"...and nobody listened."

The Innocence Project truly does some amazing work.

CNN:

A Dallas man who spent more than 27 years in prison for a murder he didn't commit was freed Tuesday, after being incarcerated longer than any other wrongfully convicted U.S. inmate cleared by DNA testing.

..."I thank God for the existence of the Innocence Project," [James Lee] Woodard, 55, told the court. "Without that, I wouldn't be here today. I would be wasting away in prison."

... Like nearly all the exonorees, Woodard has maintained his innocence throughout his time in prison. But after filing six writs with an appeals court, plus two requests for DNA testing, his pleas of innocence became so repetitive and routine that "the courthouse doors were eventually closed to him and he was labeled a writ abuser," Roetzel said.

"On the first day he was arrested, he told the world he was innocent ... and nobody listened," Jeff Blackburn, chief counsel for the Innocence Project of Texas, said during Tuesday's hearing.

There's more information on the Innocence Project's blog as well as some video. If you don't already know about this organization and its work (and successes), you should.

"The Ultimate Sanction Because of Race"

As highlighted by Adam Liptak in today's New York Times, there's a new study (pdf) out on the role of race in sentencing:

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

It has never been conclusively proven that, all else being equal, blacks are more likely to be sentenced to death than whites in the three decades since the Supreme
Court reinstated the death penalty in 1976. Many experts, including some opposed to the death penalty, have said that evidence of that sort of direct discrimination is spotty and equivocal...

His statistics have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, “five black defendants would be sentenced to the ultimate sanction because of race.”

As the article points out, the disparities in sentencing dependent upon the race of the defendant have been documented and acknowledged for some time. Here in Indiana, a study found that those convicted of killing a white person are three times more likely to be sentenced to death than those who kill a black person. However, in light of this new study, some new research and examination of racial disparities may be in order.

Developing Story on Kenneth Allen

From WSBT:

A man accused of killing his mother and grandparents and burying their bodies in a basement sent a note to a judge requesting the death penalty.

Marion Superior Judge Tanya Walton Pratt set a hearing for May 8 to discuss Kenneth Lee Allen's handwritten motion, in which he also said he wished to represent himself in court.

"I, Kenneth Allen, wish to represent myself and to enter a plea for the death penalty," the note read.

The motion received by the judge Thursday was not filed or signed by two attorneys appointed to represent Allen and they likely will try to dissuade him...

Kenneth Allen's trial has been delayed while his attorneys appeal a court ruling denying a request to suppress evidence.

Expect updates here as soon as more information becomes available.

National Crime Victims' Rights Week

With apologies for being a week late in posting this, April 13th-19th marked National Crime Victims' Rights Week. In our efforts to define and pursue justice, we should always bear in mind the incredible pain and loss that follows families who have lost someone to a violent crime. Their voice is one that should always be included in any discussion about capital punishment reform.

End of De Facto Moratorium

The end of the de facto moratorium that had been in place awaiting a ruling in Baze v. Rees is now official as evidenced by the denial of 11 death row appeals to the U.S. Supreme Court (NY Times):

The justices’ orders declining to review the cases were not unexpected, given the court’s ruling last week in a Kentucky case that the state’s procedure for lethal injections did not amount to unconstitutionally cruel and unusual punishment. Barriers to executions in other states may also be lifted soon.

Why We've Arrived

InCASE's mantra as presented by Justice Stevens in Baze v. Rees:

The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.

Justice Stevens Gets It

From the Baze v. Rees opinion (as highlighted by Sentencing):

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

[emphasis mine]

While the death penalty has incredibly high costs for no consclusive return, not to mention the unique act of the government taking an already detained life, there is a remarkable lack of scrutiny surrounding the death penalty and its use. Sure, it's uncomfortable to talk about the death penalty, but if we can't talk about it and its various flaws, should we really be allowing it to continue on its present course unchecked?

More Baze v. Rees Analysis

More relevant analysis on Baze v. Rees in both Indiana-specific and national perspectives.

Indiana Lawyer:

What may remain open is how states assess what alternative options are available and how states administer the drugs during a lethal injection. That's where Indiana has more than a passing interest in the lethal injection issue, one that's been raised frequently by Hoosier death-row inmates - including three in the past year who are now all dead.

Those inmates had filed federal suits challenging the state's lethal injection method, making similar claims as in Baze, but those suits never gained steam in District Court and are now moot: David Leon Woods and Michael Lambert were executed by lethal injection last year, while inmate Norman Timberlake died from natural causes in his prison cell in November 2007 while still on death row.

A very thorough examination of what the opinions mean and what is yet to come from Adam Liptak at the N.Y. Times:

Executions in Texas, Alabama and other Southern states with high death-penalty rates are likely to resume shortly in the wake of the Supreme Court’s decision Wednesday upholding Kentucky’s method of putting condemned inmates to death.

But the fractured decision may actually slow executions elsewhere in the country, legal experts said, as lawyers for death-row inmates launch fresh challenges based on its newly announced legal standards.

