Firing Squads for Death Row Inmates?

I read a few days ago in The Root that Trump is trying to push through a plan to perform executions by firing squad and the electric chair, and I was incensed. This is the most unconscionable … it is something I expect in Somalia, not in the U.S.! I hadn’t yet written about this latest abomination, but this afternoon, our friend Jeff has, and he has done such a great job that there is no need for me to re-invent the wheel! Thanks Jeff! 52 days and counting …

On The Fence Voters

A Fitting Swan Song for This Administration

Justice Department rushing to expand execution firing squads for federal death row inmates: CNN headline. November 28, 2020.

Of course, they are. Surprising nobody, it looks like the current loser president wants to end his reign of horror – with even more shock and awe. Because, as we’ve seen for most of his term, cruelty is the point, not the exception.

According to the CNN piece, there are some scheduled executions set to take place in the last days of the administration, and they’re doing everything they can to make them happen by rushing through changes to rules through an approved amendment to the “Manner of Federal Executions.”

That rule change gives federal prosecutors a wider variety of options to avoid delays if the state in which the inmate was sentenced doesn’t provide other alternatives. The rule was pushed forward by none…

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Cruel and Unusual …

The 8th Amendment to the U.S. Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Simple, right?  Not so much, actually.  The vague language has led to confusing and conflicting court rulings over the years, especially with shifts in society’s standards and the makeup of the Supreme Court.  What is ‘excessive’ bail or fines, and what constitutes ‘cruel and unusual’ punishments?  Better yet, who gets to decide those questions?

I will say right up front that I am against the death penalty.  I wasn’t always … I used to believe that certain people were irreparable and didn’t deserve to live.  And then I took a post-graduate class offered by The Innocence Project and learned how many death row inmates had been exonerated, how many times we had come too close to executing an innocent man or woman, and that changed my view.

Yesterday, the case of Missouri inmate, Russell Bucklew was decided by the Supreme Court.  In a nutshell, Mr. Bucklew was convicted of murdering a man who had been seeing his former girlfriend, and of kidnapping and raping her. His sentence … the death penalty.  Now, the preferred method of execution in Missouri is lethal injection, however Mr. Bucklew has a medical condition known as cavernous hemangioma which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat.  In the event of lethal injection, the tumours would rupture, causing him to sputter, choke and suffocate on his own blood for up to several minutes before he dies. Mr. Bucklew had requested a different form of execution, preferably nitrogen gas.

The Court handed down its decision yesterday, and in a 5-4 ruling said that Mr. Bucklew’s execution would proceed as planned, using lethal injection.  The justices who voted for this decision were Neil Gorsuch, Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh.  Justice Gorsuch wrote the majority opinion, claiming that Bucklew had waited too long to object to the way the state planned to execute him.

He further wrote …

Senate Holds Confirmation Hearing For Supreme Court Nominee Neil Gorsuch

Neil Gorsuch

“Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. The Eighth Amendment does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes. We see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative — assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution. A prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason.”

Gorsuch falsely claimed that Bucklew’s chosen alternative, Nitrogen gas, is not authorized by Missouri law and had never been used to carry out an execution in the United States.  In truth, it has been used by three states.

In her dissent, Justice Sonia Sotomayor wrote …

“There are higher values than ensuring that executions run on time. If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

I side with Justice Sotomayer on this … when a human life is involved, I prefer to err on the side of caution rather than expediency.

More importantly than just this one case, though, is the precedent this sets.  This may well be the most significant Eighth Amendment decision of the last several decades and the cruelest in at least as much time. Beyond the macabre facts of the Bucklew case, Gorsuch’s opinion also undercuts decades of Eighth Amendment law, potentially permitting states to revive punishments that fell out of favor 200 years ago.

Recall that the Constitution prohibits “cruel and unusual” punishments. The word “unusual” implies that, as a particular punishment becomes less and less common, it stands on weaker constitutional footing. Thus, as Chief Justice Earl Warren explained in a 1958 opinion, the Eight Amendment prohibits punishments that defy “evolving standards of decency that mark the progress of a maturing society.”

