilliant editorial, which includes this passage:

If an American ideal is that our society be less violent -- and I think we still want that, right? -- then we can't be authorizing executions.

Period.

Paragraph.

That's the moral burden of calling ours a civilized society.

If we all know and believe that violence begets violence, why do we give it our official approval? The death penalty makes hypocrites of us all.

You can read the entire editorial here: http://www.baltimoresun.com/news/local/bal-md.rodricks28jan28,1,2012226.column?coll=bal-local-storyutil&ctrack=1&cset=true

A Shout Out...

2007-01-29T21:14:00.000-08:00

...to our friends at Capital Defense Weekly, who kindly said "hello" and promoted our bills (and blog) here: http://capitaldefenseweekly.com/

There is strength in our shared knowledge, resolute opposition to capital punshment, and the ever growing number of abolitionists.

A colossal waste....

2007-01-27T12:47:00.000-08:00

In 1991, James Brett killed Kenneth Milosevich.

In 1992, James Brett was convicted of murder and sentenced to death here in the State of Washington. Three years later, in 1995, his conviction was affirmed on direct appeal. Then, counsel was appointed to represent Brett in his Personal Restraint Petition. Here's what was discovered:

Dr. Julia T. Moore, a licensed, board-certified child and adult psychiatrist, reviewed Brett's Department of Juvenile Rehabilitation and school records, as well as other medical reports and records and affidavits from family members. She performed a clinical interview of Brett and concluded to a reasonable medical certainty that Brett suffered from bipolar disorder, fetal alcohol effect or alcohol-related neurodevelopmental disorder, and a psychiatric sequela as a consequence of poorly controlled diabetes. She further testified that Brett had suffered from bipolar disorder since at least age nine.

Dr. Robert A. Olsen, a board-certified medical doctor of internal medicine, psychiatry, and geriatric psychiatry, diagnosed Brett with "brittle" type 1 diabetes, a rare form of the disease, with severe medical and psychiatric consequences. Dr. Olsen testified that, in the short term, the disease could create wild fluctuations in blood sugar and could impair cognitive functions. In the long term, the disease could cause brain and heart damage, such as cognitive problems, dementia, coronary artery disease, peripheral vascular disease, and autonomic neuropathy. Brett's diabetic symptoms could have been aggravated by exposure to alcohol in childhood and throughout his adult life. Dr. Olsen concluded that the diabetes manifested itself when James Brett was nine years old.

Dr. Robin A. LaDue, a licensed clinical psychologist with a specialty in neuropsychology and renowned expert on fetal alcohol exposure, testified as to the impact of Brett's fetal alcohol condition. Dr. LaDue testified that Brett's fetal alcohol effect revealed "a pattern of brain damage most likely related to prenatal alcohol exposure." In her opinion, this brain damage had a "significant impact" on Brett's mental abilities, including his impaired judgment, his inability to understand cause and effect, and his difficulty controlling impulses.

None of this evidence was contested by the State.

None of this evidence had been presented to the jury that sentenced Brett to death.

So, in 2001, a decade after the crime, Brett's death sentence was overturned. He was later sentenced to life in prison.

While Brett's original trial attorneys should certainly be blamed for their negligence, you have to wonder if all of this could have been avoided if a law existed that made individuals, likes James Brett, who suffer from severe mental diabilities ineligible for a death sentence.

If we had such a law in 1991, could we have saved hundreds of thousands of dollars, avoided much anguish, and reached justice quicker? I think the obvious answer is "yes."

Before It's Too Late....

2007-01-27T08:42:00.000-08:00

This is Robert "Eagle" Clayton, a Native American who was convicted of murder in the State of Oklahoma.

Clayton was also mentally retarded. A psychologist, who testified at the trial, assessed that he had an IQ of 68 (indicating a learning disability), a tendency to be dependent and submissive, and was emotionally immature. The son of alcoholic parents, Robert Clayton had dropped out of school when he was about 12 years old.

At the time of Robert's trial, there was no prohibition against the execution of individuals suffering from mental retardation. However, that changed on June 20, 2002, when the United States Supreme Court ruled (in a case entitled Atkins v. Virginia) that it violates our constitutional protections to execute someone who is "mentally retarded."

The Supreme Court ruling came too late for Clayton and those who knew him. Clayton was executed by the State of Oklahoma on February 2, 2001.

We need to pass a law preventing death sentences for the severely mentally ill before it's too late for someone else.....

Before It's Too Late...

2007-01-26T20:59:00.000-08:00

This is Napoleon Beazley. Napoleon was 17 years old when he was convicted of murder and sentenced to death.

In 2004, the US Supreme Court accepted review and in 2005 ruled (in Roper v. Simmons) that the constitution prohibits death sentences for individuals who were juveniles at the time of their crimes.

Beazley made this same argument to the Supreme Court only two years earlier.

The decision in Roper v. Simmons came too late for Beazley. He was executed on May 28, 2002.

Let's pass a bill prohibiting death sentences for persons who are severely mentally ill before its too late for somebody else's son, brother, father, cousin, friend....

Indiana's Bill to Prohibit Death Sentences in Cases Involving Severe Mental ilness

2007-01-26T19:17:00.000-08:00

The Indiana Legislature has introduced a bill similar to ours. You can read the text of the bill and follow its progess here:
http://www.in.gov/apps/lsa/session/billwatch/billinfo?year=2007&session=1&request=getBill&docno=24

The accompanying fiscal impact statement sets forth the savings that would result, if such a bill became law: http://www.in.gov/legislative/bills/2007/PDF/FISCAL/SB0024.001.pdf

A Gap in the Evolving Standards of Decency

2007-01-26T14:05:00.000-08:00

The underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill, namely evolving standards of decency.

A landmark decision in June 2002 finally outlawed the death penalty for people with mental retardation. In Atkins v. Virginia, the Supreme Court held by six votes to three that the execution of such offenders is an excessive sanction, violating the Eighth Amendment ban on "cruel and unusual punishments". The Court reasoned that mental retardation diminishes personal culpability, and renders the death penalty in the case of this category of offenders difficult to justify on deterrence and retribution grounds.

The Atkins ruling overturned a 1989 decision, Penry v. Lynaugh, by finding that "standards of decency" in the USA had evolved in the intervening years to the point at which a "national consensus" had emerged against such executions – primarily reflected in state-level legislation banning the execution of the mentally retarded. From an international human rights perspective, an encouraging footnote attached to the Atkins opinion acknowledged that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."

On 1 March 2005, the US Supreme Court removed another category of defendant from the reach of the death penalty, namely children. In Roper v. Simmons, a majority of five Justices to four brought the USA into compliance with "the overwhelming weight of international opinion against the juvenile death penalty."

The Court "affirmed the necessity of referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual". In finding that the death penalty against offenders who were under 18 years old at the time of the crime was indeed excessive, the Roper majority quoted the Atkins decision: "Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution".

The Atkins and Roper decisions cannot but leave a question mark over another category of offender, namely the mentally ill. If the diminished culpability associated with youth and mental retardation render the death penalty an excessive punishment when used against offenders from those categories, what about people suffering from serious mental disorder other than retardation, such as serious brain damage, at the time of the crime? Should they not also be ineligible for execution? Justice Stevens, writing for the Supreme Court majority in Atkins, concluded that:

"Mentally retarded persons… have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct that others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan…Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."

While mental retardation and mental illness are not the same, the analysis given in the Atkins ruling nevertheless could be applied to the latter. For example, a mentally ill person’s delusional beliefs may cause them to engage in illogical reasoning and to act on impulse. A former President of the American Psychiatric Association wrote following the Atkins decision that:
"… the mentally ill suffer from many of the same limitations that, in Justice Stevens’ words, ‘do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability".

Some judges in the USA have already recognized this fundamental inconsistency. In July 2003, for example, Judge Robert Henry on the US Court of Appeals for the 10th Circuit noted the Atkins ruling, and concluded that the imposition of the death penalty against Robert Bryan, a mentally ill Oklahoma death row inmate, "contributes nothing" to the goals of retribution and deterrence. Although Judge Henry was joined by three other judges on the court, it was not enough to stop Robert Bryan going to his execution in June 2004. In similar vein in September 2002, Justice Robert Rucker of the Indiana Supreme Court dissented against the death sentence of Joseph Corcoran, an Indiana inmate suffering from mental illness including schizophrenia. Justice Rucker drew attention to the Atkins decision:

"I respectfully dissent because I do not believe a sentence of death is appropriate for a person suffering a severe mental illness. Recently the Supreme Court held that the executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment of the United States Constitution. There has been no argument in this case that Corcoran is mentally retarded. However, the underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill, namely evolving standards of decency".

Washington State Bar Assocication's Death Penalty Subcommittee's Report

2007-01-26T12:43:00.000-08:00

Death Penalty Subcommittee of the Committee on Public Defense Final Report
The Death Penalty Subcommittee of the Committee on Public Defense has issued its Final Report. It will be submitted to the WSBA Board of Governors along with the full report of the Committee on Public Defense at the Board meeting on March 2 – 3, 2007. The Death Penalty Subcommittee Report discusses how the death penalty has operated in Washington, the costs of death penalty cases, and compensation of attorneys in death penalty cases. It makes nine recommendations regarding the death penalty in Washington.

Read Full Report: http://www.wsba.org/lawyers/groups/finalreport.pdf

Study Bill--Read the results of the NJ Death Penalty Comm study

2007-01-26T11:19:00.000-08:00

We have introduced a bill to undertake a study of Washington's death penalty. A similar study group was formed in New Jersey and recently complete their report.

The NJ Commission recommended abolishing the death penalty and replacing it with life without parole. You can read their report here:

http://www.njleg.state.nj.us/committees/dpsc_final.pdf

Why We Should Not Kill Severely Mentally Ill Persons

2007-01-26T10:21:00.000-08:00

Excerpts from a law review article:

Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime--not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. The following day, the same judge sentenced Jamie to death.

The most common reaction to Jamie's story, regardless of the death penalty views of the audience, is "What?" At the very least, it is counterintuitive to kill someone for behavior he was powerless to avoid. Whether a practice is unconstitutional, of course, is hardly determined by whether it is sensible, and the South Carolina Supreme Court has held that, sensible or not, it is constitutional. In so holding, the fact that no other defendant--in South Carolina or any other state--has ever been sentenced to death after the factfinder determined that he lacked volitional control did not sway the court.

