Nov. 3, 2007 (2 articles)

Death penalty doomed?

Slowdown in executions offers nationwide chance to test public attitudes

By Mark Sherman, Associated Press

WASHINGTON - Stop executions for a while and perhaps they can be stopped
forever. That calculation has been part of the strategy of capital
punishment opponents for decades.

The Supreme Court-inspired slowdown in executions offers the first
nationwide opportunity in 20-plus years to test whether the absence of
regularly scheduled executions will lead some states to abandon the death
penalty and change public attitudes about capital punishment.

Recent decisions by judges and elected officials have made clear that most
executions will not proceed until the Supreme Court rules in a challenge by
two death row inmates to the lethal injection procedures used in Kentucky.
The inmates say Kentucky's method creates the risk of pain severe enough to
be cruel and unusual punishment, banned by the Eighth Amendment.

Similar procedures are used in Texas, the far-and-away leader in lehtal
injections, and the 16 other states that have executed prisoners in the past
two years.

It is clear the high court will not go so far as to outlaw the use of lethal
injections. That issue is not even before the court in the Kentucky case.

Rather, the justices could decide whether Kentucky's procedures violate the
Constitution and what standard the courts should use to evaluate the risk a
prisoner will feel pain as he or she is put to death.

No matter how the court rules, it appears there will be few, if any
prisoners executed before the court rules, probably by late June. Just this
week, the Supreme Court halted an execution in Mississippi less than an hour
before a convicted killer was scheduled to be put to death by lethal
injection. He had asked for a delay at least until the court decides the
Kentucky case.

"We're probably looking at delaying executions, not preventing them," said
Ronald Tabak, a New York-based lawyer with the Skadden Arps firm who has
represented death row inmates.

Tabak said states with the death penalty now have a chance to review capital
punishment procedures. The American Bar Association has for the past 10
years called for such a freeze and review.

"The ABA's position is unless you have fair practices, exceutions should not
resume," said Tabak, who has worked with the lawyers' organization on this
issue.

But Douglas Berman, a sentencing expert at the Ohio State University law
school, said the possibility exists for more dramatic action.

"The abolitionists will say if we have no executions for six months to a
year, and the universe is not imploding and murder rates are not going
through the roof, ... it becomes easier to say, "Why do we even need the
death penalty, let's just get rid of it," Berman said.

"Texas and other high-execution states aren't going to get there anytime
soon, but the argument against capital punishment gets even more force in
those states squeamish about the death penalty in the first instance,"
Berman said.

Questions about the administration of lethal injections are only part of the
equation.

Death-penalty opponents also have pointed to doubts about the competence of
some court-appointed defense lawyers and the rise in the number of
exonerations through DNA evidence of people already convicted of crimes.

Polling has shown that the public increasingly believes that life in prison
without parole will keep the worst offenders off the streets. A recent
Associated Press-Ipsos poll that asked what method of punishment people
prefer for murderers found only a slight preference for the death penalty
over life in prison - 52 percent to 46 percent.

"There is a deeper societal appreciation for life without the possibility of
parole. Ten to 15 years ago, no one thought they meant it," Berman said.

At the same time, there have been several studies, challenged by the
anti-death penalty camp, that have shown a deterrent effect in the use of
capital punishment. Also, public support for executions remains high. More
than two-thirds of those polled favor the death penalty for murderers when
the question does not include other possible punishments.

Then there is the example of the last time the country went without
executions for an indefinite period. There were no executions from June 1967
to January 1977.

The Supreme Court in 1972 struck down 40 state death penalty laws, but did
not ban capital punishment as cruel and unusual.

Some justices at the time thought their decision in Furman v. Georgia would
bring an end to the death penalty.

By 1976, though, in the midst of a "law and order" backlashto the court's
decision in favor of the rights of criminal defendants, elected officials in
35 states had adopted laws to comply with the death penalty ruling. A more
conservative court upheld some of those laws, and a half-year later
executions resumed.

Nearly 1,100 people have been put to death since 1977 and more than 3,000
others are on death row.

Earlier this week, the Ohio Supreme Court ruled that a judge can hold
hearings on whether Ohio's lethal injection procedures are constitutional.

The court ruled 5-2 that Judge James Burge of Lorain County Common Pleas
Court has the authority to hold the hearings and to order the state to turn
over documents related to the execution process. The court rejected the
state's argument that Burge, as the presiding judge of a criminal trial,
does not have the authority to decide the constitutionality of death penalty
law.

Burge has ordered the state to produce detailed explanations of the
equipment and procedures used during executions, including an "exhaustive
and detailed" list of the qualifications and training of the state's
execution team.

Burge has ordered the hearings in the case of Ruben Rivera, charged in the
2004 shooting death of Manuel Garcia. Rivera asked Burge to drop the death
penalty aspects of his case on the grounds that the state's lethal injection
process amounts to cruel and unusual punishment.

