"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Wednesday, June 28, 2017

Capital Punishment and Extreme Mental Torture

The death penalty, the Supreme Court claims, is an act of retribution; so whatever suffering the condemned endure is part of the price they pay for their crimes. Punishment, after all, is meant to inflict pain. And while the Court disapproves of any form of physical abuse of prisoners (such as beatings, prolonged sleep deprivation, or withholding food and water or necessary medications), thus far it has ignored mental suffering endured by men and women condemned to death. In the Court's reasoning, even though life sentences without parole are available, only a "death for a death" will do. In Gregg, the Court says: "Retribution is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." And, as I noted in my letter to Pope John Paul II, the U.S. Supreme Court has ruled that killing human beings is not an assault on their dignity. Thus, by legalizing premeditated homicide, the Supreme Court legalizes torture. Morally speaking, this is dangerous, for it presupposes that a system of justice can in all cases identify the truly guilty with a degree of certainty that, we know, cannot be obtained. This ruling also seems oblivious to the corrosive effects on the souls of those who carry out the killings. "Afterward, when I get home I sit up in my La-Z-Boy chair the rest of the night. I can't sleep, can't eat," Major Kendall Coody told me after participating in his fifth execution in the Louisiana death chamber. And his participation in the killings wasn't even direct. After prisoners were executed, his job was to collect their personal belongings to send to their families. 

When the Abu Ghraib scandal first broke, government officials tried to confine blame to a few rogue soldiers, but inquiries revealed that the soldiers were working within a climate of abuse that had raised questions all the way up to the White House. Memos documented that government officials first sought legal advice before ordering torture tactics against terrorist suspects. The question of Pentagon and Defense Department officials to their lawyers is shocking in its callous simplicity: "The Geneva Conventions prohibit us from torturing or humiliating prisoners of war; how might we legally circumvent those prohibitions so we can inflict pain on detainees during interrogation and not be held legally accountable?" The response was to replace the designation "prisoners of war" with "enemy combatants."

"Prisoners of war" have human rights protected by international agreements. There is little consensus on the legal rights, if any, of "enemy combatants." Terrorist suspects detained in U.S. bases in Afghanistan, Guantanamo Bay, Cuba, and in Abu Ghraib and other bases in Iraq may be held indefinitely with-out charge and without legal counsel as long as their captors see fit.' International human rights groups have been barred from the camps. As of June 2004, more than five thousand foreign nationalists have been jailed and stripped of their civil liberties in the United States, Guantanamo, or Iraq since September 11, in anti-terrorism "prevention detention" measures. Military intelligence officers told the Red Cross that 70-90 percent of the people locked up in Iraq have been arrested by mistake. 

Torture was legalized under Nazi Germany's Nuremberg Laws, which "redefined" Jews as non-citizens and non-human. By the same legal logic, the Louisiana Legislature legalized cockfighting by designating roosters as "fowl," not "animals," thus circumventing the state's prohibition against cruelty to animals.' 

President Bush's legal counsel, Alberto Gonzales, remarked that the nature of the war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint [italics added] some of its provisions." Gonzales, you may recall, gave legal guidance to Governor Bush, who dispatched 152 persons to the Texas death chamber. 

But the Pentagon's list of approved "stress and duress" interrogation techniques, which includes throwing suspects against walls, hooding them, depriving them of sleep for days at a time, and binding them in painful positions, forbids "extreme" mental torture, such as "threatening detainees with immediate death." (italics added) 

The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (wording from Article 5 of the UN Universal Declaration of Human Rights), which has been ratified by the U.S. Senate, holds us to a higher standard of moral con-duct than we have been able to achieve on our own. By signing on to the Convention Against Torture, we have committed ourselves never to engage in "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted." 

The concept of severe "mental" suffering is revolutionary. It reveals an "evolving standard of decency" of human rights never before embraced by the United States. With these words, the United States Supreme Court and its people face a new reality about the death penalty: There is simply no way that we are ever going to figure out how to preordain the killing of a human being without inflicting severe mental suffering. 

The defenselessness of persons under the control of their captors is central to understanding torture. If someone can resist an aggressor, we don't call it torture. It is the defenselessness of the victim that makes us loathe torturers and cringe when we see the photographs of our soldiers smiling and giving a thumbs-up at the plight of suffering Iraqi 'prisoners. 

I was glad when the Supreme Court consulted the wisdom and experience of the world community in Atkins and ruled that executing mentally retarded persons is an act of cruelty. Most of our democratic allies stopped killing mentally handicapped persons long ago, though Justice Scalia, as we have seen, dissented in Atkins, scornfully refusing to consider international moral standards of cruelty. "[Other countries'] notions of justice are (thankfully) not always those of our people," he said. 

Sister Helen Prejean
Sister Helen Prejean
I wonder what the Framers of the Constitution would think of how the United States holds on to the death penalty while so many of our allies have abandoned it over the last fifty years. The Framers wrote the best Constitution they could, incorporating the best ideas and values from other countries. They very much wanted the new Republic to stand tall among other nations in its respect for the human person against the massive powers of the state. I think they would be appalled by the way constitutional protections of defendants have been ignored or abused in the administration of the death penalty. In the absence of those protections, they would not be surprised that so many innocents have been caught up in the system. I think they'd be shocked at the legalistic quagmire the courts have created and immensely saddened by the Supreme Court's heavy emphasis on procedure over law. With long-term imprisonment available, as it was not in their day, they'd be quick to see that capital punishment was no longer necessary or desirable. And I think they'd take Senate ratification of the UN Convention Against Torture very seriously, embracing its prohibition against mental and physical cruelty. I can see them proudly holding high the United Nations Universal Declaration of Human Rights on which the torture convention was based.

The execution chamber in Central Prison, Raleigh, North Carolina, is airtight. A wooden chair with a high back, armrests, and footrest is mounted against the chamber's back wall. Under the chair a metal container contains cyanide, and under the cylinder is a metal canister filled with a sulfuric acid solution. When executioners turn three keys in the control room, an electric switch causes the bottom of the cyanide container to open, dropping the cyanide into the acid, which produces the lethal gas. A heart monitor, which can be read in the control room, is attached to the chest of the condemned. After the warden pronounces the prisoner dead, ammonia is pumped into the chamber to neutralize the gas, and exhaust fans pump the inert fumes from the chamber. Members of the prison staff then enter the chamber and remove the body for release to the county medical examiner. Leather belts, strapped across chest, arms, and legs, affix the condemned to the chair, and a leather mask with small holes near the nose and mouth is attached to the face. 