Austin American-Statesman Editorial on Patterson and Mentally Ill Defendants

2007-01-25T16:46:00.000-08:00

Finding justice for mentally ill defendants

Written by: Editorial Board, Austin American-Statesman

May 10, 2004: Austin American-Statesman

Finding justice for mentally ill defendants

There is little doubt that Texas will execute Kelsey Patterson on May 18 if left to its own devices. Neither is there doubt that Patterson is guilty of murdering two East Texans. Even so, this case never should have reached this point, given that Patterson is severely mentally ill.In 1992, Patterson was wandering the streets with a hand gun when he happened upon Louis Oates, a Palestine businessman, and fatally shot him. When Oates' secretary ran out from the office, Patterson also killed her. Patterson, who lived in the same town, barely knew them.
Following the shootings, he walked back to his nearby home, stripped to his socks and walked naked in the streets until police arrived. Prosecutors have yet to establish a motive in the double homicide.

Patterson was in and out of state mental hospitals during the 1980s following random acts of violence linked to schizophrenia when he failed to take his medication. He was released after being subdued with medication and treatment. The system would restart.

His case reveals anew a deep breach in the justice system and a breakdown in the state's mental health system. After the first relapse, Patterson should have been committed long term, or at the minimum, been watched closely. Patterson's claim of being a paranoid schizophrenic is not a ruse. The history and evidence of his mental illness is so compelling that it troubled one of the most conservative members of the 5th U.S. Circuit Court of Appeals."What are we doing here?" Judge Edith Jones asked Assistant Attorney General Gina Bunn, who defended the state's decision to execute Patterson before a panel of the federal court. "This is a very sick man."

The cycle of violence exhibited in Patterson's case is all too familiar. We recently heard the tragic story of a Beaumont man, Kenneth Lee Pierott, charged with murder in the asphyxiation of a 6-year-old boy in an oven, six years after a jury found the Pierott innocent by reason of insanity of beating his disabled sister to death. Deanna Laney, a Tyler mother, was found innocent of murdering two of her three children because she was insane. And there is the case of University of Texas graduate student Jackson Ngai, who is accused of using a meat cleaver to kill a UT professor. Ngai told police he was trying to remove a computer chip from her brain.

Obviously, the system is failing. A legislative committee is studying whether to revise Texas law so that a jury could find such people guilty but insane, allowing severely mentally ill people to be closely supervised and treated in secure settings. That won't satisfy everyone. But it is surely better than executing mentally ill people who repeatedly commit violent crimes or locking them away in regular prisons without adequate treatment. In Patterson's case, lawyers are scrambling to win an appeal, or at least a stay, asserting that Patterson is legally incompetent to be executed. He was found to be sane at the time of his 1992 crime by an East Texas court that sentenced him to death. Patterson believes that a foreign device, implanted in his body, is being used by evil forces to control him and do him harm. The conspiracy against him takes the form of the "hell pledge" inscribed in a secret book. And nearly everyone, from the judges and doctors affiliated with his case to the lawyers who represent him, are "hell workers."Patterson believes their purpose is to carry out the pledge against him, and consequently, has refused to cooperate with mental health experts and his lawyers.

His fate now rests with federal courts. It's clear that executing him won't resolve the issue of how to protect society from severely mentally ill people who turn violent. That is an issue for the Legislature.

Addendum: Patterson was executed on May 18, 2004, despite a recommendation for clemency. The system can just as easily fail here, which is why we need legislation.

Executing the Mentally Ill Article from Amnesty International Magazine, Fall 2005

2007-01-25T16:38:00.000-08:00

Cruel and Inhumane
Executing the Mentally Ill

Recent U.S. Supreme Court rulings barring executions of juvenile offenders and people with mental retardation have given death penalty opponents hope that the mentally ill may someday also be spared. But the issue raises difficult questions for lawmakers and courts.

By Dan Malone

Dan Malone, a staff writer at Fort Worth Weekly, is co-author of America's Condemned: Death Row Inmates in Their Own Words (Andrews McMeel, 1999).

Little about Kelsey Patterson's disturbing life made sense. He was repeatedly arrested for a series of increasingly violent assaults and shootings, repeatedly diagnosed as mentally ill, repeatedly admitted to mental institutions and repeatedly released-only to be arrested yet again for another act of senseless violence.
He was arrested for the final time on a warm September afternoon in east Texas in 1992. Police found Patterson walking naked down the street near his home, mumbling and gesturing to people along the way. No clear motive for his crime-a double murder-was ever established. A jury subsequently sentenced him to death.
During his 12 years on Texas' death row, Patterson, who was first diagnosed as a paranoid schizophrenic in 1981, frequently complained about a remote control device implanted in his body, refused to cooperate with his lawyers and insisted until his death that he had received a permanent stay of execution. As he lay strapped to a gurney in the death house, he responded "state what" when asked if he had a final statement, then launched into an incoherent, profane ramble, his last words as confusing as the jumble of his 50 years of life.
Today, a little more than a year after his execution, advocates for the mentally ill contend that the execution of Patterson and other mentally ill prisoners make even less sense than the gnarled paths of their lives.
Two recent U.S. Supreme Court rulings barring executions of juvenile offenders and people with mental retardation have given death penalty opponents hope that others with diminished capacity for judgment will also be spared the fate of a punishment they may not even comprehend. In both decisions the Court sought to bring current state practice in line with "evolving standards of decency." Some experts believe the recent rulings have bolstered the legal basis for protecting the mentally ill.
"It all has to do with their ability to form what we consider to be adult conceptions of morality and responsibility," says Bill Harris, a Texas attorney who represented Larry Keith Robison, a schizophrenic who was executed in 2001 for killing five people during a psychotic episode nearly 20 years earlier. "If you say it's cruel and unusual to execute the mentally retarded because they can't perform on an adult level, and then you say the same thing about people who are mentally normal but because of their age you can't execute them, it makes sense to extend that to mental illness."
"If it impairs their ability to make those kind of moral judgments, they should also be, logically, exempt."
On March 1 the Supreme Court categorically banned the death penalty for juvenile offenders under age 18 in Roper v. Simmons. By the time the Court heard the case of Christopher Simmons, a Missouri inmate who had been sentenced to death for a murder he committed when he was 17 year old, 30 states had already banned the practice and most others had turned their backs on it. The decision did, however, overturn the sentences of 72 death row inmates in 12 states who were convicted of committing crimes as teenagers. (The death penalty for federal crimes was forbidden for offenders under the age of 18.)
Juveniles, the court said, are vulnerable and lack the maturity and fully developed character of adults. "Their own vulnerability and comparative lack of control over their immediate surroundings mean that juveniles have a greater claim than adults to be forgiven?" That majority opinion also cited an emergent national consensus, and significantly, an international one that left the United States "alone in a world that has turned its face against the juvenile death penalty."
The Simmons challenge followed another milestone Supreme Court decision, Atkins v. Virginia, which banned the execution of those with mental retardation. The 2002 ruling dealt with the case of Daryl Renard Atkins, who was sentenced to die in Virginia for the 1996 murder of Eric Nesbitt, a 21-year-old U.S. airman. Testimony about Atkins' mental abilities conflicted wildly. Defense witnesses told jurors Atkins was "mildly mentally retarded" and functioned at the level of a 9- to 12-year-old. A prosecution expert countered that Atkins suffered from a antisocial personality disorder and was of "average intelligence, at least." The Court banned the execution of those with mental retardation, citing a "dramatic shift" in how state law dealt with offenders with mental retardation- close to 20 states had already revised their laws to end executions of mentally retarded offenders. And officials in the remaining states had executed only a handful of persons with mental retardation since the late 1980s. However, while the Supreme Court sided with Atkins' lawyers in ruling that executing those with mental retardation is unconstitutionally cruel, the Court did not decide whether Atkins has a mental disability. That determination was left to the commonwealth of Virginia, and, at press time, Atkins was on trial to establish his IQ.
Execution of severely mentally retarded people, wrote Justice John Paul Stevens in Atkins v. Virginia, "has become truly unusual, and it is fair to say that a national consensus has developed against it."
Neither ruling specifically addressed mental illness. But Victor Streib, an Ohio Northern University law professor who was quoted 11 times by the Supreme Court in the case barring juvenile executions, also believes that mentally ill prisoners should not be subjected to the death penalty.
"The general public too often assumes that only the seriousness of the crime is relevant to the punishment, but the (Supreme) Court has repeatedly held that both the serious(ness) of the crime and the character and background of the defendant must be considered in the sentencing decision," he said.
"If certain mentally ill defendants think and act like juveniles or the mentally retarded, then they should be excluded from death row."
In practice, applying the Simmons ruling on juveniles is straightforward. "With juveniles, you are either 18 or you're not," says Gary Hart, the Texas attorney who represented Kelsey Patterson in his final appeals.
Mental retardation is thornier territory. "There is a misrepresentation that since Atkins had been handed down there is no longer any danger of people with mental retardation being executed," says Ronald Tabak, a New York attorney who serves on a task force, created by the American Bar Association (ABA) Section of Individual Rights and Responsibilities, that is examining capital punishment for mentally ill defendants. "In fact, it's a great danger. I'd say it's a certainty." Lawyers for some capital defendants never discover that their clients have mental retardation, while others may know the condition exists but lack the resources to prove it. Some states even lack a clear definition of mental retardation or a process for raising it during the various stages of a trial.
Extending protection to the mentally ill could prove to be even more complicated. "With mental retardation, there is at least some agreement about what constitutes mental retardation. With mental illness, you've got such a wide spectrum, everything from depression to bi-polar to post-traumatic stress syndrome, to paranoid schizophrenia. It's a much more difficult thing to know where and how to draw the line," says Hart.
"I'm not sure I would know how to draw the line," he says.
The prospect of drawing any lines with regard to mental illness raises daunting questions: What sort of mental illnesses might qualify accused killers the same protections given to juveniles and those with mental retardation? How many people would be affected by such a prohibition? What sort of changes would be needed in state law for such a prohibition to be imposed? And what about those prisoners who might have been sane when they committed their crimes but became mentally ill during years or decades they spent on death row?
The ABA task force has come up with several proposals that have won endorsements from professional organizations such as the National Alliance for the Mentally Ill, the American Psychological Association and the American Psychiatric Association.
One proposal would protect from capital punishment those with serious mental illnesses, such as schizophrenia, that significantly impaired their ability to reason at the time of their crime. These prisoners are, according to Tabak, "categorically less culpable than so-called average murderers."
Another set of proposals addresses situations in which mental illness precludes condemned prisoners from assisting in their own defenses, causes them to waive their appeals or prevents those facing imminent execution unable to understand what is about to happen to them, or why.
"We are not trying to excuse the misconduct of these people," Tabak explains. "If we were trying to do that, we wouldn't allow them to be punished at all." But, he says, "the extent of blameworthiness, the extent to which they can be held among what's sometimes called 'the worst of the worst,' is diminished by their mental illness."
Opponents to the proposal contend that mentally ill people are sufficiently protected under existing law.
"Someone who commits a crime because of mental illness-who didn't know right from wrong or didn't know what they were doing-is going to be found not guilty by reason of insanity," says Larry Cunningham, a former prosecutor for the commonwealth of Virginia and law professor at Texas Tech and Texas Wesleyan Universities. "If a mentally ill individual has been found guilty and received the death penalty, they probably presented the insanity defense and lost."
Attorneys for a person convicted of a capital crime can still argue during a trial's punishment phase that a client is more deserving of a life sentence than the death penalty because of their mental illness.
"It's better to let a jury decide as we do right now," Cunningham says.
"Should crazy people be executed?" asks Joshua Marquis, district attorney of Clatsop County, Ore., and the chairman of the capital litigation committee of the National Association of District Attorneys. "The accepted answer to that is no."
But arguing that mentally ill offenders should be treated like juveniles or people with mental retardation is, he says, an "incredibly incremental abolitionist argument.'
"The vast majority of people on death row suffer from a mental disorder of some kind," Marquis said. "If you define it that way, nobody would ever be given the death penalty. It creates a standard that would effectively exempt anyone."
Theoretically, some of the most severely mentally ill inmates are protected by a 1986 Supreme Court ruling, Ford v. Wainwright, that forbids capital punishment of those who are so insane that they cannot comprehend their impending execution or the reasons for it. Citing the Eighth Amendment, the decision blocked Florida from executing Alvin Ford, a man convicted of murder who became insane while on death row. Justice Lewis Powell drew his own line, reasoning that the Constitution protected only those who are so insane that they are "unaware of the punishment they are about to suffer and why they are to suffer it. Justice Powell concluded that Florida could execute Ford if he became sane again, presenting a cruel irony: death row inmates who become insane must remain insane to avoid execution. Moreover, the Ford decision left the determination of sanity up to each state and herein lies the heart of the problem.
At the time of the ruling, about a dozen of more than 1,700 death row inmates had insanity assertions made on their behalf, according to the New York Times. Today, it is difficult to say with any certainty how many on death row are mentally ill. The American Civil Liberties Union estimates that up to 10 percent of the more than 3,400 inmates on the nation's death rows have a serious mental illness. Other research conducted in the mid 1990s indicates the problem could be much larger. The Dallas Morning News reported in 1997 that one-third of 602 death row inmates nationwide who responded to the newspaper's questionnaire had been treated for psychiatric problems ranging from suicide and depression to anti-social behavior and sexual problems.
Whatever the actual numbers might be, mental health experts believe that many mentally ill prisoners would never have made it to death row in the first place if they had been able to find treatment when they were free.
Texas executed on March 26, 2003, James Blake Colburn, a 43-year-old mentally ill man who heard voices and worried about demons defiling his corpse, despite his failed, repeated attempts to get help before he murdered Peggy Murphy. "We begged for help," his sister, Tina Duroy told Amnesty International a year before his execution. "He himself wanted help, and they ... just pushed him out on the street."
The state of Texas, which ranks number one in number of people executed, ranked 46th among the states for amount of money spent per person on the treatment of the mentally ill, including in jails and prisons, according to the National Association of State Mental Health Program Directors.
Amnesty International is beginning to collect data from death row states about mental health spending and the number of mentally ill condemned prisoners. AI researchers are also investigating cases in which families of mentally ill death row inmates tried long ago to get help but were denied because they didn't have the funds or the right insurance.
Sue Gunawardena-Vaughn, director of Amnesty International USA's Program to Abolish the Death Penalty, says states need to "put more money into mental health care so those crimes don't happen in the first place."
The failure to adequately fund mental health services throughout the states imperils more than just the mentally ill, said Hazel Moran of the National Mental Health Association. Every mentally ill person behind bars leaves victims — living or dead — in the free world.
Lot of people are winding up in the criminal justice system because mental health services are not available," she said. "Because the mental health system does not have the resources, a person doesn't have the opportunity to get better and, as a result, they wind up following a path that leads to a bad outcome.
"We think that's a systemic failure."
Gunawardena-Vaughn echoes that belief.
"A society that denies mental health care to those who need it the most and then subsequently executes them is cruel and inhumane at its very core. All of us need to be asking, 'Is this the kind of society that we envision for ourselves?' My answer is that we can and must do better."