Since then, two other Lorain County defendants facing death penalty charges
have made similar requests of other judges.

ABA CITES PROBLEMS IN STATE DEATH PENALTY SYSTEMS

Serious problems in state death penalty systems compromise fairness and
accuracy in capital punishment cases and justify a nationwide freeze on
executions, the American Bar Association says.

Problems cited in a report released in Washington Sunday by the lawyers'
organization include:

Spotty collection and preservation of DNA evidence, which has been used to
exonerate more than 200 inmates.

Misidentification by eyewitnesses.

False confessions from defendants.

Persistent racial disparities that make death sentences more likely when
victims are white.

The report is a compilation of separate reviews done over the past three
years of how the death penalty operates in eight states: Alabama, Arizona,
Georgia, Florida, Indiana, Ohio, Pennsylvania and Tennessee.

Teams that studied the systems in Arizona, Florida and Pennsylvania did not
call for a halt to executions in those states. But the ABA said every state
with the death penalty should review its execution procedures before putting
anyone else to death.

In September, the ABA sent a nearly 500-page report to Ohio Gov. Ted
Strickland, asking him to halt executions to allow for a review of the
state's death penalty system. The ABA's report followed a 30-month
examination in which the ABA said Ohio met only four of the ABA's 93
recommendations to ensure a fair death penalty system.

"After carefully studying the way states across the spectrum handle
executions, it has become crystal clear that the process is deeply flawed,"
said Stephen F. Hanlon, chairman of the ABA Death Penalty Moratorium
Implementation Project. "The death penalty system is rife with
irregularity."

The ABA, which takes no position on capital punishment, did not study lethal
injection procedures that are under challenge across the nation. The
procedures will be reviewed by the Supreme Court early next year in a case
from Kentucky.

State and federal courts have effectively stopped most executions pending a
high court decision.

Prosecutors and death penalty supporters have said the eight state studies
were flawed because the ABA teams were made up mainly of death penalty
opponents.

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Source : Associated Press

http://news.kypost.com/apps/pbcs.dll...S02/711030313/
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Nov. 3, 2007

Death Penalty Under Scrutiny

By Gary Feuerberg, Epoch Times

WASHINGTON, D.C.-The American Bar Association (ABA) issued a severe critique
Oct 30 of the way states are handling death penalty cases. A three year
study found significant racial disparities in imposing the death penalty,
mistakes or fraud in the crime laboratories, lack of preservation of DNA
evidence, substandard practices in police interrogations and
identifications, electoral pressures influencing judges, wholly inadequate
representation for indigent defendants, and mishandling of mentally impaired
persons throughout the legal process.

At the news conference held at the National Press Club, the ABA released to
the public the detailed analysis of how the death penalty is being
implemented in eight sample states, which are Alabama, Indiana, Ohio,
Pennsylvania, Tennessee, Arizona, Florida and Georgia.

None of these states, and by extension probably none of the rest of the 38
states that permit the use of the death penalty, is providing the essentials
to make the system "fair" and "accurate," according to the ABA. The ABA does
not take a position either for or against capital punishment, but the
investigations strongly support reform in the way it is implemented in the
38 states. Since 1997, the ABA has called for a nationwide moratorium on
executions.

"After carefully studying the way states across the spectrum handle
executions, it has become crystal clear that the process is deeply flawed,"
said Stephen F. Hanlon, chairman of the ABA Death Penalty Moratorium
Implementation Project and host of the conference.

Each of the states had a local team of legal experts assess aspects
pertaining to due process and fairness related to the death penalty.

Serious Problems Found by the ABA State Analysis Teams

Below is a summary of a few of the highlights in the reports or spoken at
the news conference which featured seven specialists on the subject in
addition to the host. Sometimes the wording is taken verbatim from the "key
findings" in the overall summary report.

- Before the entire legal process has run its course, states are generally
discarding or destroying evidence (physical or biological) that could prove
innocence. Florida and Georgia were the only two states of the eight that
are pretty good about preserving evidence.

- One state in the study, Alabama, does not have a policy to provide access
to DNA testing for the defendant. Access to DNA testing was not allowed for
Darryl Grayson, though it could have probably proved his guilt or innocence,
said Seth Miller, executive director of the Florida Innocence Project.
Grayson was executed last July.

- Most states are not requiring the police to videotape or audiotape the
entirety of interrogations in murder cases. The practice is sporadic in the
eight states studied. States are not requiring crime labs and medical
examiner offices be accredited. Most states have had at least one serious
incident of crime lab error or fraud, and many crime labs are seriously
underfunded.

- The courts have found "serious misconduct" by prosecutors in capital cases
in most states, yet the prosecutors are not disciplined. Defense attorneys
handling death penalty cases are not required to meet minimum standards in
training and experience in many states. The compensation paid to appointed
capital defense attorneys is often woefully inadequate.