In 1983, the General Assembly of North Carolina gave the condemned the option to choose death by lethal injection. Under this provision, the warden must be notified in writing by the condemned at least five days before the execution that he or she would prefer death by lethal injection. 

David Lawson chose to die in the gas chamber. He said he wanted the people of North Carolina to know they were killing a man. He tried to have his execution videotaped and broadcast, but state and federal courts denied his request, arguing that he did. not have a constitutional right to make his death public. 

In a last appeal to the U.S. Supreme Court, David Lawson's lawyers requested a stay of execution, arguing that execution by gas was a form of cruel punishment and in violation of the Eighth Amendment, but the Court refused to hear the petition.

On June 15, 1994, David Lawson was killed by the state of North Carolina for the murder of Wayne Shinn, whom he had shot during a burglary in 1980. It took thirteen minutes for the gas to kill him. 

Lawson, wearing only socks and boxer shorts over a diaper, sat in the chair and watched as guards strapped his chest, arms, and legs to the chair and hooked up an electrode over his heart. Guards then placed a leather mask over his face. Soon after 2:00 a.m., the cyanide was dropped into the acid and the lethal fumes began to rise. Lawson, choking and gasping and straining against the straps, took short breaths and cried out, "I am human. I am a human being." He pushed up on his feet and kicked his legs. His hands gripped the ends of the armrests. Drool and tears slid from under the mask. A few deep breaths of the gas would have killed him sooner, but David Lawson continued to take short breaths and despite paroxysms of choking cried out until his voice was but a whisper: "I . . . am . . . a human . . . being."

➤ Excerpted from The Death of Innocents, An Eyewitness Account of Wrongful Executions, Sister Helen Prejean, Vintage Books, 2006. Sister Helen Prejean is the author of Dead Man Walking. She travels extensively, giving, on average, 140 lectures a year, seeking to ignite public discourse on the death penalty. She is a member of the Sisters of St. Joseph of MĂ©daille and lives in Louisiana. (NB: Commercial links provided for information purpose only.)

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Texas death row inmate loses at U.S. Supreme Court, could face execution date

The U.S. Supreme Court ruled against a Texas death row inmate Monday, making Erick Davila's case ineligible for review in federal court.

A Texas death row inmate whose case made it all the way to the U.S. Supreme Court could now face an execution date after the justices ruled against him in a 5-4 decision Monday morning split among ideological lines. The man was convicted in the 2008 shooting deaths of a 5-year-old girl and her grandmother in Fort Worth.

The question before the high court in Erick Davila's case was whether claims of ineffective assistance of counsel during state appeals should be treated the same as during the original trial. Appellate courts throughout the country have ruled differently on the issue, a situation that often prompts the Supreme Court to step in. In the Monday opinion presented by Justice Clarence Thomas, the justices ultimately decided that the different types of lawyers should not be treated the same, making Davila's case ineligible for consideration in federal court.

"Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote in his opinion, joined by Chief Justice John Roberts and justices Anthony Kennedy, Samuel Alito, and Neil Gorsuch.

Justice Stephen Breyer, a notable death penalty critic, wrote a dissenting opinion, joined by liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

"The fact that, according to Department of Justice statistics, nearly 1/3 of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one," Breyer wrote in his dissent.

Davila's case started in Fort Worth in 2008, when he fatally shot a rival gang member's 5-year-old daughter and mother during a child's birthday party, according to court documents. Davila, now 30, claims he only meant to kill his rival, Jerry Stevenson. In his confession to police he stated he was trying to get Stevenson and "the guys on the porch."

If the jury had believed Davila only intended to kill 1 person, he would have been ineligible for a capital murder verdict and the death penalty would have been off the table. In this case, Davila must have intended to kill multiple people to be found guilty of capital murder.

During deliberations, the jury asked the judge for clarification on the intent issue, and the judge said Davila would be responsible for the crime if the only difference between what happened and his intention was that a different person was hurt. He did not affirm to the jury that Davila must have intended to kill more than 1 person to be found guilty.

It's that jury instruction that Davila's long, complicated case hinged upon. His lawyer at trial objected to the instruction, but was overruled. But in his automatic, direct appeal after being convicted and sentenced to death, his new lawyer never mentioned the judge's instruction, even though that is the appeal where death-sentenced individuals raise what they think are wrongdoings from the trial. Afterward, during his state habeas appeal, which focuses on issues outside of the trial record, the lawyer didn't fault the previous lawyer for not raising the issue on direct appeal.

The next step in the death penalty appeals process after going through state courts is to move into the federal court system. But federal courts generally can't rule on issues that could have been raised in state appeals. So, when Davila's current lawyer, Seth Kretzer, tried to claim his client's direct appellate lawyer was inadequate for not raising the issue of an improper jury instruction by the judge, the federal courts said they couldn't look at the issue because it could have been raised by the state habeas appellate lawyer.

"The way the law works right now is if the trial counsel made a mistake, the federal court could save the inmate's life, but if the appellate counsel made the mistake, they would have to go ahead and execute," Kretzer told The Texas Tribune in January.

One exception to this rule was created in 2012 by the Supreme Court in Martinez v. Ryan, which says that if a state habeas lawyer failed to question a trial lawyer's inadequacy, the federal courts can review the claim to ensure that defendants are guaranteed a fair trial. But Davila argued that the Martinez exception should apply to inadequacy of the appellate attorneys, as well.

Federal courts have disagreed on this issue, with most circuit courts ruling that appellate lawyers can't be treated the same as trial lawyers. But the often liberal 9th U.S. Circuit Court of Appeals has previously ruled there is no distinction between the 2.

During oral arguments on the case in late April, conservative justices appeared concerned that opening up the exception would cause a "flood" of appeals into the federal court system, but the left-leaning members of the court dismissed the idea. Justice Sonia Sotomayor predicted there may be an "initial uptick of claims until people settle down" and realize only a small number of cases are eligible for federal review.