National Alliance on Mental Illness (NAMI)

2007-01-25T16:33:00.000-08:00

http://www.nami.org/

American Bar Association Resolution 122A

2007-01-25T16:28:00.000-08:00

AMERICAN BAR ASSOCIATION SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIESCRIMINAL JUSTICE SECTIONCOMMISSION ON MENTAL AND PHYSICAL DISABILITY LAW
ABA DEATH PENALTY MORATORIUM IMPLEMENTATION PROJECT
ABA DEATH PENALTY REPRESENTATION PROJECT
BEVERLY HILLS BAR ASSOCIATIONRECOMMENDATION

RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to implement the following policies and procedures:
1. Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.
2. Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision.
3. Mental Disorder or Disability after Sentencing
(a) Grounds for Precluding Execution. A sentence of death should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity (i) to make a rational decision to forgo or terminate post-conviction proceedings available to challenge the validity of the conviction or sentence; (ii) to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner's participation; or (iii) to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case. Procedures to be followed in each of these categories of cases are specified in (b) through (d) below.
(b) Procedure in Cases Involving Prisoners Seeking to Forgo or Terminate Post-Conviction Proceedings. If a court finds that a prisoner under sentence of death who
wishes to forgo or terminate post-conviction proceedings has a mental disorder or disability that significantly impairs his or her capacity to make a rational decision, the court should permit a next friend acting on the prisoner's behalf to initiate or pursue available remedies to set aside the conviction or death sentence.
(c) Procedure in Cases Involving Prisoners Unable to Assist Counsel in Post-Conviction Proceedings. If a court finds at any time that a prisoner under sentence of death has a mental disorder or disability that significantly impairs his or her capacity to understand or communicate pertinent information, or otherwise to assist counsel, in connection with post-conviction proceedings, and that the prisoner's participation is necessary for a fair resolution of specific claims bearing on the validity of the conviction or death sentence, the court should suspend the proceedings. If the court finds that there is no significant likelihood of restoring the prisoner's capacity to participate in post-conviction proceedings in the foreseeable future, it should reduce the prisoner's sentence to the sentence imposed in capital cases when execution is not an option.
(d) Procedure in Cases Involving Prisoners Unable to Understand the Punishment or its Purpose. If, after challenges to the validity of the conviction and death sentence have been exhausted and execution has been scheduled, a court finds that a prisoner has a mental disorder or disability that significantly impairs his or her capacity to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case, the sentence of death should be reduced to the sentence imposed in capital cases when execution is not an option.
REPORT
PREAMBLE
In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that execution of people with mental retardation violates the Eighth Amendment's ban on cruel and unusual punishment. The Individual Rights and Responsibilities Section of the American Bar Association recognized that Atkins offered a timely opportunity to consider the extent, if any, to which other types of impaired mental conditions ought to lead to exemption from the death penalty. To achieve that objective, the Section established a Task Force on Mental Disability and the Death Penalty. The Task Force, which carried out its deliberations from April, 2003 to March, 2005, was composed of 24 lawyers and mental health professionals (both practitioners and academics), and included members of the American Psychiatric Association and the American Psychological Association.[1] The American Psychiatric Association[2] and the American Psychological Association[3] have officially endorsed the Task Force's proposal.[4] The following commentary discusses the three paragraphs of the proposal.
PARAGRAPH 1:
Paragraph 1 of the Recommendation is meant to exempt from the death penalty persons charged with capital offenses who have significant limitations in both intellectual functioning and adaptive skills. Its primary purpose is to implement the United States Supreme Court's holding in Atkins v. Virginia,[5] which declared that execution of offenders with mental retardation violates the cruel and unusual punishment prohibition in the Eighth Amendment. The Court based this decision both on a determination that a "national consensus" had been reached that people with mental retardation should not be executed,[6] and on its own conclusion that people with retardation who kill are not as culpable or deterrable as the "average murderer," much less the type of murderer for whom the death penalty may be viewed as justifiable.[7]
While the Atkins Court clearly prohibited execution of people with mental retardation, it did not define that term. The Recommendation embraces the language most recently endorsed by the American Association of Mental Retardation, which defines mental retardation as a disability originating before the age of eighteen that is "characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills."[8] The language of the Recommendation is also consistent with the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, which defines a person as mentally retarded if, before the age of 18, he or she exhibits "significantly subaverage intellectual functioning" (defined as "an IQ of approximately 70 or below") and "concurrent deficits or impairments in present adaptive functioning . . . in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety."[9] Both of these definitions were referenced (albeit not explicitly endorsed) by the Supreme Court in Atkins, and both have been models for states that have defined retardation for purposes of the death penalty exemption.[10] Both capture the universe of people who, if involved in crime, Atkins describes as less culpable and less deterrable than the "average murderer." As the APA's Diagnostic and Statistical Manual indicates, even a person with only "mild" mental retardation, as that term is defined in the Manual, has a mental age below that of a teenager.[11]
The language in this part of the Recommendation is also meant to encompass dementia and traumatic brain injury, disabilities very similar to mental retardation in their impact on intellectual and adaptive functioning except that they always (in the case of dementia) or often (in the case of head injury) are manifested after age eighteen. Dementia resulting from the aging process is generally progressive and irreversible, and is associated with a number of deficits in intellectual and adaptive functioning, such as agnosia (failure to recognize or identify objects) and disturbances in executive functioning connected with planning, organizing, sequencing, and abstracting.[12] The same symptoms can be experienced by people with serious brain injury. Of course, people with dementia or a traumatic head injury severe enough to result in "significant limitations in both intellectual functioning or adaptive behavior" rarely commit capital offenses. If they do, however, the reasoning in Atkins should apply and an exemption from the death penalty is warranted, because the only significant characteristic that differentiates these severe disabilities from mental retardation is the age of onset.[13]