The number of death sentences in the United States collapsed over the last two decades, strongly suggesting that executions themselves defy evolving standards of decency that mark the progress of a maturing society. death sentencesIn total, only 25 people were executed in the United States in 2018, and only eight states performed any executions at all. One state, Texas, accounted for more than half (13) of these executions.

It is the opinion of this writer that the Supreme Court has just opened the door for us to regress to a time where the death penalty was carried out in ways that we, as a society, now view as ‘cruel and unusual’.  Of course, it is also the opinion of this writer that we should not be in the business of deciding to kill another human being.

A Case of “Mistaken” Identity

I would like to introduce you to this man, Demetrius Smith of Baltimore, Maryland.

demetrius smithLast month, Demetrius Smith had the opportunity to face a judge and have his 2010 murder conviction thrown out by Judge Barry Williams.  Smith spent five years in prison for a murder that he did not commit, and has spent nearly five more years trying to have the conviction removed from his record. Why?  Because he is black.

On March 24th, 2008, a man named Robert Long, who was a cooperating witness in a police investigation, was shot twice in the head, execution-style.  Two witnesses, a man and a female prostitute, claimed to have seen the murder and identified Smith as the murderer.  Smith was promptly arrested, but at his bail hearing, Judge Nathan Braverman released Smith on $350,000 bond, saying the evidence against him was ‘skeletal’. “It was probably the thinnest case I’d ever seen,” now-retired Judge Braverman said earlier this year.

The detective, Charles Bealefeld, who had focused on Smith in the killing of Robert Long, soon went after Smith again, this time arresting him for allegedly shooting a man in the leg during a late-night robbery. His evidence?  “Word on the street” was enough to send Smith back to jail. Smith lived near the victim and knew his parents … that was all Detective Bealefeld needed to know, apparently. To justify the arrest, Bealefeld found another prostitute on the street who would identify Smith from a photo array.  Interestingly, Bealefeld, along with two other Baltimore officers, left the department the following year amid accusations of racial bias.

(Remember, if you will, that Baltimore is also where in April 2015, another black man, Freddie Gray, was beaten to death in an arrest over possession of a switchblade knife.  None of the officers involved were convicted of his murder.)

Smith’s trial would not take place until January, 2010, during which time Smith remained in jail, continuing to claim he was innocent in both cases. In each case, the prosecution relied almost exclusively on eyewitness testimony — and in each case a key witness was a prostitute.  According to The Innocence Project …

Eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.”

The male witness in the first shooting elaborated on his testimony, saying that he knew Smith to be a drug king in the neighborhood and that Smith had shot Long to send a message to any who might try to undercut him.  Only problem was that the witness was a paid informant who himself had been arrested for an unrelated crime, and was set free in exchange for his testimony. And there was video camera evidence that the witness was not where he said he was at the time of the shooting. This, however, was not brought up during the trial and the information was not made available to Smith’s attorney.

The prosecutor, Rich Gibson, relied almost entirely on the eyewitness testimony of the man and the two prostitutes. A jury found Smith guilty and sentenced him to life in prison plus 18 years.

A year later, Gibson came to Mr. Smith with a deal known as an Alford plea, which allows a defendant to say for the record that he’s innocent of the crime but believes the state has enough evidence to convict him. The deal Gibson offered Smith was 10 years in exchange for a plea of guilty.  Smith was hesitant, knowing he was innocent and believing that at some point his innocence would be proven and he would be exonerated.  But, ten years beats life, and eventually Smith signed the agreement. Smith asked that a clause be added, an ‘escape hatch’, stating that if evidence were produced proving his innocence before the ten years, he would be released from prison.  Both prosecutor Gibson and Judge Barry Williams agreed, and the deal was done.

Just a few months later, the U.S. attorney’s office in Maryland had turned up Long’s real killer and informed Baltimore prosecutors that they had the wrong man. There is a long and interesting story about Long’s murder, but in the interest of time and space, suffice it to say that Long was killed because he was working with police, and it was the police who had put him in jeopardy by failing to use precautions to protect his identity.  So, Smith is not guilty and all is well, right?  Not quite.