The state of Texas also argued in its brief to the high court that in Davila's case, none of the larger legal questions matter, because even though the 5th U.S. Circuit Court of Appeals ruled that it couldn't review the case based on its interpretation of the Martinez exception, it still reviewed the issue of the jury instruction and rejected Davila's argument that it was improper.

This was the 3rd Texas death penalty case heard by the U.S. Supreme Court this term, which began in October and ends this week, but it was the 1st time the justices sided with the state over the inmate. In February, the court agreed with inmate Duane Buck that his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black. And in March, the justices sided with Bobby Moore, declaring that Texas' method for determining intellectual disability for death row inmates was unconstitutional.

Davila's lawyer, Seth Kretzer, told the Texas Tribune Monday after the Supreme Court announced its decision that the 5-4 ruling shows "why it's so important to keep pressing these things." Kretzer is looking into other possible appeals for Davila in the state courts, but recognizes that Tarrant County could soon set an execution date for his client.

"We took this case farther than anyone thought we would, and we intend to keep fighting it," he said.

Source: Texas Tribune, June 27, 2017

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Former Florida Chief Justice Says Death Penalty Process Faces Chaos

Florida's death chamber
Florida's death chamber
A former chief justice of the Florida Supreme Court says the state’s death penalty process will be left in “chaos” as a result of recent court decisions involving how the process is administered.

In the past, a jury would recommend whether someone convicted of murder should be given the death penalty. The jury’s recommendation could be a simple majority. But, the final decision as to whether a person would receive the death penalty was left up to the judge.

The U.S. Supreme Court ruled that giving the judge the final say violated a defendant’s right to a trial by jury. The high court also took exception with a majority vote, saying the jury’s decision on the death penalty needed to be unanimous. (1)

Earlier this year, the Florida Legislature enacted a law requiring a unanimous jury decision before a person can be sentenced to death.

The rulings mean that approximately 150 inmates on Florida’s death row can now request a new sentencing hearing to determine if their death sentences will stand.

Former Florida Supreme Court Chief Justice Gerald Kogan says that could be a big problem.

“That’s not an easy thing to go back and dig up all of this evidence and especially to dig up all the witnesses,” Kogan told reporters during a conference call Tuesday afternoon. “We have been very, very negligent in the state of Florida in handling these types of cases.”

Kogan said there are inmates on Florida’s death row who were convicted 30 or more years ago. He says it won’t be as simple as letting a new jury read the transcripts from the old trial. He says both sides will have to put on evidence for a new jury to consider.

“You’ve got a mess and there’s no doubt about that,” said Kogan.

Juanita Perez’s son, Benjamin Hamilton, and granddaughter, Ivory, were both murdered in Brevard County in 2009. The man convicted of killing them, Justin Heyne, did not receive a unanimous decision in the sentencing phase and will likely receive a new hearing.

“The fact that this process has to begin all over again when we were promised it was over. It’s harmful to all families, even if you want it or not,” said Perez. “The only one who benefits from this is the state attorney.”

Perez said she didn’t ask for the death penalty in her son’s and granddaughter’s murders in the first place and doesn’t want to be put the process again.

(1) DPN received the following comment: "The US Supreme Court did not address the issue of unanimity at all. The requirement that the jury vote be unanimous was imposed by the Florida Supreme Court, construing long-standing Florida law as well as the Florida and United States Constitutions." - Florida Center for Capital Representation at FIU College of Law.

Source: The Capitolist, John Lucas, June 27, 2017

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Deputy governor-elect to establish sharia tourism zone in Jakarta

Deputy governor-elect Sandiaga Salahuddin Uno
Deputy governor-elect Sandiaga Salahuddin Uno
Deputy governor-elect Sandiaga Salahuddin Uno said on Tuesday that he planned to establish a sharia tourism zone in Kwitang, Senen, Central Jakarta.

Sandiaga explained that he had been inspired to build such a zone after he visited Ali bin Abdurrahmad Al Habsyi, better known as Habib Kwitang, at Ar Riyadh Mosque in Kwitang on Tuesday.

Kwitang is known among local Muslims for its regular learning forums held by a local Islamic center.

"I think it will be interesting if there is a religious tourism zone [in the area], which is properly arranged with tents. Hence, mobility can be ensured," Sandiaga said as quoted by wartakota.tribunnews.com.

He said he planned to realize the idea by building home stays in the area after his inauguration as Jakarta deputy governor in October.

He expressed hope that the tourism zone would support small and medium enterprises in Jakarta.

Source: The Jakarta Post, June 28, 2017

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Tuesday, June 27, 2017

A Presumption of Guilt

Lynching in America
Lynching in America
People of color in the United States, particularly young black men, are often assumed to be guilty and dangerous. In too many situations, black men are considered offenders incapable of being victims themselves. As a consequence of this country’s failure to address effectively its legacy of racial inequality, this presumption of guilt and the history that created it have significantly shaped every institution in American society, especially our criminal justice system.

Between the Civil War and World War II, thousands of African-Americans were lynched in the United States. Lynchings were brutal public murders that were tolerated by state and federal officials. These racially motivated acts, meant to bypass legal institutions in order to intimidate entire populations, became a form of terrorism. Lynching had a profound effect on race relations in the United States and defined the geographic, political, social, and economic conditions of African-Americans in ways that are still evident today.

Many African-Americans were lynched not because they had been accused of committing a crime or social infraction, but simply because they were black and present when the preferred party could not be located. In 1901, Ballie Crutchfield’s brother allegedly found a lost wallet containing $120 and kept the money. He was arrested and about to be lynched by a mob in Smith County, Tennessee, when, at the last moment, he was able to break free and escape. Thwarted in their attempt to kill him, the mob turned their attention to his sister and lynched her instead, though she was not even alleged to have been involved in the theft.

Records show that racial terror lynchings from Reconstruction until World War II had six particularly common motivations: (1) a wildly distorted fear of interracial sex; (2) as a response to casual social transgressions; (3) after allegations of serious violent crime; (4) as public spectacle, which could be precipitated by any of the allegations named above; (5) as terroristic violence against the African-American population as a whole; and (6) as retribution for sharecroppers, ministers, and other community leaders who resisted mistreatment—the last becoming common between 1915 and 1945.