PARAGRAPH 2:
Paragraph 2 of the Recommendation is meant to prohibit execution of persons with severe mental disabilities whose demonstrated impairments of mental and emotional functioning at the time of the offense would render a death sentence disproportionate to their culpability. The Recommendation uses the phrase "disorder or disability" because, even though those words are often used interchangeably, some prefer one over the other. The Recommendation indicates that only those individuals with "severe" disorders or disabilities are to be exempted from the death penalty, and it specifically excludes from the exemption those diagnosed with conditions that are primarily manifested by criminal behavior and those whose abuse of psychoactive substances, standing alone, renders them impaired at the time of the offense.
Rationale: This part of the Recommendation is based on long-established principles of Anglo-American law that the Supreme Court recognized and embraced in Atkins and recently affirmed in Roper v. Simmons,[14] in which it held that the execution of juveniles who commit crimes while under the age of eighteen is prohibited by the Eighth Amendment. In reaching its holding in Atkins, the Court emphasized that execution of people with mental retardation is inconsistent with both the retributive and deterrent functions of the death penalty. More specifically, as noted above, it held that people with mental retardation who kill are both less culpable and less deterrable than the average murderer, because of their "diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others."[15] As the Court noted, "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution."[16] Similarly, with respect to deterrence, the Court stated, "[e]xempting the mentally retarded from [the death penalty] will not affect the 'cold calculus that precedes the decision' of other potential murderers."[17]
The Court made analogous observations in Simmons. With respect to culpability, the Court stated:
Whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.[18]
On the deterrence issue it said, "'[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.'"[19]
The same reasoning applies to people who, in the words of the Recommendation, have a "severe mental disorder or disability" that, at the time of the offense: "significantly impaired their capacity" (1) "to appreciate the nature, consequences, or wrongfulness of their conduct"; (2) "to exercise rational judgment in relation to the conduct"; or (3) "to conform their conduct to the requirements of law." Offenders who meet these requirements, even if found sane at trial, are not as culpable or deterrable as the average offender. A close examination of this part of the Recommendation makes clear why this is so.
The Severe Mental Disorder or Disability Requirement. First, the predicate for exclusion from capital punishment under this part of the Recommendation is that offenders have a "severe" disorder or disability, which is meant to signify a disorder that is roughly equivalent to disorders that mental health professionals would consider the most serious "Axis I diagnoses."[20] These disorders include schizophrenia and other psychotic disorders, mania, major depressive disorder, and dissociative disorders – with schizophrenia being by far the most common disorder seen in capital defendants. In their acute state, all of these disorders are typically associated with delusions (fixed, clearly false beliefs), hallucinations (clearly erroneous perceptions of reality), extremely disorganized thinking, or very significant disruption of consciousness, memory and perception of the environment.[21] Some conditions that are not considered an Axis I condition might also, on rare occasions, become "severe" as that word is used in this Recommendation. For instance, some persons whose predominant diagnosis is a personality disorder, which is an Axis II disorder, may at times experience more significant dysfunction. Thus, people with borderline personality disorder can experience "psychotic-like symptoms ... during times of stress."[22] However, only if these more serious symptoms occur at the time of the capital offense would the predicate for this Recommendation's exemption be present.
The Significant Impairment Requirement. To ensure that the exemption only applies to offenders less culpable and less deterrable than the average murderer, this part of the Recommendation further requires that the disorder significantly impair cognitive or volitional functioning at the time of the offense. Atkins held the death penalty excessive for every person with mental retardation, and the Supreme Court therefore dispensed with a case-by-case assessment of responsibility. However, for the disorders covered by this second part of the Recommendation, preclusion of a death sentence based on diagnosis alone would not be sensible, because the symptoms of these disorders are much more variable than those associated with retardation or the other disabilities covered by the Recommendation's first paragraph.
The first specific type of impairment that this part of the Recommendation recognizes as a basis for exemption from the death penalty (if there was a severe disorder at the time of the offense) is a significant incapacity "to appreciate the nature, consequences, or wrongfulness" of the conduct associated with the offense (section (a)). This provision is meant to encompass those individuals with severe disorder who have serious difficulty appreciating the wrongfulness of their criminal conduct. For instance, people who, because of psychosis, erroneously perceived their victims to be threatening them with serious harm would be covered by this language,[23] as would delusional offenders who believed that God had ordered them to commit the offense.[24]
Section (a) also refers to offenders who fail to appreciate the "nature and consequences" of the crime. This language would clearly apply to offenders who, because of severe disorder or disability, did not intend to engage in the conduct constituting the crime or were unaware they were committing it.[25] It would also apply to delusional offenders who intended to commit the crime and knew that the conduct was wrongful, but experienced confusion and self-referential thinking that prevented them from recognizing its full ramifications. For example, a person who experiences delusional beliefs that electric power lines are implanting demonic curses, and thus comes to believe that he or she must blow up a city's power station, might understand that destruction of property and taking the law into one's own hands is wrong but might nonetheless fail to appreciate that the act would harm and perhaps kill those who relied on the electricity.
The second type of impairment recognized as a basis for exemption from the death penalty under this part of the Recommendation (in section (b)) is a significant incapacity "to exercise rational judgment in relation to the conduct" at the time of the crime. Numerous commentators have argued that irrationality is the core determinant of diminished responsibility.[26] As used by these commentators, and as made clear by the Recommendation's threshold requirement of severe mental disability, "irrational" judgment in this context does not mean "inaccurate," "unusual" or "bad" judgment. Rather, it refers to the type of disoriented, incoherent and delusional thinking that only people with serious mental disability experience. Furthermore, as noted above, the Recommendation requires that the irrationality occur in connection with the offense, rather than simply have existed prior to the criminal conduct.
Under these conditions, offenders who come within section (b) would often also fail to appreciate the "nature, consequences, or wrongfulness" of their conduct. But there is a subset of severely impaired individuals who may not meet the latter test and yet who should still be exempted from the death penalty because they are clearly not as culpable or deterrable as the average murderer. For instance, a jury rejected Andrea Yates' insanity defense despite strong evidence of psychosis at the time she drowned her five children. Apparently, the jury believed that, even though her delusions existed at the time of the offense, she could still appreciate the wrongfulness (and maybe even the fatal consequences) of her acts. Yet that same jury spared Yates the death penalty, probably because it believed her serious mental disorder significantly impaired her ability to exercise rational judgment in relation to the conduct.[27]
The third and final type of offense-related impairment recognized as a basis for exemption from the death penalty by this part of the Recommendation is a significant incapacity "to conform [one's] conduct to the requirements of law" (section (c)). Most people who meet this definition will probably also experience significant cognitive impairment at the time of the crime. However, some may not. For example, people who have a mood disorder with psychotic features might understand the wrongfulness of their acts and their consequences, but nonetheless feel impervious to punishment because of delusion-inspired grandiosity.[28] Because a large number of offenders can make plausible claims that they felt compelled to commit their crime, however, enforcement of the Recommendation's requirement that impairment arise from a "severe" disorder is especially important here.
Exclusions. In addition to the severe disability threshold and the requirement of significant cognitive or volitional impairment at the time of the offense, a third way this part of the Recommendation assures that those it exempts from the death penalty are less culpable and deterrable than the average murderer is to exclude explicitly from its coverage those offenders whose disorder is "manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs." The Recommendation's reference to mental disorders "manifested primarily by repeated criminal conduct" is meant to deny the death penalty exemption to those offenders whose only diagnosis is Antisocial Personality Disorder.[29] This language is virtually identical to language in the Model Penal Code's insanity formulation, which was designed to achieve the same purpose.[30] However, the Recommendation uses the word "primarily" where the MPC uses the word "solely" because Antisocial Personality Disorder consists of a number of symptom traits in addition to antisocial behavior, and therefore the MPC language does not achieve its intended effect. Compared to the MPC's provision, then, the Recommendation's language broadens the category of offenders whose responsibility is not considered sufficiently diminished to warrant exemption from capital punishment.
Similarly, the Recommendation denies the death penalty exemption to those offenders who lack appreciation or control of their actions at the time of the offense due "solely to the acute effects of voluntary use of alcohol or other drugs." Substance abuse often plays a role in crime. When voluntary ingestion of psychoactive substances compromises an offender's cognitive or volitional capacities, the law sometimes is willing to reduce the grade of offense at trial, especially in murder cases,[31] and evidence of intoxication should certainly be taken into account if it is offered in mitigation in a capital sentencing proceeding.[32] However, in light of the wide variability in the effects of alcohol and other drugs on mental and emotional functioning, voluntary intoxication alone does not warrant an automatic exclusion from the death penalty.[33] At the same time, this Recommendation is not meant to prevent exemption from the death penalty for those offenders whose substance abuse has caused organic brain disorders or who have other serious disorders that, in combination with the acute effects of substance abuse, significantly impaired appreciation or control at the time of the offense.[34]
How This Recommendation Relates to the Insanity Defense. The language proposed in this part of the Recommendation is similar to modern formulations of the insanity defense.[35] Nonetheless, in light of the narrow reach of the defense in most states (and its abolition in a few),[36] many offenders who meet these criteria will still be convicted rather than acquitted by reason of insanity. Even in those states with insanity formulations that are very similar to the Recommendation's language, these individuals might be convicted, for a whole host of reasons;[37] in such cases, the Recommendation would require juries and judges to consider whether cognitive and volitional impairment removes the defendant from being among the most morally culpable offenders. This approach rests on the traditional understanding that significant cognitive or volitional impairment attributable to a severe disorder or disability often renders the death penalty disproportionate to the defendant's culpability, even though the offender may still be held accountable for the crime.[38] It also underlies the various formulations of diminished responsibility that predated the contemporary generation of capital sentencing statutes.[39]
How This Recommendation Relates to Mitigating Factors. This part of the Recommendation sets up, in effect, a conclusive "defense" against the death penalty for capital defendants who can demonstrate the requisite level of impairment due to severe disorder at the time of the offense. However, the criteria in the Recommendation do not exhaust the relevance of mental disorder or disability in capital sentencing. Those offenders whose mental disorder or disability at the time of the offense was not severe or did not cause one of the enumerated impairments would still be entitled to argue that their mental dysfunction is a mitigating factor, to be considered with aggravating factors and other mitigating factors in determining whether capital punishment should be imposed.[40]
PARAGRAPH 3:
This paragraph of the Recommendation is meant to address three different circumstances under which concerns about a prisoner's mental competence and suitability for execution arise after the prisoner has been sentenced to death. Subpart (a) states that execution should be precluded when a prisoner lacks the capacity (i) to make a rational decision regarding whether to pursue post-conviction proceedings, (ii) to assist counsel in post-conviction adjudication, or (iii) to appreciate the meaning or purpose of an impending execution. The succeeding subparts spell out the conditions under which execution should be barred in these three situations.
Prisoners Seeking to Forgo or Terminate Post-Conviction Proceedings. The United States Supreme Court has ruled that a competent prisoner is entitled to forgo available appeals.[41] If the prisoner is not competent, the standard procedure is to allow a so-called "next friend" (including the attorney) to pursue direct appeal and collateral proceedings aiming to set aside the conviction or sentence. Subpart 3(b) of the Recommendation addresses the definition of competence in such cases, providing that a next friend petition should be allowed when the prisoner has a mental disorder or disability "that significantly impairs his or her capacity to make a rational decision."