“The decision will have the effect of widening the divide between executing states and symbolic states — states that have the death penalty on the books but rarely carry out executions,” said Jordan M. Steiker, a law professor at the University of Texas.

Also, Mr. Liptak discusses the background of the case here (mp3).

Deferring to Authority

For all things Kennedy v. Louisiana (arguments being heard today in the Supreme Court) check out Sex Crimes blog which already has about 12 posts on it in the past two days.

The Real Questions

Today's 7-2 decision in Baze v. Rees was, as expected by many, in favor of upholding current lethal injection protocols. When the case was first granted cert. by the Supreme Court back in October, there was some buzz about what this case could accomplish and what possible strides forward an opinion favorable to death penalty reform could cause.

Upon continued inspection, however, many began to see Baze v. Rees for what is was: a case about chemistry.

Unlike the quixotic battle against the flaws of the death penalty that was hoped for by some, the narrow scope of the questions placed in front of the Justices made it clear that this case would rule on thiopental, pancuronium bromide, and potassium chloride not racial disparities, an undue cost burden on taxpayers, and the lack of a conclusively demonstrated deterrent effect. In fact, as the chemistry of executions was hashed out throughout the case, a different chemical-the one used to put animals to sleep-emerged as a seemingly acceptable alternative as it mitigated the risks involved with the current three-drug "cocktail".

And so, while the highest court in the land discussed the Eighth Amendment in differing terms like "substantial" or "objectively intolerable" pain, and "unnecessary risk" of pain vs. "substantial risk" of pain, I simply had to shake my head with the full knowledge that this was not the debate society needs to be having. While the facts of the case may be appropriate for Supreme Court Justices, we the people need to be talking about what a fair and effective justice system means to us.

Does a fair justice system sentence those who kill whites to death three times as often as those who kill blacks, as Indiana's does?

Does an effective justice system spend almost 40% more on a capital case than the cost of imprisoning a defendant for their entire life? Indiana's does.

Is it acceptable to have innocent men come within 3 days or 2 weeks of their executions, only to later be acquitted of their crimes? It happened here in Indiana.

This is just the beginning of this long overdue conversation and it doesn't involve chemistry.

Supreme Court Rules Lethal Injection Constitutional

From SCOTUSBlog:

In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices...

If defense lawyers do now mount new challenges, they will have to seek new court orders delaying specific executions, because the Supreme Court had not issued a formal moratorium on executions, even though — as a practical reality — it had not allowed any scheduled execution to occur while it was considering the Baze case. Thus, states would be free to schedule new execution dates.

The full .pdf of the opinion (97 pages) can be found here.

2007 Execution Figures Puts U.S. as 5th Highest in Executions

A report by Amnesty International on 2007 executions around the world put the U.S. in 5th with 42 executions. This puts us behind China (470+), Iran (317+), Saudi Arabia (143+) and Pakistan (135+). Trailing the U.S. are Iraq (33+), Vietnam (25+), Yemen (15+) and Afghanistan (15).

The U.S. is also 5th in death sentences handed out in 2007 at 100+. This places us behind China (1860+), Pakistan (307+), Algeria (271) and Iraq (199+).

2007 in Review: Decline in U.S. Executions

CNN.com: [h/t Sentencing Law & Policy]:

The number of American executions fell to its lowest level in about 15 years, putting it fifth in the world with 42, Amnesty officials said.

What they fail to note is that there has been a de facto moratorium in place pending the Supreme Court decision on Baze v. Rees since last September which has certainly had an impact on the decline in executions.

These statistics are from a just-released report by Amnesty International: Death Sentences and Executions in 2007 (pdf here).

The View from D.C.

There were some quotes from yesterday's Senate Judiciary Committee; Subcommittee on the Constitution's hearing entitled “The Adequacy of Representation in Capital Cases”. While each state has its own set of issues, the broad strokes at the hearing certainly resonate with various issues here in Indiana.

From Senator Feingold:

Obviously, inadequate representation is not unique to capital cases. But the challenges presented in a death penalty case are unique, and the consequences of inadequate representation catastrophic. Capital cases tend to be the most complicated homicide trials, and the penalty phase of a capital case is like nothing else in the criminal justice system. To do these cases right, at the trial, penalty, appellate, and state post-conviction stages, requires vast resources and proper training – not only for the defense attorneys who need to put in hundreds of hours of work, but also investigators, forensic professionals, mitigation specialists and other experts.

Senator Leahy weighed in as well:

If we sanction the use of a penalty as final as capital punishment, we must be sure that the system is working properly. The catastrophe of executing an innocent person is not one that we can ever tolerate. Unfortunately, the number of innocent people freed from death row to date illustrates that this is not an idle concern.

The best way to ensure that justice is done is to have exceptional counsel on both sides of these cases. As a prosecutor, I always knew that it was better to have good opposing counsel. With properly trained attorneys and appropriate resources on all sides, we can have much more confidence in our system of justice. Unfortunately, our track record on representation of capital defendants has not been good.