Police had been advised of death threats to Long in the days leading up to his shooting, but they failed to act and they also failed to provide that information to Mr. Smith’s defense attorney – a clear violation of Smith’s constitutional rights. It was also discovered that the prostitute who testified had been six miles away at the time of the shooting.  She later said that she had been bullied, coerced and threatened into her testimony by Bealefeld who kept pointing to Smith’s picture and saying, “that’s him, isn’t it?”.

Rod Rosenstein, the top federal prosecutor in Maryland at the time and now U.S. deputy attorney general, announced that the federal case had “resulted in the exoneration of an innocent man and the conviction of the real killer.” But still, Smith remained in prison because, the city of Baltimore was not willing to admit they made a mistake.  The state had dropped the charges in August 2012, yet Smith sat in prison.

Smith was finally released in 2013, but the conviction remained on his record, making it impossible for him to get a job, lease an apartment, or return to a normal life.  With the help of new lawyers, he went back to court to try to have the conviction removed from his record, but his old nemesis, prosecutor Gibson objected.

Again, skipping through the lengthy detail, Smith’s motion was at that time denied based on Gibson’s unexplained objection.

Last month, January 2018, Smith once again faced both Gibson and Judge Williams, and this time, finally, after nearly ten years, he was successful.  Gibson, who is running for state’s attorney in another county, once again argued against removing the conviction, which he said wasn’t in the best interest of the community.  This time, the judge caught Gibson in a blatant lie and called him to task.  Judge Williams gave Smith a chance to tell Gibson his feelings …

“I sat in prison for five years. He [Gibson] couldn’t even look me in the face. Tell me ‘I’m sorry.’”

A happy ending for Smith?  Well, it depends on one’s perspective, for yes, he is now a free and clear man, but … he lost ten years of his life for no reason except … he is black.

Smith’s case is not an isolated one.  A study released in March 2017 by the National Registry of Exonerations found that black people convicted of murder or sexual assault are significantly more likely than their white counterparts to be later found innocent of the crimes, and also had to wait disproportionately longer for their names to be cleared than innocent whites.

The year is 2018.  Slavery ended in 1865, more than 150 years ago.  The Civil Righgs movement peaked in the 1960s, more than 50 years ago.  And yet even today, African-Americans, Hispanics and other minorities are discriminated against by the criminal justice system and by society as a whole. This is not something we can be proud of as a nation, and I have no confidence that the situation will improve any time soon.

Do all lives really matter?

Once again I wish to share a post written by Brosephus. Today he asks the question, “how can we say all lives matter when discrimination is still rampant, particularly in law enforcement and the Justice Department? Please take a moment to read … he has done his homework and draws some spot-on conclusions. Thank you, Brosephus!

The Mind of Brosephus

When I initially began writing this post, my mind was focused on the justice system.  This week there were two death penalty cases in the news that set my brain cells ablaze in that special way that forces me to burn Google searches like they’re hot dogs on a grill.  These two cases were interesting in their own rights, but they also led me to reading up on disparities in how the death penalty is applied in America.

Just hours before he was supposed to be put to death, Marcellus Williams received a stay of execution from the governor of Missouri.  His stay was granted because there was new evidence involving DNA that could potentially exonerate Williams for the killing of Felicia Gayle in 2001.  The testing was unavailable then, but testing on material on the murder weapon excluded Williams as a possible contributor to the DNA.  It is not…

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The Value of Life …

lethal injThe State of Arkansas is scheduled to execute seven men over an 11 day period beginning next Monday, 17 April 2017.  Arkansas has not executed anybody since 2005, and these seven men represent fully one-fifth of their death row population.  Why, all of a sudden, are they doing what some are referring to as ‘conveyor belt’ executions?  Because the state’s store of the sedative midazolam, one of the pharmaceuticals used in its lethal injection protocol, is due to expire at the end of April.  The cost of the drugs to perform an execution by lethal injection is said to be $16,500 per execution, up from $525 just a few short years ago.  So, I suppose Arkansas Governor Asa Hutchinson should be applauded for saving the state some $115,500 (the total replacement cost of the drugs).  Given Arkansas’ annual budget of $23.6 billion, these savings represent a whopping 0.000489%. Sorry, guvn’r, Filosofa is not applauding.