Reportedly, 13% of the prisoners executed in the post-Gregg era have been so-called "volunteers."[42] Any meaningful competence inquiry in this context must focus not only on the prisoner's understanding of the consequences of the decision, but also on his or her reasons for wanting to surrender, and on the rationality of the prisoner's thinking and reasoning. In Rees v. Peyton,[43] the U.S. Supreme Court instructed the lower court to determine whether the prisoner had the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether the prisoner is suffering from a mental disease, disorder or defect which may substantially affect his capacity in the premises."[44] Unfortunately, the two alternative findings mentioned by the Court are not mutually exclusive – a person with a mental disorder that "affects" his or her decision-making may nonetheless be able to appreciate his or her position and make a "rational" choice. For this reason, the lower courts have integrated the Rees formula into a three-step test: (1) does the prisoner have a mental disorder? (2) if so, does this condition prevent the prisoner from understanding his or her legal position and the options available to the prisoner? (3) even if understanding is unimpaired, does the condition nonetheless prevent the prisoner from making a rational choice among the options?[45]
Because the courts have adopted a fairly broad conception of mental disorder (the first step) and the prisoner's understanding of his or her "legal position" (the second step) is hardly ever in doubt in these cases, virtually all the work under the Rees test is done by the third step.[46] Conceptually, the question is relatively straightforward – is the prisoner's decision attributable to the mental disorder or to "rational choice"?
Unequivocal cases of irrationality rarely arise. For example, if an offender suffering from schizophrenia tells his or her attorney to forgo appeals because the future of civilization depends upon the offender's death,[47] the "reason" for the prisoner's choice can comfortably be attributed to the psychotic symptom. However, decisions rooted in delusions are atypical in these cases. The usual case involves articulated reasons that may seem "rational" under the circumstances, such as (a) a desire to take responsibility for one's actions and a belief that one deserves the death penalty or (b) a preference for the death penalty over life imprisonment. The cases that give the courts the most trouble are those in which such apparently "rational" reasons are intertwined with emotional distress (especially depression), feelings of guilt and remorse, and hopelessness. In many cases, choices that may otherwise seem "rational" may be rooted in suicidal motivations. Assuming, for example, that the prisoner is depressed and suicidal but has a genuine desire to take responsibility, how is one to say which motivation "predominates"?
John Blume has studied the prevalence of significant mental disorder among the 106 prisoners who have volunteered for execution. According to Blume, 14 of the "volunteers" had recorded diagnoses of schizophrenia, 23 had recorded diagnoses of depression or bipolar disorder, 10 had records of PTSD, 4 had diagnoses of borderline personality disorder and 2 had been diagnosed with multiple personality disorder. Another 12 had unspecified histories of "mental illness."[48] Given this high prevalence of mental illness, the courts should be more willing than they now are to acknowledge suicidal motivations when they are evident and should be more inclined than they are now to attribute suicidal motivations to mental illness when the clinical evidence of such a link is convincing. The third step of the Rees test would then amount to the following: Is the prisoner who seeks execution able to give plausible reasons for doing so that are clearly not grounded in symptoms of mental disorder?[49] Given the stakes of the decision, a relatively high degree of rationality ought to be required in order to find people competent to make decisions to abandon proceedings concerning the validity of a death sentence.[50]
Prisoners Unable to Assist Counsel in Post-Conviction Proceedings. Subpart 3(c) of the Recommendation addresses the circumstances under which impaired competence to participate in adjudication should affect the initiation or continuation of post-conviction proceedings. The law in this area is both undeveloped and uncertain in many respects. However, some principles have begun to emerge.
Under the laws of many states and the federal Anti-Terrorism and Effective Death Penalty Act (AEDPA), collateral proceedings are barred if they are not initiated within a specified period of time. However, it is undisputed that a prisoner's failure to file within the specified time must be excused if such failure was attributable to a mental disability that impaired the prisoner's ability to recognize the basis for, or to take advantage of, possible collateral remedies. Similarly, the prisoner should be able to lodge new claims, or re-litigate previously raised claims, if the newly available evidence upon which the claim would have been based, or that would have been presented during the earlier proceeding relating to the claim, was unavailable to counsel due to the prisoner's mental disorder or disability.[51]
Assuming, however, that collateral proceedings have been initiated in a timely fashion, the more difficult question is whether, and under what circumstances, a prisoner's mental disability should require suspension of the proceedings. Subpart 3(c) provides that courts should suspend post-conviction proceedings upon proof that a prisoner is incompetent to assist counsel in such proceedings and that the prisoner's participation is necessary for fair resolution of a specific claim.
Thorough post-conviction review of the legality of death sentences has become an integral component of modern death penalty law, analogous in some respects to direct review. Any impediment to thorough collateral review undermines the integrity of the review process and therefore of the death sentence itself. Many issues raised in collateral proceedings can be adjudicated without the prisoner's participation, and these matters should be litigated according to customary practice. However, collateral proceedings should be suspended if the prisoner's counsel makes a substantial and particularized showing that the prisoner's impairment would prevent a fair and accurate resolution of specific claims,[52] and subpart 3(c) so provides.
Where the prisoner's incapacity to assist counsel warrants suspension of the collateral proceedings, it should bar execution as well, just as ABA Standards recommend. ABA Standard 7-5.6 provides that prisoners should not be executed if they cannot understand the nature of the pending proceedings or if they "[lack] sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or [lack] the ability to convey such information to counsel or to the court."[53] As the commentary to Standard 7-5.6 indicates, this rule "rests less on sympathy for the sentenced convict than on concern for the integrity of the criminal justice system."[54] Scores of people on death row have been exonerated based on claims of factual innocence, and many more offenders have been removed from death row and given sentences less than death because of subsequent discovery of mitigating evidence. The possibility, however slim, that incompetent individuals may not be able to assist counsel in reconstructing a viable factual or legal claim requires that executions be barred under these circumstances.
Once the post-conviction proceedings have been suspended on grounds of the prisoner's incompetence to assist counsel, should the death sentence remain under an indefinite stay? The situation is analogous to the suspension of criminal proceedings before trial; in that context, the proceedings are typically terminated (and charges are dismissed) after a specified period if a court has found that competence for adjudication is not likely to be restored in the foreseeable future. In the present context, it would be unfair to hold the death sentence in perpetual suspension. A judicial finding that the prisoner's competence to assist counsel is not likely to be restored in the foreseeable future should trigger an automatic reduction of the sentence to the disposition the relevant law imposes on capital offenders when execution is not an option.
Prisoners Unable to Understand the Punishment or its Purpose. In Ford v. Wainwright (1986),[55] the U.S. Supreme Court held that execution of an incompetent prisoner constitutes cruel and unusual punishment proscribed by the Eighth Amendment. Unfortunately, the Court failed to specify a constitutional definition of incompetence or to prescribe the constitutionally required procedures for adjudicating the issue.[56] The Court also failed to set forth a definitive rationale for its holding that might have helped resolve these open questions. Rather it listed, without indicating their relative importance, a number of possible reasons for the competence requirement. These rationales included the need to ensure that the offenders could provide counsel with information that might lead to vacation of sentence; the view that, in the words of Lord Coke, execution of "mad" people is a "miserable spectacle . . . of extream inhumanity and cruelty [that] can be no example to others"; and the notion that retribution cannot be exacted from people who do not understand why they are being executed.[57] Apparently based on the latter rationale, Justice Powell, in his concurring opinion in Ford, stated: "I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it."[58] Justice Powell pointed out that states are free to preclude execution on other grounds (particularly inability to assist counsel), but most courts and commentators have assumed that the Eighth Amendment requirement is limited to the test stated by Justice Powell. Most commentators have also agreed with Justice Powell's view that the Ford competence requirement is grounded in the retributive purpose of punishment.[59]
There has been some confusion about the meaning of the idea that the prisoner must be able to understand (or be aware of) the nature and purpose for (reasons for) the execution. In Barnard v. Collins,[60] decided by the Fifth Circuit in 1994, the state habeas court had found that Barnard's "perception of the reason for his conviction and impending execution is at times distorted by a delusional system in which he attributes anything negative that happens to him to a conspiracy of Asians, Jews, Blacks, homosexuals and the Mafia."[61] Despite the fact that Barnard's understanding of the reason for his execution was impaired by delusions, the Fifth Circuit concluded that his awareness that "his pending execution was because he had been found guilty of the crime" was sufficient to support the state habeas court's legal conclusion that he was competent to be executed. [62]
In order to emphasize the need for a deeper understanding of the state's justifying purpose for the execution, subpart 3(d) of the Recommendation would require that an offender not only must be "aware" of the nature and purpose of punishment but also must "appreciate" its personal application in the offender's own case – that is, why it is being imposed on the offender. This formulation is analogous to the distinction often drawn between a "factual understanding" and a "rational understanding" of the reason for the execution.[63] If, as is generally assumed, the primary purpose of the competence-to-be-executed requirement is to vindicate the retributive aim of punishment, then offenders should have more than a shallow understanding of why they are being executed.
Whether a person found incompetent to be executed should be treated to restore competence implicates not only the prisoner's constitutional right to refuse treatment but also the ethical integrity of the mental health professions.[64] Some courts have decided that the government may forcibly medicate incompetent individuals if necessary to render them competent to be executed, on the ground that once an individual is fairly convicted and sentenced to death, the state's interest in carrying out the sentence outweighs any individual interest in avoiding medication.[65] However, treating a condemned prisoner, especially over his or her objection, for the purpose of enabling the state to execute the prisoner strikes many observers as barbaric and also violates fundamental ethical norms of the mental health professions.
Mental health professionals are nearly unanimous in the view that treatment with the purpose or likely effect of enabling the state to carry out an execution of a person who has been found incompetent for execution is unethical, whether or not the prisoner objects, except in two highly restricted circumstances (an advance directive by the prisoner while competent requesting such treatment or a compelling need to alleviate extreme suffering).[66] Because treatment is unethical, it is not "medically appropriate" and is therefore constitutionally impermissible when a prisoner objects under the criteria enunciated by the Supreme Court in Sell v. United States[67] and Washington v. Harper.[68] As the Louisiana Supreme Court observed in Perry v. Louisiana,[69] medical treatment to restore execution competence "is antithetical to the basic principles of the healing arts," fails to "measurably contribute to the social goals of capital punishment," and "is apt to be administered erroneously, arbitrarily or capriciously."[70]
There is only one sensible policy here: a death sentence should be automatically commuted to a lesser punishment (the precise nature of which will be governed by the jurisdiction's death penalty jurisprudence) after a prisoner has been found incompetent for execution.[71] Maryland has so prescribed,[72] and subpart 3(d) of the Recommendation embraces this view. Once an offender is found incompetent to be executed, execution should no longer be a permissible punishment.
The current judicial practice is to entertain Ford claims only when execution is genuinely imminent. Should courts be willing to adjudicate these claims at an earlier time? Assuming that a judicial finding of incompetence – whenever rendered – would permanently bar execution (as proposed above), subpart 3(d) provides that Ford adjudications should be available only when legal challenges to the validity of the conviction and sentence have been exhausted, and execution has been scheduled.[73]
Procedures: While this paragraph contemplates that hearings will have to be held to determine competency to proceed and competency to be executed, it does not make any recommendations with respect to procedures. Federal constitutional principles and state law will govern whether the necessary decisions must be made by a judge or a jury, what burdens and standards of proof apply, and the scope of other rights to be accorded offenders. Additionally, in any proceedings necessary to make these determinations, the victim's next-of-kin should be accorded rights recognized by law, which may include the right to be present during the proceedings, the right to be heard, and the right to confer with the government's attorney. Victim's next-of-kin should be treated with fairness and respect throughout the process.