Our research confirmed that many victims of terror lynchings were murdered without being accused of any crime; they were killed for minor social transgressions or for asserting basic rights. Our conversations with survivors of lynchings also confirmed how directly lynching and racial terror motivated the forced migration of millions of black Americans out of the South. Thousands of people fled north for fear that a social misstep in an encounter with a white person might provoke a mob to show up and take their lives. Parents and spouses suffered what they characterized as “near-lynchings” and sent their loved ones away in frantic, desperate acts of protection.

The decline of lynching in America coincided with the increased use of capital punishment often following accelerated, unreliable legal processes in state courts. By the end of the 1930s, court-ordered executions outpaced lynchings in the former slave states for the first time. Two thirds of those executed that decade were black, and the trend continued: as African-Americans fell to just 22 percent of the southern population between 1910 and 1950, they constituted 75 percent of those executed.

Probably the most famous attempted “legal lynching” is the case of the “Scottsboro Boys,” nine young African-Americans charged with raping two white women in Alabama in 1931. During the trial, white mobs outside the courtroom demanded the teens’ executions. Represented by incompetent lawyers, the nine were convicted by all-white, all-male juries within two days, and all but the youngest were sentenced to death. When the NAACP and others launched a national movement to challenge the cursory proceedings, the legal scholar Stephen Bright has written, “the [white] people of Scottsboro did not understand the reaction. After all, they did not lynch the accused; they gave them a trial.” In reality, many defendants of the era learned that the prospect of being executed rather than lynched did little to introduce fairness into the outcome.

Today, large racial disparities continue in capital sentencing. African-Americans make up less than 13 percent of the national population, but nearly 42 percent of those currently on death row and 34 percent of those executed since 1976. In 96 percent of states where researchers have examined the relationship between race and the death penalty, results reveal a pattern of discrimination based on the race of the victim, the race of the defendant, or both. Meanwhile, in capital trials today the accused is often the only person of color in the courtroom and illegal racial discrimination in jury selection continues to be widespread. In Houston County, Alabama, prosecutors have excluded 80 percent of qualified African-Americans from serving as jurors in death penalty cases.

The crucial question concerning capital punishment is not whether people deserve to die for the crimes they commit but rather whether we deserve to kill. Given the racial disparities that still exist in this country, we should eliminate the death penalty and expressly identify our history of lynching as a basis for its abolition. Confronting implicit bias in police departments should be seen as essential in twenty-first-century policing.

Source: The New York Review of Books, Bryan Stevenson, July 13, 2017 Issue

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13 Chinese sentenced to death for drugs offences as thousands look on in public trial

"13 people were sentenced to death for producing and selling drugs."
Eight executed immediately after open hearing in a stadium in notorious drug producing area of Guangdong province

Two courts in southern China’s Guangdong province sentenced 13 people to death for producing and selling drugs at a public trial in a stadium in the city of Shanwei watched by some 10,000 people, the official Xinhua news agency reported.

The Shanwei Intermediate People’s Court and the Lufeng People’s Court handed out sentences on Saturday for 18 people, the report said, without giving the names of the accused or details of the charges.

Five were given suspended sentences. Of the 13 sentenced to death, eight were executed immediately after the trial.

The city of Lufeng, which is administered by Shanwei, is notorious for making and trafficking drugs. 

In 2014 more than 3,000 paramilitary personnel, police and border guards from Guangdong raided a village near Lufeng and seized three tonnes of crystal meth. 

Nearly 200 people from the village, which has a population of 14,000, were detained at the time.

The Lufeng court heard 234 cases involving drugs last year and sentenced 107 people to prison terms of at least five years.

A similar public trial was held in 2015 in Lufeng, with five people sentenced to death and executed immediately and another eight given suspended death penalties. 

A further 25 people were sentenced to at least 10 years in jail each.

Source: South China Morning Post, Zhuang Pinghui, June 27, 2017

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The Death Penalty and Mental Illness: An Evolving Standard?

The use of the death penalty in the Americas dates to the 15th century when European settlers brought with them the practice of capital punishment. Because nowhere in the US Constitution is capital punishment explicitly addressed, the death penalty was imbued with intrinsic constitutionality by the Founding Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due process clause) of the Bill of Rights have attempted to provide guidelines on how capital punishment should be handled. The Fifth Amendment states that "no person shall be held to answer for a capital [crime], unless on a presentment or indictment of a Grand Jury," while the Eighth Amendment states that "nor cruel and unusual punishments [be] inflicted."

Although the death penalty was viewed as an acceptable form of punishment at the time the US Constitution was created, it did not take long for various states to begin to limit or even ban such practices. The 1st state to do so was Michigan in 1846. 

Today, 31 states still permit capital punishment. Although this number may represent a majority of the states, it may not represent the true national mood regarding capital punishment because many of these states have not had an execution in more than 10 years.

Evolving standards

Over the years, the US Supreme Court has ruled on many cases that have addressed the topic of evolving standards of decency in regards to the Eighth Amendment. The 1910 Supreme Court case Weems v US helped define the notion of evolving standards as a basis to view historically accepted punishments as no longer acceptable in modern society. In the Weems case, a man was sentenced to multiple years of "hard and painful labor [in chains]" for the crime of falsifying documents.

Although the use of "irons" was common in the 1700s, the Court found that its use was not appropriate for a sentence in the 1900s. The term "evolving standards of decency" was coined by Chief Justice Earl Warren in Trop v Dulles (1958) when he noted that, when determining what punishment the Eighth Amendment prohibits, "evolving standards of decency . . . mark the progress of a maturing society."

The 1972 case of Furman v Georgia (1972) resulted in a brief national moratorium on the death penalty because of a 5 to 4 ruling that "[the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." In an unusual scenario, each justice wrote his own opinion, with Justices Brennan and Marshall citing evolving standards of decency to explain why they believed the death penalty was unconstitutional.

The landmark cases of Atkins v Virginia (2002) and Roper v Simmons (2005) determined that because of evolving standards of decency, certain definable groups such as individuals with intellectual disability and minors could not be sentenced to death. In both instances, the Court, within a relatively short period, revisited the issue of an evolving standard after already having ruled on the issue, ie, execution of people with intellectual deficiencies previously addressed in Penry v Lynaugh (1989) and certain youths in Stanford v Kentucky (1989). The majority opinion for Atkins v Virginia, written by Justice Stevens, noted that the "consistency of the direction of change," but "not so much the number of these States [prohibiting the execution of individuals with intellectual disabilities]," was important in determining an evolving standard.