Regular readers are aware that I do not support the death penalty for a variety of reasons, most notably that if, twenty years down the road the person is found to have not been guilty, it is impossible to bring him/her back to life.  Other reasons include the value of a human life, and the fact that the rate of botched executions using lethal injection is 7.12%.  I understand the arguments that if a person committed a crime heinous enough to be sentenced to death, it doesn’t really matter as long as they end up dead.  I understand the argument, but I do not agree with it.


Bruce Ward

But back to the slated executions in Arkansas.  The first, scheduled for Monday, is to be Bruce Earl Ward, age 60. Mr. Ward, who has been in solitary confinement for 14 years, is not too concerned about his impending execution, as he believes he is certain to survive the triple lethal injection and walk out of the prison to fabulous wealth and public acclaim, then go on to found an evangelical ministry.  Mr. Ward, you see, is mentally ill.

Since 1986, under the Ford v Wainwright ruling of the US Supreme Court, reinforced by Panetti v Quarterman in 2007, states have been banned from executing prisoners who are insane or incapable of understanding the reason they are about to be put to death. Ward has consistently displayed signs of mental illness for almost 30 years, and was evaluated by a court-recognized psychiatrist and diagnosed as a paranoid schizophrenic.

“At heart here is someone who back in the late 1980s was not competent to stand trial but never had a fair court process to look at whether he was insane. The question was kicked down the road, and here we are now with him facing imminent execution,” said one of his legal team, Joseph Perkovich, an attorney with the Phillips Black project. Mr. Ward’s mental health challenges started young. Teachers at his high school vividly remember him eating flies during class. One of his post-conviction lawyers, Joseph Luby, testified in an affidavit that Ward “lacked a rational understanding about his case and was unable to fully and reasonably assist counsel in litigating it”.

While Ward’s case may be the most severe in terms of mental illness, it was reported that four of the seven inmates scheduled appear to suffer from serious mental illness or intellectual impairment, according to the Fair Punishment Project, which is affiliated with Harvard Law School.

johnsonIn the case of another, Stacey Eugene Johnson, there remains doubt as to his guilt, and The Innocence Project has petitioned the court to grant new DNA testing.  Johnson has maintained his innocence throughout, and in part his conviction was the result of testimony by a six-year-old who was initially determined incompetent to testify.

On Tuesday, the president of the American Bar Association asked Hutchinson to delay his “unprecedented execution schedule” because “expediency need not, and should not, be placed above the Constitution’s due process protections.” Earlier this week, a federal judge began to hear arguments from the inmates’ lawyers about the risks involved in using midazolam and in following the accelerated schedule. The lawyers have presented evidence that the schedule is making it impossible for them to defend their clients properly, depriving the inmates of their right to counsel and leaving the lawyers in violation of their ethical duties.

Little Rock lawyer Julie Vandiver said, “When the state undertakes the task of killing a person, there are multiple ways that it can go horribly wrong. Over and over, Arkansas officials have failed to treat this incredibly complex enterprise with appropriate gravity.”

In 2015, in a dissent to a Supreme Court ruling about lethal-injection drugs, Justice Sonia Sotomayor noted that, when midazolam does not work as expected, the drugs that then paralyze an inmate and stop his heart “do so in a torturous manner, causing burning, searing pain.” She described that as “what may well be the chemical equivalent of being burned at the stake.”

While I am against capital punishment in any circumstances, I set that aside for the moment as I posit that even those who support the death penalty must be appalled at the plan to take seven lives under these circumstances and for this reason.  What is the value of a human life?  Whose job is it to determine the value of a life?  I know that it is not mine, and I do not believe it is Governor Hutchinson’s, either.

In addition to the flurry of motions and petitions filed by attorneys for the seven men, two pharmaceutical companies have asked a judge to stop the use of their medicines for executions. Fresenius Kabi manufactures potassium chloride, the drug that prison officials use to stop the heart, and West-Ward Pharmaceuticals manufactures midazolam, the controversial sedative that prompted this madness.

As of 2011, the Environmental Protection Agency set the value of a human life at $9.1 million. Meanwhile, the Food and Drug Administration put it at $7.9 million — and the Department of Transportation figure was around $6 million. For the purpose of this conversation, the methods by which each arrived at their estimate, and the wide disparity, are irrelevant.  What is relevant here is that the various agencies of the United States Government have declared a single human life to be worth millions of dollars.  So how can anybody justify taking a life that is valued in the millions, to save a few thousand dollars’ worth of drugs? Think about it.