Respectfully Submitted,
Paul M. Igasaki, Chair
Section of Individual Rights and Responsibilities

Michael S. Pasano, Chair
Criminal Justice Section

Scott C. LaBarre, Chair
Commission on Mental and Physical Disability Law

James E. Coleman, Jr., Chair
Death Penalty Moratorium Implementation Project

Terri Lynn Mascherin, Chair
Death Penalty Representation Project

August 2006
GENERAL INFORMATION FORM

Submitting Entity: Section of Individual Rights and Responsibilities

Submitted By: Paul M. Igasaki, Chair
Section of Individual Rights and Responsibilities

1. Summary of the Recommendation

The Recommendation, without taking a position supporting or opposing the death penalty, calls upon each jurisdiction that imposes capital punishment to implement the following policies and procedures:
1) defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury;
2) defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a mental disorder or disability for purposes of this provision; and
3) A death sentence should not be carried out if the prisoner has a mental disorder or disability that significantly impairs his or her capacity (i) to make a rational decision to forgo or terminate post-conviction proceedings available to challenge the validity of the conviction or sentence, (ii) to understand or communicate pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of the conviction or sentence that cannot be fairly resolved without the prisoner's participation, or (iii) to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case. [See resolution for more detail re paragraph 3.]

2. Approval by Submitting Entity
The Council of the Section of Individual Rights and Responsibilities approved the Report with Recommendation during its Midyear Meeting on Friday, Feb.10, 2006.

The Section of Individual Rights and Responsibilities has been advised that the following have agreed to co-sponsor the proposed resolution:

Criminal Justice Section
Commission on Mental and Physical Disability Law
Death Penalty Representation Project
Death Penalty Moratorium Project

Has This or a Similar Recommendation Been Submitted to the House of Delegates Board of Governors Previously?

No.

3. What Existing Association Policies Are Relevant to this Proposed Resolution and Would They Be Affected by Its Adoption?

The ABA has adopted numerous policies addressing the need for fair implementation of capital punishment, including:

· Urging jurisdictions that impose capital punishment not to carry out the death penalty without guaranteeing fairness, due process, and minimum risk to innocent persons. 2/97

· Urging that no person with mental retardation, as defined by the American Association on Mental Retardation, should be sentenced to death or executed and supporting enactment of legislation prohibiting the execution of defendants with mental retardation. 2/89

· Opposing discrimination in capital sentencing on the basis of race. 2/89

· Opposing the imposition of capital punishment upon any person for any offense committed while under the age of 18. 8/83

This proposed resolution would build upon these existing policies by urging each jurisdiction that imposes capital punishment to implement the policies and procedures outlined in Section 1 above.

In addition, Paragraph 2 of the proposed resolution includes language derived from ABA Criminal Justice Standard 7-6.1. Moreover, paragraph 3 of the proposed resolution clarifies and supplements ABA Criminal Justice Standards 7-5.6 and 7-5.7.

4. What Urgency Exists that Requires Action at this Meeting of the House?

Many commentators have said, in the wake of Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 125 U.S. 1183 (2005), that the next major issue regarding capital punishment is to what extent, if any, should people with mental illness be exempt from executions. It is important that the ABA have an important voice in dealing with this issue, particularly because this proposal takes a nuanced approach. That is, it does not say that everyone who has a mental illness should be exempt from capital punishment, but rather considers the type of mental illness and how it contributed to the capital crime. The resolution also deals with several important issues that arise when death row inmates have mental illness that may affect their ability competently to waive appeals, to assist their counsel or to be executed.

The proposed resolution is identical to the language adopted by the American Psychiatric Association and the American Psychological Association, except for two clarifying changes made in paragraph 3 of the proposed resolution to specifically state that if the death penalty is vacated, the sentence would be the next most severe punishment.

5. Status of Legislation

In 2002, the United States Supreme Court held that it is unconstitutional to execute a person with mental retardation, in Atkins v. Virginia. Subsequent to Atkins, proposed legislation to deal with the application of the death penalty to people with other disabilities have been introduced in some states.

6. Cost to the Association (Both Direct and Indirect Costs)

Adoption of this proposed resolution would result in only minor indirect costs associated with Government Affairs and Section staff time devoted to the policy subject matter as part of the staff members’ overall substantive responsibilities.

7. Disclosure of Interest

There are no known conflicts of interest.

8. Referrals

By copy of this form, the Report with Recommendation will be referred to the following additional entities, including all Sections and Divisions:

Section of Administrative Law and Regulatory Practice
Section of Antitrust Law
Section of Business Law
Section of Dispute Resolution
Section of Environment, Energy, and Resources
Section of Family Law
General Practice, Solo and Small Firm Section
Government and Public Sector Lawyers Division
Section of Intellectual Property Law
Section of International Law and Practice
Section of Labor and Employment Law
Law Practice Management Section
Section of Legal Education and Admissions to the Bar
Section of Litigation
Section of Public Contract Law
Section of Public Utility, Communications and Transportation Law
Section of Real Property, Probate and Trust Law
Section of Science and Technology Law
Section of State and Local Government Law
Section of Taxation
Tort and Insurance Practice Section
Judicial Division
Law Student Division
Senior Lawyers Division
Young Lawyers Division
Commission on Domestic Violence
Commission on Homelessness and Poverty
Commission on Law and Aging
Commission on Women in the Profession

9. Contact Person (Prior to Meeting)

Ronald J. Tabak
Skadden, Arps, Slate, Meagher & Flom
4 Times Square, 24th Floor
New York, NY 10036-6522
Tel: (212) 735-2226
Fax: (917) 777-2226
Email: rtabak@probonolaw.com

Tanya Terrell-Collier, Director
Section of Individual Rights and Responsibilities
740 15th Street, NW
Washington, DC 20005
Tel: (202) 662-1030
Fax: (202) 662-1031
Email: terrellt@staff.abanet.org

10. Contact Person (Who Will Present the Report to the House)

C. Elisia Frazier, Delegate
Section of Individual Rights and Responsibilities
International Paper Company
Senior Counsel – Woods Products Division
6400 Poplar Avenue
Memphis, TN 38197
Tel : (901) 419-3801
Email : c.elisia.frazier@ipaper.com

Richard M. Macias
Section of Individual Rights and Responsibilities
Richard Macias & Associates
2741 Prewett Street
PO Box 31569
Los Angeles, CA 90031
Tel : (323) 224-3906
Email : rmmacias@aol.com

11. Contact Person Regarding Amendments to this Recommendation
C. Elisia Frazier, Delegate
Section of Individual Rights and Responsibilities
International Paper Company
Senior Counsel – Woods Products Division
6400 Poplar Avenue
Memphis, TN 38197
Tel : (901) 419-3801
Email : c.elisia.frazier@ipaper.com

Richard M. Macias
Section of Individual Rights and Responsibilities
Richard Macias & Associates
2741 Prewett Street
PO Box 31569
Los Angeles, CA 90031
Tel : (323) 224-3906
Email : rmmacias@aol.com