The cases of Atkins v Virginia and Roper v Simmons are particularly interesting because the opinions were based on legal as well as scientific and medical principles. The legal principles that were discussed included whether the death penalty had a deterrent effect for these populations and whether these populations were at a fundamental disadvantage in defending themselves in the court system against the ultimate irreversible punishment. In Atkins v Virginia, Justice Stevens wrote, ". . . frequently [individuals with intellectual disability] know the difference between right and wrong and are competent to stand trial . . . [but] because of their impairments . . . by definition they 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."

Source: Psychiatric Times, June 22, 2017

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The Supreme Court's Mixed Year on Capital Punishment

The U.S. Supreme Court's latest term, which ended this week as the justices began their summer recess, saw death-penalty opponents achieve some notable victories even as the Court moved further away from abolishing capital punishment.

In one of those wins Monday, the justices vacated an Alabama death-row inmate's sentence after ruling the state had not given him adequate professional assistance to evaluate his mental health during his trial more than 3 decades ago. The Court said the state's failure to provide James McWilliams with the experts required under one of its 1985 rulings made his sentence unconstitutional.

"Since Alabama's provision of mental-health assistance fell so dramatically short of what Ake [v. Oklahoma] requires," Justice Stephen Breyer wrote for the majority, "we must conclude that the Alabama court decision affirming McWilliams's conviction and sentence was 'contrary to, or involved an unreasonable application of, clearly established Federal law.'" He quoted from a federal statute governing certain appeals from state courts.

In Ake, the Court ruled that states must provide impoverished defendants with access to "sufficiently independent" mental-health experts for help during trials. Shortly after that ruling came down, McWilliams was charged with the rape and murder of a convenience-store clerk. The trial court appointed John Goff, a neuropsychologist who worked for the state's Department of Mental Health, to evaluate McWilliams as a neutral party. After he filed his report, the court denied the defense's request for an independent expert to help them understand the report and its implications.

The ruling fell along the traditional ideological divide, with Justice Anthony Kennedy joining the Court's liberal wing. Justice Samuel Alito, writing for himself and 3 conservative colleagues, sharply criticized the majority for disregarding the question the justices had been asked to resolve when they took the case. Instead of deciding whether Ake required a mental-health expert for the defense, and not simply a neutral one for both sides, the majority held that Alabama's assistance to McWilliams fell short of the Court's current standards for indigent defendants with signs of mental-health issues.

"Neither Dr. Goff nor any other expert helped the defense evaluate Goff's report or McWilliams' extensive medical records and translate these data into a legal strategy," Breyer wrote. "Neither Dr. Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself."

Monday's ruling was the 3rd of 4 capital-punishment cases the Court heard this term. Their ruling on one final case could come as soon as Thursday morning. In February, the justices vacated the death sentence of Texas inmate Duane Buck in a long-running racial-bias case. At the center of the dispute was testimony from psychologist Walter Quijano, who was called to the stand by Buck's lawyer during the sentencing phase of his trial in 1995. Quijano told the jury about his statistical model for evaluating "future dangerousness," one of the thresholds Texas uses to determine whether a defendant receives life imprisonment without parole or a death sentence. One of the factors in Quijano's model was race.

"It's a sad commentary that minorities, Hispanics, and black people, are over-represented in the criminal-justice system," Quijano told jurors at one point. When Buck appealed his sentence, Texas countered that the statements were only a minor part of days of testimony. But Chief Justice John Roberts, writing for the Court in a 6-2 majority, said it was enough to toss out the sentence. "Some toxins are deadly in small doses," he wrote.

"What does this case tell us about a capital-punishment system that, in my view, works in random, virtually arbitrary ways?"

Kennedy and the Court's liberal justices also sided with the inmate in Moore v. Texas, an intellectual-disability case, in March. A Texas jury gave Bobby Moore a death sentence in 1980 for killing a convenience-store clerk during an armed robbery. After the Court banned the execution of people with intellectual disabilities in 2002's Atkins v. Virginia, Moore appealed his sentence on those grounds. A state court gathered a wealth of evidence from doctors and psychologists, concluding Moore should receive life imprisonment without parole and be retried.

But the Texas Court of Criminal Appeals rejected the lower court's decision and instead relied upon an outdated set of seven factors from one of its earlier cases to make its decision. The factors were not grounded in medical authority. Instead, they focused on the subjective perceptions of laypersons and family members to determine a defendant's mental disability. All 8 justices agreed the factors were unacceptable for capital cases, but Roberts, Alito, and Clarence Thomas dissented from the means by which the majority reached its decision.

The Court has yet to hand down a ruling in its fourth death-penalty case, Davila v. Davis. At issue in that dispute is an arcane but important procedural question about when a death-row inmate can claim his or her lawyer was unconstitutionally ineffective during the appeals process. At oral arguments in April, the justices appeared to be leaning toward a ruling in favor of the Texas Department of Criminal Justice.

But this term the justices did not take up any cases on a question frequently pushed by one of their colleagues: whether the death penalty itself violates the Eighth Amendment's prohibition against cruel and unusual punishment. In 2015, Breyer dissented from a major case on botched lethal injections and said it was time for the Court to reconsider the constitutionality of capital punishment. His dissent, which was joined by Ruth Bader Ginsburg, reopened a battle over the death penalty that had once faded from the court.

Some observers - myself included - speculated at the time that Breyer's dissent signaled the justices could actually abolish the practice for a second and likely final time. (The Court struck down all death-penalty statutes nationwide in 1972, then approved a raft of revised state laws 4 years later.) Assuming all four justices on the Court's liberal wing would agree to strike down the death penalty, only the vote of Kennedy - an intermittent voice in reducing the punishment's scope - and the proper case would be needed.

After 2 years, the Court has yet to consider the question despite multiple petitions asking the justices to do so. Kennedy's opinions on capital punishment have not noticeably changed in tone or tenor since Breyer's dissent in the lethal-injection ruling. And Donald Trump's electoral victory in November increased the likelihood that Kennedy or 1 of the 4 liberals could be replaced by a conservative stalwart, which would likely foreclose abolition for a generation.