To Kill or Not to Kill …

Some crimes are so heinous, the perpetrators of those crimes so remorseless, that we want those criminals to pay for their evil deeds with their own lives.  We think they have no place in society, that in fact they do not belong in this world.  I get that, I really do, and in fact until a few years ago I was very conflicted on the issue of capital punishment.  But as I matured, as I read more, learned more, my thought processes opened to let in other perspectives, I began to question what I once firmly believed.  What, you ask, has gotten Filosofa started on this tangent?  The answer is today’s headline in the Washington Post: “After 18 botched IV attempts on a screaming, bleeding inmate, Ohio gets another chance to execute him”.

The death penalty as a form of punishment has a long history, dating back to 1608 when Captain George Kendall was hanged for the capital offense of treason in the Jamestown Colony of Virginia.  From 1930 to 2002, 4,661 executions were carried out in the U.S, about two-thirds of them in the first 20 years. Additionally, the United States Army executed 135 soldiers between 1916 and 1955 (the most recent). The largest single execution in United States history was the hanging of 38 American Indians convicted of murder and rape during the Dakota War of 1862. They were executed simultaneously on December 26, 1862, in Mankato, Minnesota.

There were no execution in the entire country between 1967 and 1977. In 1972, the U.S. Supreme Court struck down capital punishment statutes in Furman v. Georgia, reducing all death sentences pending at the time to life imprisonment.  In 1976, the Supreme Court reaffirmed the constitutionality of capital punishment in the case of Gregg v. Georgia.  The United States is one of only five industrialized democracies that still practice capital punishment. Among the others, Japan, Singapore, and Taiwan have executed prisoners, while South Korea currently has a moratorium in effect.

Arguments for and against capital punishment are based on moral, practical, and religious grounds. Advocates of the death penalty argue that it deters crime, is a good tool for prosecutors (in plea bargaining for example), improves the community by eliminating recidivism by executed criminals, provides closure to surviving victims or loved ones, and is a just penalty for the crimes it punishes. The arguments of opponents are equally compelling, saying it is not an effective means of deterring crime, risks the execution of the innocent and puts government on the same moral plain as the criminals. Many, including myself, would also argue that the administration of capital punishment is biased toward the poor and minorities who do not have access to the same quality of legal representation as others.

A couple of years ago, I took a law class that included a segment on wrongful convictions.  That segment was taught by members of The Innocence Project, a “national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustice.”  This class was an eye-opener for me.  To date, some 156 people who were on death row have been exonerated by The Innocence Project and similar organizations.  Think about that statistic … 156 human beings might have been executed for a crime they did not commit.  While admittedly, that is not my sole reason for changing my thoughts about capital punishment, it is certainly a major part of the reason.  Juries and judges are humans and humans sometimes make mistakes, especially when you consider the many flaws that exist in the legal/judicial system in the U.S.

Some would argue that executing a criminal saves the state the cost of housing and feeding him for the rest of his life, but there is a fallacy in that line of thought.  A man sentenced to the death penalty is likely to use every appeal available to him … paid for by the state.  Additionally, it costs approximately $90,000 more per year to house a prisoner on death row than in the general prison population. However, we are talking about a human life, and while politicians may try, it is still impossible to put a price tag on a human life. 

Charles Manson’s death sentence was reduced to life imprisonment in 1972, and he still lives today, at the age of 81.  Gary Ridgeway, the Green River Killer, is alive today at age 67.  David Berkowitz, Son of Sam, is alive and well at age 62.  Am I happy about these people surviving to old age on the taxpayer’s dime?  No.  BUT … I would rather they live to a ripe old age on my dime and yours than to take their lives.  For me, it is not a religious issue, nor a pragmatic one, but a humanist one.  I would rather see a thousand guilty men go free than to risk executing a single innocent man.  I make no attempt to sway anyone with this post, but simply felt a need to make my own opinion heard and understood.  I a very curious to hear some of your opinions on this issue, so please do feel free to comment!