[1] The Task Force's members are Dr. Michael Abramsky; Dr. Xavier F. Amador; Michael Allen, Esq.; Donna Beavers; Professor John H. Blume; Professor Richard J. Bonnie; Colleen Quinn Brady, Esq.; Richard Burr, Esq.; Dr. Joel A. Dvoskin; Dr. James R. Eisenberg; Professor I. Michael Greenberger; Dr. Kirk S. Heilbrun; Ronald Honberg, Esq.; Ralph Ibson; Dr. Matthew B. Johnson; Professor Dorean M. Koenig; Dr. Diane T. Marsh; Hazel Moran; John Parry, Esq.; Professor Jennifer Radden; Professor Laura Lee Rovner; Robyn S. Shapiro, Esq.; Professor Christopher Slobogin; and Ronald J. Tabak, Esq. Drs. Paul S. Appelbaum, Howard V. Zonana and Jeffrey Metzner also contributed significantly to the Task Force's deliberations and recommendations.,
[2] See Am. Psychiatric Ass'n, Diminished Responsibility in Capital Sentencing; Death Sentences for Persons with Dementia or Traumatic Brain Injury; Mentally Ill Prisoners on Death Row: available at http://www.psych.org/edu/other_res/lib_archives/archives/200406.pdf, 200508.pdf, 200505.pdf.
[3] See American Psychological Association, Excerpt from the Council of Representatives 2005 Meeting Minutes (Feb. 18-20, 2005); Excerpt from the Council of Representatives 2006 Meeting Minutes (Feb. 17-19, 2006).
[4] The recommendation being presented to the House of Delegates is identical to the wording approved by these other groups, except that minor changes have been made to paragraph 3(c) and 3(d) to remove any potential doubt that, where either provision applies, the sentence would be the one that would be applicable in a capital case in situations in which the death penalty is not a sentencing option.
[5] 536 U.S. 304 (2003).
[6] Id. at 313-17.
[7] Id. at 318-20.
[8] Manual of the American Association of Mental Retardation 13 (10th ed., 2002).
[9] See American Psychiatric Association, Diagnostic and Statistical Manual 49 (text rev. 4th ed. 2000) (hereafter DSM-IV-TR).
[10] 536 U.S. at 308 n.3. Death Penalty Info. Ctr., State Statutes Prohibiting the Death Penalty for People with Mental Retardation, www.deathpenaltyinfo.org/article.php?scid (describing state laws).
[11] DSM-IV-TR, supra note 9, at 43 (stating that people with "mild" mental retardation develop academic skills up to the sixth‑grade level, amounting to the maturity of a twelve year‑old). For more on the definition of retardation, see James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 Men. & Phys. Dis. L. Rep. 11-24 (2003); Richard J. Bonnie, The APA's Resource Document on Mental Retardation and Capital Sentencing: Implementing Atkins v. Virginia, 32 J. Am. Acad. Psychiat. & L. 304, 308 (2004).
[12] DSM-IV-TR, supra note 9, at 135 (describing symptoms of dementia).
[13] Compare id., at 135 (describing symptoms of dementia) with id. at 46 (symptoms of mental retardation).
[14] 125 S.Ct. 1183 (2005).
[15] 536 U.S. at 318.
[16] Id. at 319.
[17] Id.
[18] 125 S.Ct. at 1196.
[19] Id. (quoting Thompson v. Oklahoma, 487 U.S. 815, 837 (1988)).
[20] See DSM-IV-TR, supra note 9, at 25-26 (distinguishing Axis I diagnoses from Axis II diagnoses).
[21] See id., at 275-76 (schizophrenia); 301 (delusional disorders); 332-33 (mood disorder with psychotic features); 125 (delirium); 477 (dissociative disorders).
[22] See id., at 652. Other Axis II diagnoses that might produce psychotic-like symptoms include Autistic Disorder, id. at 75, and Asperger's Disorder. Id. at 84.
[23] This is a fairly common perception of people with schizophrenia who commit violent acts. See Dale E. McNiel, The Relationship Between Aggressive Attributional Style and Violence by Psychiatric Patients, 71 J. Consulting & Clinical Psychology 404, 405 (2003).
[24] Cf. People v. Schmidt, 216 N.Y. 324, 110 N.E. 945 (1915) (stating that if a person has "an insane delusion that God has appeared to [him] and ordained the commission of a crime, we think it cannot be said of the offender that he knows the act to be wrong).
[25] These offenders would not have the mens rea for murder, and perhaps not even meet the voluntary act requirement for crime. See Wayne LaFave, Criminal Law 405 (3d ed. 2000) (describing the voluntary act requirement under the common law).
[26] See, e.g., Herbert Fingarette & Ann Fingarette Hasse, Mental Disabilities and Criminal Responsibility 218 (1979); Michael Moore, Law and Psychiatry: Rethinking the Relationship 244-245 (1985); Stephen J. Morse, Immaturity and Irresponsibility, 88 J. Crim. L. & Criminology 15, 24 (1997); Robert F. Schopp, Automatism, Insanity and the Psychology of Criminal Responsibility: A Philosophical Inquiry 215 (1991).
[27] For a description of the Yates case, see Deborah W. Denno, Who is Andrea Yates? A Short Story About Insanity, 10 Duke J. Gender L. & Pol'y 37 (2003).
[28] DSM-IV-TR, supra note 9, at 332-33.
[29] Id. at 650 et. seq. (defining as a symptom of antisocial personality disorder "failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest).
[30] See American Law Institute, Model Penal Code § 4.01(2) and commentary (draft, 1962) (stating that "mental disease or defect as used in the insanity formulation does not include "abnormality manifested only by repeated or otherwise anti-social conduct).
[31] See generally LaFave, supra note 25, at 415-16.
[32] See Jeffrey L. Kirchmeier, A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Model of Criminal Justice, 83 Oregon L. Rev. 631, 679 n.237 (2004) (listing statutes and judicial decisions from over a dozen states that have recognized intoxication as a mitigating circumstance).
[33] In Montana v. Egelhoff, 518 U.S. 37 (1996), a plurality of the Supreme Court held that the voluntary intoxication defense is not constitutionally required. Id. at 38. At least 13 states now reject the voluntary intoxication defense. See Molly McDonough, Sobering Up, 88 A.B.A. J. 28 (2002).
[34] See, e.g., DSM-IV-TR, supra note 9, at 170 (describing dementia due to prolonged substance abuse).
[35] The language in 2(a) and 2(c), for instance, is almost identical to the language in the Model Penal Code's insanity formulation. See Model Penal Code, supra note 30, at § 4.01(1).
[36] Today, five states do not have an insanity defense, another twenty-five do not recognize volitional impairment as a basis for the defense, and many states define the cognitive prong in terms of an inability to "know" (as opposed to "appreciate") the wrongfulness of the act or, as is true in federal court, leave out the word "substantial@ in the phrase Alack of substantial capacity to appreciate@ in the Model Penal Code formulation. See ralph reisner et al., law and the mental health system: civil and criminal aspects 534-36 (4th ed. 2004).
[37] See generally Michael L. Perlin, "The Borderline Which Separated You from Me@: The Insanity Defense, the Authoritarian Spirit, the Fear of Faking, and the Culture of Punishment, 82 Iowa L. Rev. 1375 (1997) (exploring reasons for hostility to the insanity defense).
[38] See Ellen Fels Berkman, Mental Illness as an Aggravating Circumstance in Capital Sentencing, 89 Colum. L. Rev. 291, 297 (1989) (noting that "nearly two dozen jurisdictions list as a statutory mitigating circumstance the fact that the defendant's capacity to appreciate the criminality of her conduct was substantially impaired, often as a result of mental defect or disease and that "an equally high number of states includes extreme mental or emotional disturbance' as a mitigating factor).
[39] See generally sheldon glueck, mental disorder and the criminal law (1925).
[40] See, e.g., Model Penal Code, supra note 30, at § 210.6.
[41] See, e.g., Gilmore v. Utah, 429 U.S.1012 (1977).
[42] John Blume, Killing the Willing: "Volunteers, Suicide and Competency, 103 mich. l. rev. 939, 959 (2005).
[43] 384 U.S. 312 (1966) (case remanded for competency determination after condemned prisoner directed attorney to withdraw petition for certiorari).
[44] Id. at 314.
[45] See, e.g., Hauser v. Moore, 223 F.3d 1316, 1322 (11th Cir. 2000); Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir 1985).
[46] Richard J. Bonnie, Mentally Ill Prisoners on Death Row: Unsolved Puzzles for Courts and Legislatures, 54 Cath. Univ. L. Rev.1169 (2005).
[47] Cf. Illinois v. Haynes, 737 N.E.2d 169, 178 (Ill. 2000); In re Heidnick, 720 A. 2d 1016 (Pa 1998).
[48] Blume, supra note 41, Appendix B, at 989-96. The text refers only to significant mental disorders that could have distorted the prisoner's reasoning process and impaired capacity for Arational choice.@ In addition to these cases, Blume reports that 20 of these prisoners had histories of substance abuse unaccompanied by any other mental disorder diagnosis, another 6 had personality disorders (with or without substance abuse) and 4 had sexual impulse disorders.
[49] See Bonnie, supra note 46, at 1187-88. A more demanding approach would ask whether the prisoner is able to give plausible reasons that reflect authentic values and enduring preferences.
[50] See Richard J. Bonnie, The Dignity of the Condemned, 74 va.l. rev. 1363, 1388-89 (1988); Cf. Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 univ. miami l. rev. 539, 579-80 (1993).
[51] See, e.g., Council v. Catoe, 359 S.C. 120, 597 S.E.2d 782, 787 (2004); Commonwealth v. Haag, 809 A.2d 271, 285 (PA, 2001).
[52] Council v. Catoe, 359 S.C. 120, 597 S.E.2d 782, 787 (A[T]he default rule is that [post-conviction review] hearings must proceed even though a petitioner is incompetent. For issues requiring the petitioner's competence to assist his [post-conviction] counsel, such as a fact-based challenge to his defense counsel's conduct at trial, the [post-conviction] judge may grant a continuance, staying review of these issues until petitioner regains his competence.); Carter v. State, 706 So.2d 873, 875-77 (Fla. 1997); State v. Debra, 523 N.W.2d 727 (Wisc. 1994) (non-capital case); People v. Kelly, 822 P.2d 385, 413 (Cal. 1992).
[53] ABA Criminal Justice Mental Health Standards 290 (1989).
[54] Id, at 291.
[55] 477 U.S. 399.
[56] State courts have disagreed about the procedures required to make Ford competence determinations. A sensible outline of the required procedures appears in the ABA Standard 7.5-7 and the Sixth Circuit's decision in Coe v. Bell, 209 F.3d 815 (6th Cir. 2000). The prisoner is entitled to state-subsidized counsel and expert assessment once the prisoner presents evidence raising a significant doubt about his competence. The issue should be adjudicated at hearing before a judge at which the prisoner bears the burden of proving his incompetence by a preponderance of the evidence. See also Paul F. Enzinna and Jana L. Gill, Capital Punishment and the Incompetent: Procedures for Determining Competency to be Executed after Ford v. Wainwright, 41 fla. l. rev. 115 (1989).
[57] Id. at 406-08.
[58] Id. at 422 (Powell, J., concurring).
[59] See Barbara Ward, Competency for Execution: Problems in Law and Psychiatry, 14 fla. st. univ. l. rev. 35, 49-56 (1986); Christopher Slobogin, Mental Illness and the Death Penalty, 24 men. & phys. l. rep. 667, 675-77 (2000).
[60] 13 F.3d 871 (5th Cir, 1994).
[61] Id. at 876.
[62] Id.
[63] See Martin v. Florida, 515 So. 2d 189, 190 (Fla. 1987).
[64] Kirk S. Heilbrun, Michael L. Radelet, Joel A. Dvoskin, The Debate on Treating Individuals Incompetent for Execution, 149 american journal of psychiatry 596 (1992); Richard J. Bonnie, Dilemmas in Administering the Death Penalty: Conscientious Abstention, Professional Ethics and the Needs of the Legal System, 14 law & human behavior 67 (1990).
[65] Singleton v. Norris, 319 F.3d 1018 (8th Cir.) (en banc), cert denied, 124 S. Ct. 74 (2003).
[66] See Council on Ethical and Judicial Affairs, American Medical Association, Physician Participation in Capital Punishment, 270 JAMA365 (1993); American Psychiatric Association and American Medical Association, Amicus Brief in Support of Petitioner in Perry v. Louisiana, 498 U.S. 38 (1990); Richard J. Bonnie, Medical Ethics and the Death Penalty, 20 hastings center report, may/june, 1990, 12, 15-17.
[67] 539 U.S. 166 (2003).
[68] 494 U.S. 210 (1990).
[69] 610 So.2d 746 (La. 1992).
[70] Id. at 751.
[71] A state could try to restore a prisoner's competence without medical treatment, but the prospects of an enduring change in the prisoner's condition are slight.
[72] Md. Code of Correctional Services, 3-904(a)(2), (d)(1).
[73] This does not mean that no litigation challenging the validity of the sentence can be simultaneously occurring. For all practical purposes, "exhaustion" means that one full sequence of state post-conviction review and federal habeas review have occurred where, as in most jurisdictions, no execution date set during the initial round of collateral review is a "real" date. Given the many procedural barriers to successive petitions for collateral review, an execution date set after the completion of the initial round may be a "real" date, even if a successive petition has been filed or is being planned. In such a case, the state may contest the prisoner's request for a stay of execution. A Ford claim should be considered on its merits in such a case, and it should be considered earlier on in a jurisdiction where a "real" execution date is set during the initial round of collateral review

HB 1707 and our existing insanity laws

2007-01-25T15:41:00.000-08:00

Insanity is a complete defense to a crime. A person found to be insane at the time of a crime is “not guilty,” and cannot be punished (although s/he can be committed to a mental institution for treatment).