Breyer has still continued to urge his colleagues to take up the issue. When Arkansas attempted to execute 8 inmates in 10 days in April, he sharply criticized the state for putting them to death only because its lethal-injection drug supply was about to expire. "In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random," he wrote when his colleagues denied a request from 1 of the inmates for a stay of execution.

A few days later, when the Court rejected the petition of an Arizona prisoner who had spent almost 4 decades in solitary confinement awaiting execution, Breyer said it underscored the need for the Court to revisit the death penalty. "What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?" he asked. "What does this case tell us about a capital-punishment system that, in my view, works in random, virtually arbitrary ways?" None of his colleagues joined either of his writings.

Source: theatlantic.com, Matt Ford, June 22, 2017

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Koh Tao murders: “Should the co-defendants have received separate legal representation?”

Burmese migrant workers Wai Phyo (left) and Zaw Lin
Burmese migrant workers Wai Phyo (left) and Zaw Lin
On the morning of 15 September 2014 the battered bodies of two British backpackers, David Miller (24) and Hannah Witheridge (23) were found on Sairee Beach, Koh Tao, Thailand. Earlier that night they had been drinking at the AC Bar.

It is widely accepted that what followed was a bungled police investigation. Initially, police Lieutenant-General Panya Mamen said that CCTV footage implicated two local Thai men, Montriwat Toowichian (“Mon”) and Warut “Nomsod” Toowichian. Mon is the manager of the AC Bar and Nomsod is the son of Woraphan Toowichian who is the owner of the AC Bar and the powerful village headman of Koh Tao.

Panya had also insisted that there would be no scapegoating in this case. He was promptly promoted and transferred and the Thai men were cleared by Panya’s seniors. In particular, Nomsod’s lawyer provided a dubious alibi that Nomsod had been in Bangkok at the time of the murders and showed CCTV footage of what he claims was Nomsod at university. In addition, the CCTV footage to which Panya had referred was never shown to the public.

However, some amateur sleuths quickly pointed out that the “university footage” was not from the university but from a building next door and that the footage appeared photo-shopped. In addition, it was said that the placement of furniture in the footage was inconsistent with the placement on the relevant day.

Once Mon and Nomsod were “cleared” the Thai police faced the task of “solving” the crimes and were ordered to do so promptly by Thai Prime Minister General Prayuth Chan-o-cha. This can reasonably be interpreted as code for: “Find a foreign scapegoat quickly in order to safeguard our lucrative tourism industry.” I refer to “foreign scapegoats” as the Prime Minister and other senior figures had publicly issued some ludicrous statements to the effect that no Thai person would commit such crimes.

Police attention had been briefly directed to one of David’s friends from Jersey but he was also cleared.

The police did obtain CCTV footage of three very small Burmese workers who were in and around Sairee Beach on the evening of 14 September 2014, namely: Maung Maung, Zaw Lin and Wai Phyo.

The police then concocted a story which they announced to the media. According to the story, Hannah had been raped and murdered by two Burmese workers who also murdered David while a third Burmese worker watched on.

It then emerged that Maung Maung had left the other two on the beach early in the evening and had gone to his girlfriend’s place and therefore had a strong alibi.

The police now concocted yet another story. They claimed that Zaw Lin and Wai Phyo had seen the tourists walk past them and snuck up on David while he was forcing Hannah to have sex and struck him on the back of the head with a hoe in order to save Hannah but then decided to rape her themselves. (The police seemed to have a few variations of this story but the variations changed too)

Inconsistent Physical Evidence

That story not only seems utterly implausible, it is completely inconsistent with the physical evidence. It is also worth noting that, although we all make mistakes from time to time, people who constantly change their stories tend to be lying.

The inconsistent physical evidence was not dealt with by the police spokesmen in their various statements to the media and it also seems that it was not dealt with properly at trial.

David had suffered multiple wounds and injuries. He had cuts around his face, neck and collar bone consistent with those that would be made by a knife or punch-knife and not a hoe. Clearly, more than one weapon was used to inflict his injuries but the police stories made little mention of other weapons and certainly did not establish that the defendants ever had such weapons. However, there is a YouTube video clip from 16 October 2014 in which the following statement appears: ‘ “There’s a mark on his face which could be from other types of weapon, meanwhile, the marks on his hand are similar to the injuries that could be from fighting,” police general Champumporn Suramanee said at a news briefing.’ 

Various pictures of David’s near naked (not naked) body appeared on the internet shortly after the murders. In some pictures a sock can be seen on his left foot. The sock is half on and half off. It seems implausible that David would be having consensual sex with Hannah on the beach with one sock half off.

Although I disagree with almost everything that David’s brother, Michael Miller said to the media outside the Samui Provincial Court one cannot fault his comments to the effect that we would have liked “Dave” and that David stood up for justice.

The physical evidence suggests that David died as a hero protecting Hannah and himself from a group of determined thugs. It does not suggest that he died at the hands of two tiny Burmese men who snuck up on him.

Various pictures of Hannah’s body also appeared on the internet. Bright red blood can be seen on her face. In contrast, there are also some dark stains on her face and upper body that do not seem consistent with blood but possibly consistent with residue from fireworks or the equipment of one of the Thai beach fire dancers. I am unaware of any explanation the police provided for the dark stains or how the defendants were supposed to have left such stains.

I suggest that the killers staged David’s body by taking his clothes off after they killed him but that in the darkness they failed to see that the left sock was not completely removed.

Thai Police DNA Evidence Discredited

Police did extract confessions from the defendants, Zaw Lin and Wai Phyo allegedly under torture. However, once the confessions were retracted and the DNA evidence discredited there was nothing to link the defendant Zaw Lin to the crimes.

It is true that the defendant Wai Phyo said that he found a mobile phone on the beach on the morning of the murders when Zaw Lin was in bed. The police claim that the mobile phone Wai Phyo found belonged to David. There are some issues regarding the chain of custody and hearsay evidence in this regard but, for the sake of this article, I am willing to accept that Wai Phyo possibly had David’s mobile phone in his possession on the morning of the murders. If so, then this represents some circumstantial evidence that Wai Phyo MIGHT have committed - or aided the commission of - some criminal offence(s) AND/OR he might have witnessed the commission of some offence(s).

Should Co-Defendants Have Had Separate Lawyers?