While Indiana has taken steps to address the difficult nature of capital defense representation, we're still left with the fact that this is a costly, precarious process in which a life hangs in the balance.

Death Penalty "Incentive" Leads to Cellmate Murder

For those of you who think that life without parole isn't sufficient punishment, make sure you're paying attention to this one. Zachariah Melcher, who was serving life without parole for the murder of his pregnant wife and son, strangled his cellmate Nicholas Roman on March 7th. Allegedly, Melcher has cited a desire to be put to death as the reason for his murder. Additionally, he has suggested that he would commit another murder if not given the death penalty for Roman's murder. Sullivan County prosecutor Robert Springer has obliged, filing a death penalty request.

This presents us with an incredible paradox: the death penalty explicitly caused the murder of Nicholas Roman. While we have yet to come up with a consensus on whether or not the death penalty deters, we have a concrete case of a life being taken due to the death penalty. Additionally, as the prosecutor in this case has filed for the death penalty, we should be concerned about a dangerous precedent being set for lifers who want to "escape" their sentence, essentially resulting in an increase of "suicide by murder" akin to "suicide by cop".

This is the third such case having been preceded by Robert Smith and Scott Nicholson. If the state keeps obliging these defendants by filing for the death penalty, we may very well see an increase of these cases and definitive proof of the death penalty, at least within the walls of Indiana prisons, leading to more murders.

Pre-Release Screening of "At the Death House Door"

Through the gracious efforts of the Independent Film Channel, InCASE is proud to announce a pre-release screening of "At the Death House Door", a documentary by directors Steve James of "Hoop Dreams" fame and Peter Gilbert:

At the Death House Door is a personal and intimate look at the death penalty in the state of Texas through the eyes of Pastor Carroll Pickett, who served 15 years as the death house chaplain to the infamous "Walls" prison unit in Huntsville. During Pickett's remarkable career journey, he presided over 95 executions, including the world’s first lethal injection. After each execution, Pickett recorded an audiotape account of his trip to the death chamber.

We're incredibly pleased to be bringing this documentary here before its broadcast release on IFC, May 29th at 8pm.

We will be offering the film on May 22nd at 7pm, location TBA. Stay tuned to our blog and newsletter for updates!

For those who want a sneak peek, you can find the trailer here. As expected, it is quite chilling and we cannot wait to screen it here in Indianapolis.

More on Kennedy v. Louisiana

The U.S. Supreme Court is approaching arguments for Kennedy v. Louisiana, a case addressing the constitutionality of the death penalty for child rape, and (as pointed out at Sentencing Law and Policy) the "pre-argument media buzz is starting" (from USA Today):

The dispute, closely followed by state officials, social workers and defendants' rights groups, marks the first time since 1977 that the justices will consider whether rape can be punished by death. The justices said no in the case three decades ago, involving a 16-year-old married woman whom the court referred to as an adult...

Louisiana argues that national outrage over sex crimes against children, along with efforts by some states to make rape a death penalty offense, should lead the court to uphold a Louisiana death sentence for Patrick Kennedy.

The trend, asserts Juliet Clark, assistant Jefferson Parish district attorney, "strongly supports imposition of the death penalty for this exceedingly grave offense."

Kennedy's lawyer counters that there are signs that society believes death is excessive for rape, including that no one in America has been executed for any rape in more than 43 years. "Although rape is a very serious crime," attorney Jeffrey Fisher says, "no rapist should be punished more severely than the average … murderer, who by definition is not subject to capital punishment." The death penalty has traditionally been reserved for the worst of society's criminals.

Passing the Buck(s) in Denver, Part II

Here's an interesting piece found related to an earlier post about a Denver D.A. who had discovered some clever accounting to cover the high costs of death penalty cases in Colorado:

A judge has ordered the removal of 18th Judicial District Attorney Carol Chambers in the upcoming trial of an inmate accused of killing another prisoner...

The judge says there are also questions about how Chambers' office is being reimbursed by the state through the Department of Corrections for prosecution costs.

New Mexico's Death Penalty Goes Broke

From the Death Penalty Information Center:

In a potentially far reaching ruling, a trial judge in New Mexico has barred the state from seeking the death penalty because the legislature has failed to provide adequate funding for defense representation. The state's Attorney General, Gary King, agreed that the capital prosecution cannot go forward. After finding that funding for the defense was insufficient and raised constitutional problems, King wrote, "The state now confesses the motion to dismiss filed herein and cannot in good faith under these circumstances oppose the dismissal of the death penalty in these cases." State District Judge Neil Candelaria took the death penalty off the table for Reis Lopez and Robert Young, two inmates accused of killing a prison guard, because no money was appropriated for death penalty indigent defense during New Mexico’s 2008 Legislative Session, despite a unanimous warning from the state Supreme Court. The legislative session ended in February.

Adding New Mexico to the list of states struggling to pay for capital punishment (see previous post on Georgia's problems), we've got to ask how much we're willing to pay for a system that hasn't been proven to prevent crime. Be sure to check out the website's facts on death penalty costs in Indiana.