HB 1707 disqualifies a person suffering from a severe mental disorder at the time of a murder from death penalty eligibility, but does not provide a defense to murder. It is a “defense” to the death penalty only. If convicted of aggravated murder (the only crime that carries the possibility of a death sentence), that person would serve life without parole.

Both insanity and a severe mental disorder require proof of a mental disease or defect at the time of the crime. The difference between the two provisions is that insanity requires proof of a complete inability to know right from wrong, while severe mental illness requires proof of substantial impairment in the ability to know right from wrong or to control his/her actions. In short, the standard for insanity is slightly higher than for severe mental illness.

It is important to further point out that our insanity law employs the strictest test recognized in this country. This is the reason so few juries have found defendants charged with murder not guilty by reason of insanity.

In fact, the definition of “severe mental disorder” used in this bill is the insanity standard used in 17 other states and in the Model Penal Code (laws drafted to attempt to standardize criminal laws). Thus, a person charged with murder in any of those 17 states would not only be ineligible for the death penalty, but would be “not guilty” of the crime.

Thus, this bill prohibits death sentences, but does not alter the proof necessary for a conviction nor change “life without parole” as the sentence resulting from a conviction for aggravated murder. Additionally, it protects only those individuals who suffer from a profound mental disease or defect. Finally, that severe mental disease or defect must have caused a substantial impairment in the person’s ability to know right from wrong or control his/her actions at the time of the crime. This is a difficult standard--one that will only be met by individuals who are truly severely mentally disordered and whose crime is the product of that severe disability.

Talking Points

2007-01-25T15:21:00.000-08:00

Prohibiting Death Sentences for Severely Mentally Disordered Individuals

The death penalty reflects the evolving standards of decency that govern a maturing society.

Washington has traditionally been on the forward curve of those evolving standards of decency. In 1993, our legislature prohibited the execution of “mentally retarded” defendants. Almost a decade before the United States Supreme Court held that such death sentences are unconstitutional in Atkins v. Virginia.

That same year, the Washington Supreme Court held that our statute prohibits death sentences for someone under 18 years old. Almost twelve years later, United States Supreme Court followed suit in 2005 in Roper v. Simmons.

This bill prohibits the execution of defendants who suffer from severe mental illness or brain damage at the time of the crime. The bill sets up, in effect, a conclusive "defense" against the death penalty for capital defendants who can demonstrate the requisite level of impairment due to severe disorder at the time of the offense.

Those persons who kill as the result of a severe mental disease or defect which substantially impairs their ability to either know right from wrong or to control their actions do not possess the degree of culpability to warrant a death sentence.

The bill’s definition of severe mental illness is very narrow. It excludes mental conditions that are the result of the use of drugs or alcohol. It also excludes anti-social personality traits.

In addition to proof of severe mental illness or disorder, the bill also requires proof that the defendant’s actions were the result of that mental condition. Thus, the bill requires proof of severe mental illness and proof that the crime was committed as a result.

The bill sets forth a pre-trial procedure where the defendant must prove the existence of severe mental disorder at the time of the crime. In those cases where the defendant meets this burden, the death penalty will be dismissed—resulting in a significant savings to our justice system.

The bill also creates a procedure for adjudicating a claim of mental retardation, a defect in the current law that renders it vulnerable to constitutional attack.

This bill is very similar to a recent ABA proposal, which was the result of a task force involving some of this country’s most knowledgeable lawyers and mental health professionals.

Study Bill

2007-01-25T15:13:00.000-08:00

Our proposed study bill can be found here:
http://www.leg.wa.gov/pub/billinfo/2007-08/Pdf/Bills/House%20Bills/1518.pdf
and here:
http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1518&year=2007

Proposed Legislation--Prohibition against Execution of Severely Mentally Ill People

2007-01-25T15:04:00.000-08:00

Our proposed legislation to prevent death sentences for individuals who commit crimes due to their severe mental illness can be found here:
http://www.leg.wa.gov/pub/billinfo/2007-08/Pdf/Bills/House%20Bills/1707.pdf
and here:
http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1707&year=2007

The National Mental Health Association's position on the death penalty and people with mental illness

2007-01-25T14:58:00.000-08:00

Policy Position: P-44
DEATH PENALTY AND PEOPLE WITH MENTAL ILLNESS
Background: Over the past thirty years, the number of people with mental illness and other mental disabilities on death row has steadily increased.
(1) Although precise statistics are not available, it is estimated that 5-10 percent of people on death row have a serious mental illness.
(2) NMHA believes that mental illness can influence an individual’s mental state at the time he or she commits a crime, can affect how "voluntary" and reliable anindividual’s statements might be, can compromise a person’s competence to stand trialand to waive his or her rights, and may have an effect upon a person’s knowledge of the criminal justice system.

The process of determining guilt and imposing sentence is necessarily more complex for individuals with mental illness. A high standard of care is essential with regard to legal representation as well as psychological / psychiatric evaluation for individuals with mental illness involved in death penalty cases. NMHA believes mental illness should always be taken into account during all phases of a potential death penalty case. Moreover, the assessment of competency to stand trial as well as competency to be executed should be conducted by a multi-disciplinary team of qualified professionals, including professionals with expertise in the defendant’s particular mental illness.

Some states require a prediction of future dangerousness in order to impose a death sentence. However, research has shown predictions of future dangerousness to be unscientific and frequently inaccurate. Therefore, such predictions are highly suspect as a basis on which to impose the death penalty. Moreover, there is a danger that the wholly unwarranted perception that mental illness is associated with violence could bias such predictions. In fact, research shows that people with mental illness pose no greater risk of violence than the average person.

(3) Unfortunately, however, the misperceived link between mental illness and violence drives both legal policy and criminal justice system practice with respect to people with mental illness.
In 1986, the Supreme Court ruled that people with mental illness can be executed if they understand the punishment that awaits them and why they are being put to death. This ruling has prompted some states to provide psychiatric treatment to offenders with mental illness on death row in order to "restore their competency." Consistent with the code of ethics of the American Medical Association, NMHA is opposed to the practice of having a psychiatrist or other mental health professional treat a person in order to restore competency solely to permit the state to execute that person. Similarly, NMHA is opposed to the practice of medicating defendants involuntarily in order to make them competent either to stand trial or to be executed. Great care must be taken to assure informed consent for treatment / no treatment options.

NMHA believes that our current system of fact-finding in capital cases fails to identify who among those convicted and sentenced to death actually has a mental illness. Thus, there is reason to believe that individuals with mental illness are being executed without the criminal justice system knowing of the existence of that illness and, therefore, without the requisite consideration of whether that mental illness may be a mitigating factor in these cases. Our current system of justice does not adequately address the complexity of cases involving defendants with mental illness. Therefore, NMHA calls upon states to suspend use of the death penalty until more just, accurate and systematic ways of determining a defendant’s mental status are developed. This position supports the American Bar Association’s (ABA) call for a moratorium on the imposition of the death penalty because, in its judgment, "fundamental due process is systematically lacking" in capital cases.

Abolition

2006-12-23T14:25:00.000-08:00

Boston Globe Editorial Asks "Whether Execution by Any Method Is Right"
Commenting on the recent halting of executions over the lethal injection controversy and DPIC's Year End Report, the Boston Globe raised the question of "whether execution by any method is right." Their editorial concluded that "[t]his hit-and-miss system offers no protection for society," and stated that a life-without parole alternative would "protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome."
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Commenting on the recent halting of executions over the lethal injection controversy and DPIC's Year End Report, the Boston Globe raised the question of "whether execution by any method is right." Their editorial concluded that "[t]his hit-and-miss system offers no protection for society," and stated that a life-without parole alternative would "protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome."The entire editorial follows:
Rethinking the death penalty
THE UNITED STATES may be slowly ridding itself of the urge to impose the death penalty, according to a study released last week. A protracted execution in Florida on Wednesday starkly illustrated one of the reasons for the change in attitude.
Angel Diaz was the 53d and last person to be executed in the United States this year. He was strapped onto a gurney and given an injection that was supposed to kill him within 15 minutes, but he lay there squinting and grimacing, and seemed to be trying to speak. Prison officials had to give him a second injection, and it took him 34 minutes to die. .
Governor Jeb Bush promised an investigation and suspended executions pending the results, but the exact reason for Diaz's ordeal ignores the wider question of whether execution by any method is right. The murder took place in 1979, and any deterrent effect has vanished. Thousands of people have been murdered in the state since then, yet only 64 have been executed. This hit-and-miss system offers no protection for society.
Other states are starting to accept this reality, according to a survey by the Death Penalty Information Center in Washington, D.C. The 53 executions this year are down from 60 the year before, and 98 in 1999. The New Jersey Legislature imposed a moratorium on executions, and North Carolina and California began legislative studies of their systems. The issue gained urgency in Califonia last week when a federal judge ruled that the injection procedures followed there were so cruel that they violated the US Constitution.
Based on the Florida experience, it's easy to understand why states are wary. Florida abandoned the electric chair in 2000 in favor of lethal injections, but Diaz's prolonged death shows this method to be similarly inhumane. Even if a painless system were devised, the variation of sentencing across multiple jurisdictions is inherently arbitrary.
Support for capital punishment remains steady at two-thirds of those polled nationally, but when details are provided of the executions, that begins to erode. And when given a choice of execution or life without parole, a slight majority in a recent Gallup Poll favored the life sentence. This punishment would protect society while allowing for redress if a prisoner could show he was wrongly convicted. A ban on executions would spare judges and juries from having to consider whether mental illness, age, or other mitigating circumstance should preclude a death sentence. The legal system cannot make these Solomonic decisions with assurance of a just outcome.Before he died, Diaz called his execution an act of vengeance. Perhaps, but given the 27-year lapse between crime and punishment, there was no public outcry for his death. His execution rather shows the capricious nature of a brutal act that should have no place in American society.
(Boston Globe, Dec. 19, 2006).