In my view, Wai Phyo and Zaw Lin should have had separate lawyers.

Lawyers should strive to avoid situations where they have a conflict of interest or a potential conflict of interest. In some situations in the West it can be appropriate for co-accused or co-defendants to have the same lawyer(s) but this should only occur where the co-defendants have given their informed consent to such an arrangement after having the possible pitfalls properly explained to them.

According to Westerners who have met the defendants, neither of them are particularly bright and given that they grew up in relatively humble villages they appear very naĂŻve and would probably struggle to understand some fairly simple concepts. In the circumstances, they probably present as viable scapegoats but it also suggests that they might not be able to give informed consent to having lawyers act with a real or a potential conflict of interest.

Zaw Lin seems to be the defendant facing the greater risk by sharing defence lawyers. One reason is that it was Wai Phyo who was the first to “confess” under interrogation (or torture) and his “confession” implicated Zaw Lin. The police then allowed the co-defendants to talk to each other whereupon Zaw Lin concluded that rather than go through any further interrogation or torture he might as well “confess” in light of Wai Phyo’s “confession” that had already sealed both their fates.

The second reason is that, according to both defendants, they were not together on Sairee Beach for the whole morning. Zaw Lin says he went to sleep at Maung Maung’s hut and Wai Phyo says that he (Wai Phyo) returned to Sairee Beach to look for Maung Maung’s work shirt. Maung Maung had stated that when he returned to his hut he found Zaw Lin fast asleep, which would seem unusual if Zaw Lin had just been involved in a double murder.

If Wai Phyo was on Sairee Beach longer than Zaw Lin was, then it casts greater suspicion on him (rightly or wrongly) as he had greater opportunity to see more, hear more and/or do more.

The third reason is that Wai Phyo “obtained” a mobile phone on the morning of the murders. I use the non-specific term “obtained” as I do not know whether he actually found it, or was given it (by a killer or someone else), or stole it, or committed a robbery (stealing with violence).

In any event, it looks suspicious for Wai Phyo to have obtained a mobile phone that morning and it is a suspicion that can be cast upon Zaw Lin by association. It is also suspicious (even if understandable) that Wai Phyo did not hand the mobile phone into police. Therefore, it is in Zaw Lin’s best interests to distance himself from the mobile phone and the activities of Wai Phyo during the period they were not together.

David’s mother, Mrs Sue Miller was often criticised on social media for her comments about the convictions of Wai Phyo and Zaw Lin but I think that her comment that Wai Phyo “has some explaining to do” seems perfectly reasonable in relation to the mobile phone issue.

A further reason for saying that Zaw Lin is at greater risk is that some of the defendants’ statements seem plausible but not that likely. They said they hid the guitar, went swimming, lost their clothes, lost their guitar and then Wai Phyo says he went back to the beach later and found a mobile phone but did not see Hannah or David.

I was not there so I have no first-hand knowledge of what actually happened but I think that a reasonable judge could harbour some doubts that all the statements were completely accurate.

I have had experience with my own clients where they make a small, honest mistake in what they tell me or, they might not tell me the complete truth without appreciating how a small detail can later create major headaches for them and their lawyers.

In this case, we have already seen that Zaw Lin followed Wai Phyo in making an apparently false confession once he learned that Wai Phyo had made a “confession” implicating both of them.

I think many people would understand that a guitar should be much more valuable than Maung Maung’s T-shirt with the letters words “AC TWO” (for AC TWO Bar) yet Wai Phyo said he returned to the beach to look for the T-shirt, not the guitar.

There is a possibility that not everything Wai Phyo said is completely true. Surprise, surprise! There are a multitude of possible explanations for how he lost a T-shirt and a guitar and obtained a mobile phone all on the one morning. I don’t believe Wai Phyo killed anyone but he might have run into some bad company that morning.

Earlier in the evening (according to the three Burmese men) Maung Maung and Wai Phyo exchanged shirts because of their different warmth. Maung Maung left Zaw Lin and Wai Phyo and rode Zaw Lin’s motorbike to his (Maung Maung’s) girlfriend’s place.

It is easy to imagine that Zaw Lin got tired after a while and just left Wai Phyo on the beach with the guitar. Like the whole Thai defence team and Andy Hall I was not on Sairee Beach at the material time so I have no direct knowledge of what transpired but we should all be alive to the distinct possibility that Wai Phyo’s explanations for the loss of his shirt and guitar and the finding of a mobile phone might not be 100% accurate.

Wai Phyo is under 5’ in height. If approached by a group of Thai thugs (whether clean or covered in blood) who demanded his guitar and T-shirt in return for a mobile phone then Wai Phyo would have few options. If the thugs told him that they would kill him if he told anyone who they were then Wai Phyo would have to take them seriously.

Wai Phyo might then have difficulty explaining how he lost a guitar and T-shirt. It is easy to say that a mobile phone was found on the beach but he might have required Zaw Lin to tell a little “white lie” by agreeing to say that they both went for a swim to then discover that their clothes and the guitar had been stolen.

Zaw Lin would probably not appreciate the difficulties he might make for himself by agreeing to help his friend. In contrast, if Zaw Lin had a lawyer who was acting solely for him then he would be advised to tell the truth whatever that might be ie: “I got tired so I left Wai Phyo on the beach with the guitar and I do not know about anything that happened on the beach after that.”

If Wai Phyo (and Zaw Lin) proceeded to tell some little “white lies” in Court (because it would be unsafe to identify the true killers) and if their explanations and demeanour were not compelling it would be easy for observers (such as the Miller family) to form the view that they were lying in relation to the “white lies.” It could also seem reasonable for the Miller family (and perhaps the Court) to form the view that if the defendants lied about a mobile phone, the shirt and the guitar then maybe they are lying about the murders too.

In contrast, if the Court found that Zaw Lin had, in fact, just left Wai Phyo on the beach with the guitar and T-shirt then it would become somewhat difficult for the Thai police to convince the Court and the world that Wai Phyo acting alone could have committed the crimes that morning.

Significance Of The Identity Of “Running Man”

The Thai police did release some CCTV footage of an individual dubbed “Running Man” who was in the general vicinity of the location of bodies. The police asserted that this was Wai Phyo. People on social media have claimed it looks like either Nomsod or Mon.

