Nel's New Day

July 19, 2014

Death Penalty Needs to Be Abolished

The execution of John Middleton in Missouri early Thursday morning at 12:01 am was the sixth execution in that state this year—one every month since November except for May when the U.S. Supreme Court halted Russell Bucklew’s execution. He suffers from a rare congenital condition causing weakened and malformed blood vessels. A hearing before the 8th Circuit Court of Appeals will hear Bucklew’s case on September 9.

A federal judge had granted Middleton a stay of execution on Tuesday, but a federal appeals court overturned it, and both the U.S. Supreme Court and the Missouri Supreme Court refused to halt the execution. Gov. Jay Nixon denied a request for clemency.

Middleton may have been innocent. When he was convicted of murdering three suspected police informants in 1995, the prosecutors used an insect larva from the body of one victim as a key piece of evidence. Later, it was discovered that the date for the larva was off by a day. On the actual day of the murder, according to this evidence, Middleton was in a Missouri jail on unrelated charges. The prosecution had only circumstantial evidence with no DNA or other physical links to the death. A witness submitted a new affidavit implicating two other drug dealers in all three killings.

Even getting a stay might not have saved Middleton’s life. Missouri tends to rush executing people. February’s executed prisoner was taken by prison guards while he was discussing his attorney’s appeal and injected with deadly drugs. The state pronounced him dead four minutes before the state Supreme Court gave the go-ahead for his execution.

That was the third straight execution in Missouri in which executed prisoners were injected with lethal drugs while their appeals were still pending. In January, 8th Circuit Court of Appeals Judge Kermit Bye declared that he was “alarmed” that Missouri proceeded with its execution “before this court had even finished voting on Nicklasson’s request for a stay. In my near fourteen years on the bench, this is the first time I can recall this happening.”

In addition to ethical problems, executions now openly exhibit incompetence. Drugs are questionable because those used in the past for lethal injections are no longer readily available either in the U.S. or in Europe. States are now using sometimes unsuccessful drugs from non-regulated compounding companies. The people doing the injections, usually not doctors, are also incompetent. In 2009, Romell Broom was poked with needles for over two and a half hours while people searched for a suitable vein in order to insert the IV for the drug. Even the prison doctor failed. The Ohio governor finally stopped the execution after being alerted by the prisoner’s lawyer.

That situation presents the question of whether a state can legally execute a person after he survives an execution attempt. Almost 70 years ago, SCOTUS ruled in a 5-4 vote that a second execution was just fine after a drunk prison guard set up the electric chair incorrectly. The Supreme Court may have a second chance to make a decision.

Broom wasn’t the first problem. Three years earlier, Joseph Clark shouted during his 90-minute execution, “It don’t work! It don’t work.” A year later, Christopher Newton’s execution took so long that officials had to give him a bathroom break.

Because doctors are prevented from killing because of their Hippocratic oath, those who do are not top-notch. The dyslexic Dr. Alan Doerhoff performed 54 executions in Missouri about he had been sued for malpractice at least 20 times and was banned from two different hospitals.

Clearly aware of their failures, states with the death penalty are attempting to shroud executions in secrecy. The Guardian, the Associated Press and three Missouri newspapers now have a landmark lawsuit to remove that secrecy from death penalty protocols. The lawsuit argues that under the First Amendment of the US constitution the public has a right of access to know “the type, quality and source of drugs used by a state to execute an individual in the name of the people.”

Instead of stopping executions, one state legislator has an alternative. After states have used hangings, gas chambers, electric chairs, and lethal injections, Utah Republican state legislator Paul Ray wants the firing squad returned and plans to bring it up in legislature this coming January. Utah outlawed opting for death by bullet only a decade ago. One person used this method for his execution in 2010. Ray isn’t alone; Missouri state Rep. Rick Brattin said earlier this year when he was proposing the method for his state. Meanwhile the shortage of drugs has driven Tennessee to legalize the electric chair.

Aside from the argument that executions cost more than life imprisonment, there are several reasons for stopping the death penalty as the United States did for several decades during the twentieth century:

  • Capital punishment doesn’t deter crime. In fact, states without the penalty have much lower murder rates. For example, the South has 80 percent of executions in the country while it holds the highest regional murder rate.
  • Innocent people are convicted and executed. In the last four decades since the U.S. reinstated the death penalty, 144 men and women have been released from Death Row, some of these only minutes before their scheduled executions. Four men may have recently been wrongfully executed for crimes they didn’t commit.
  • Race plays a role in who is executed. A 1990 report from the General Accounting Office concluded that the race of the victim influenced the likelihood of capital murder charges or the death penalty in 82 percent of studies that were reviewed. Those who murdered whites were far more likely to be sentenced to death than those who murdered blacks.
  • The death penalty is randomly applied. Politics, quality of legal counsel, and the location of the crime are more likely to be the determining facts for the death penalty than the facts surrounding the crime.
  • Bad legal counsel is a prime reason for executions. The vast majority of defendants in capital cases cannot afford their own attorneys. Many of them are highly inexperienced while others sleep through the trial or come to court drunk.
  • Civilized nations don’t execute people. Throughout the world, 140 nations—including most of those in Western Europe, North America, and South America—do not have capital punishment. The U.S. sides with Iraq, Iran, and China in executing people.
  • Capital punishment violates religious beliefs.
  • The death penalty doesn’t heal the pain that victims’ loved ones suffer. Money used for executions could be used for counseling, restitution, crime victim hotlines, and other services for survivors of victims.

The sensible alternative to the death penalty is life without parole. In California alone 3,300 people received this alternate sentence, and only seven of them have been released since this option became available in the state in 1977. All seven proved their innocence.

In a 5-4 vote last May, the Supreme Court determined Florida’s rigid cutoff number for mental disability to be unconstitutional.  This cutoff “creates an unacceptable risk that persons with intellectual disability will be executed,” Justice Anthony Kennedy wrote for the 5-4 ruling. “Intellectual disability is a condition, not a number.” SCOTUS had prohibited states from executing the mentally impaired in Atkins v. Virginia (2002).

Justice Antonin Scalia was in the minority in both votes. He defends his pro-death penalty stance by claiming that the Bible forgives those who wrongly apply the death penalty to innocent persons on the grounds that the wrongly convicted will have an opportunity to set the record straight in the courthouse of the afterlife.

In a first, U.S. District Judge Cormac J. Carney ruled this week that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment. Carney said, that the “random few” who will be executed  “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”  Carney said. His decision will most likely be appealed to the U.S. 9th Circuit Court of Appeals.

Following the uproar after Oklahoma badly botched an execution in May, causing the prisoner to die of a heart attack, the Department of Justice has initiated a national review of the death penalty. It has declared a moratorium for executions on a federal level pending an investigation. The agency will also “include a survey of state-level protocols and related policy issues,” according to DoJ spokesperson Ellen Canale.

Christopher Durocher, government affairs counsel for the Constitution Project, has submitted recommendations to the agency. The prominent think tank, whose members include former attorneys general, judges and prosecutors with differing views on the death penalty, proposes a DoJ office to review innocence claims of death row inmates, especially considering reports of racial disparity. The group also urges the development of “federal standards and procedures” for accrediting forensic laboratories after recent research has called into question the practices used in some of the 32 states that still use the death penalty. Durocher said that states not complying with benchmarks could be ineligible for some federal grants.

Although the approval rating of capital punishment is currently at 60 percent, that’s down from 80 percent 20 years ago when it peaked. We’re heading in the right direction.

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