- Some states are failing to provide counsel during the appeal process, and
all states fail to provide counsel in clemency proceedings.

Much discussion is taken up in the reports with issues of discrimination and
undue influence in capital cases. After a death sentences has been imposed,
a review of similarly situated defendants should take place to ensure
justice is "proportionate" and that discrimination did not occur. These
reviews, if conducted at all, tend to be done in a cursory fashion. In
Arizona, there is no review conducted by the state supreme court "to ensure
the death penalty is reserved for the worst crimes and the worst criminals,"
said Hanlon.

Judges are frequently influenced by the electoral pressures. Judge Morris
Overstreet said, "You don't tend to get elected if you say you are going to
be soft on crime." Some judges have even used cases they tried, or recently
tried, in campaign brochures, said the former judge of the Texas Court of
Criminal Appeals. When judges discuss and advertise their views of the death
penalty, it can bias their judicial independence, said Judge Overstreet.

All eight states that were investigated showed significant racial
disparities in their handling of capital cases. In states that acknowledged
the problem, little, if anything, has been done to rectify the problem. In
Ohio, you are almost four times more likely to receive the death sentence if
you kill a white person than if you kill a black, said Hanlon. In a study of
four of the states (IN, TN, GA, and OH) between 1981-2000, the likelihood of
receiving the death penalty is usually highest for whites killing whites,
and substantially lower for blacks killing blacks, said Ray Paternoster,
professor of criminology, University of Maryland.

Mental Illness and Retardation

The Supreme Court has said that it is unconstitutional to execute offenders
with mental retardation (Atkins v. Virginia). Between 2 and 5% charged with
a capital crime suffer from serious mental illness such as schizophrenia or
psychosis, or mental retardation, said Professor Chris Slobogin, University
of Florida School of Law. Even though mentally ill persons are often very
suggestive and vulnerable, police tend to treat them no differently in their
interrogations than other offenders, which can lead to false confessions.

Most states fail to properly instruct jurors of the difference between the
defense of insanity and a mental impairment as a mitigating factor at
sentencing. In Pennsylvania, nearly all capital case jurors (98.6%) failed
to understand some of the juror instructions, said Hanlon. Juries often
erroneously equate mental retardation with dangerousness, and then perceive
the mental condition as an aggravating factor rather than as a mitigating
factor, said Professor Slobogin.

Status of the Death Penalty

The topic of the death penalty has received a lot of news coverage lately.
Last Tuesday evening, the Supreme Court granted a stay in execution just 19
minutes before the inmate was to be executed by lethal injection which all
states use except one (Nebraska). The reason has to do with the
Constitutionality of the "****tail" employed to carry out the execution. It
appears certain that the high court intends to block further executions
until it decides a Kentucky case next spring.

State courts have also been active in staying executions. No fewer than 18
scheduled executions were halted in five states during the first quarter of
2007, according to the Death Penalty Information Center. Many political
leaders are making public their reservations about using the death penalty,
including Maryland's governor, Martin O'Malley, Governor Ted Strickland of
Ohio, Phil Bredesen of Tennessee, and former Governor George Ryan of
Illinois. The latter two called a moratorium on further executions.

The Supreme Court reinstated the legality of the death penalty in 1976. Over
3,000 persons are on death row. Most are in California (660), Florida (397),
Texas (393), Pennsylvania (226), Alabama (195), Ohio (191), North Carolina
(185), Arizona (124), Georgia (107) and Tennessee (107), according to the
Death Penalty Information Center in August.

Majority of Americans still support capital punishment, despite the fact
that 89 countries legally abolished the death penalty for all crimes and 40
more countries may retain it for special crimes, but in practice no
executions are being carried out in these countries either. In the U.S., by
contrast, the total number of executions since 1976 was 1,090. The total
number last year (2006) was 53.

The majority of executions are being carried in China, Iran, Saudi Arabia,
Pakistan, Yemen, Vietnam, and the United States. Nearly all of these
countries are considered rogue states.

Even many supporters of capital punishment want to see it carried out more
equitably. What may have shaken up the confidence of the public in the death
penalty are the 120 individuals--possibly more now--on death row who have
been exonerated, according to Andrew Cohen, chief legal analyst of CBS News.
Many of those formerly in favor of capital punishment find "life
imprisonment without possibility of parole," which is increasing being made
available to jurors, as an acceptable alternative to the death penalty.

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Source : The Epoch Times

Epoch Times | Death Penalty Under Scrutiny

We'.just dont! need this very questionable issue' and the other real factors'
Ive heard many former assit wardens' state!. 'That this is clearly wrong!
To 'follow and The Wardens'.. have ..said ..This Death Sentence Should be.
Stopped' completely Cruzer

I thought from reading some previous materials they were placing a no execution stay? Maybe they will get rid of the DP then all together.

__________________

i sure hope so. they keep confusing me, I to thought it was a stay and well, heck if i know