The images are very low resolution. My untrained eye tells me that the hair looks like Wai Phyo’s but the gait is consistent with Nomsod.

In my opinion, the Thai police and local mafia are only releasing those images that support their case and I would not be at all surprised if they have supressed or destroyed CCTV footage that would implicate any Thais.

Based on that opinion, I would not be surprised if it transpired that Running Man is Wai Phyo. In my opinion if Running Man was Nomsod the images would probably have been destroyed. However, I also think that the absence of footage showing Zaw Lin near the location of the bodies at the material time indicates that he had no direct knowledge of the murders.

This is a submission that a lawyer dedicated solely to Zaw Lin’s defence could have made. However, a lawyer acting for both defendants would find himself with a conflict of interest, which as previously mentioned, is a situation lawyers in the West strive to avoid.

Defendants’ Unusual Behaviour in Prison

There are several Westerners who were fellow prisoners in the Samui Prison with Wai Phyo and Zaw Lin and who were released as part of a large amnesty granted by the new King, Rama X. They report that, unlike other prisoners who would discuss their respective cases, the defendants did not discuss the events of 14/15 September 2014 with fellow prisoners. One obvious explanation is that they might have followed the advice of their lawyers to keep silent and another explanation is that the Thai police and/or some Thai thugs might have intimidated them. It should be noted that there would have been a brief period after being charged when the defendants had no lawyers.

More importantly, since his conviction and transfer to Bangkwang Central Prison, Zaw Lin has told several supporters that he and Wai Phyo have never discussed the mobile phone that Wai Phyo said he found.

These snippets of information are not conclusive of anything but it is open to draw the inference that the defendants have been prevailed upon to remain silent.

Is It Possible The Convictions Might Be Quashed Or A Retrial Ordered?

Unfortunately, I do not know enough about the Thai legal system to offer much insight.

If the Supreme Court agrees that the police DNA evidence should not have been accepted then the initial judgment should be set aside but I do not know what would be likely to happen after that.

The Thai defence team might have had their reasons for not calling the DNA expert, Jane Taupin to give evidence (ie keep the case as simple as possible and concentrate on the absence of the defendants’ DNA on the hoe) but, with respect, on reflection they might now feel that their decision backfired.

The Thai defence team also elected to refrain from cross-examining prosecution witnesses who presented the police DNA evidence. This is consistent with Thai culture of avoiding conflict however, with respect, the team might now consider that the avoidance of conflict in this situation was conducted at the defendants’ peril.

Given that Zaw Lin did not have independent counsel there might be further reason to respectfully suggest that he, at least, did not receive a fair trial without a more robust defence dedicated to his interests.

Source: Ian Yarwood, June 2017. Mr. Yarwood is a barrister and a solicitor in Perth, Australia. He can be contacted at: @IanYarwood_Law.

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Alabama Enacts New Law to Speed Death Penalty Appeals

The Alabama Senate gave final passage on May 18th to the "Fair Justice Act" (Senate bill 187), a measure designed to speed up state appeals in death penalty cases, and on May 26th, Gov. Kay Ivey signed it into law.

That was also the day that Alabama carried out its long-delayed execution of Tommy Arthur, a 75-year-old inmate who had been convicted of a murder committed in 1982. Over the last 16 years, his execution had been scheduled on seven different dates, but each time was postponed by a series of legal appeals. The widely-publicized case highlighted how inmates in the state sometimes can remain on death row for decades.

The new bill, which will cover sentencing from July 1, sets new deadlines for filing appeals under state law, as well as how long state courts can take in deciding on those appeals. It would, for capital cases, amend Alabama's Rule 32 on post-conviction appeals based on trial defects, such as jury misconduct or ineffective assistance of counsel, by requiring that such appeals be brought at the same time as any other appeals the defendant may make.

Without this change, inmates facing death sentences can wait up to a full year after a direct appeal of their conviction before filing a Rule 32 appeal and beginning what can be a lengthy appeals process. The new law affects only appeals based on state law, so does not have any effect on appeals based on federal legal or constitutional claims.

State Attorney General Steve Marshall, a supporter of the bill, said it will allow death penalty appeals to "proceed in a fair and efficient manner," providing justice to all parties and avoiding prolonging the suffering of victims' families. He estimates the new state law could bring an average 5 to 6-year reduction in the time it takes the state to carry out death sentences, which would save the state more than $100,000 in total incarceration costs per condemned inmate. As of mid-June, Alabama had 182 inmates with death penalty convictions.

Marshall also claims that even with the sped-up timeline for appeals, the new law will not reduce inmates' opportunities for appeal, and will bring them better legal representation by requiring that they be appointed counsel for Rule 32 post-conviction appeals within 30 days of receiving a death sentence.

But opponents of the measure, including the American Bar Association, disagree. ABA president Linda A. Klein wrote legislators saying the bill would be "unlikely to achieve its intended goal of streamlining justice," since it might "unduly limit counsel's ability" to investigate potential issues for post-conviction appeals. Although the group takes no position on the death penalty itself, the ABA said the Alabama law runs counter to guidelines it has adopted for how appeals for such cases, including post-conviction appeals, should be handled.

Streamlining appeals procedures is not the only capital case topic on which Alabama has legislated recently. In April, Gov. Ivey signed into law a bill passed by wide margins in the legislature to end the state's unique law allowing judges to impose the death penalty even when a jury has recommended life imprisonment instead.

Source: Huffington Post, Christopher Zoukis, June 26, 2017. Mr. Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016)

Alabama Supreme Court Rejects Death Penalty Appeal

Alabama Supreme Court turns down death penalty appeal of man convicted of killing his girlfriend's toddler son.

The Alabama Supreme Court won't reconsider the sentence of a death row inmate who argued a judge had too much power in handing down the death penalty.

Justices on Friday turned down the appeal from Ronnie Lynn Kirksey, who was sentenced to death in 2010 after being convicted of killing his girlfriend's 23-month-old son.

The U.S. Supreme Court in 2016 ordered a review of Kirksey's sentence after that court struck down Florida's similar death penalty sentencing statute.

Kirksey argued his sentence was also unconstitutional because the jury, which suggested a death sentence, was told its decision was merely a recommendation.

The Court of Criminal Appeals upheld his sentence. Judges said there are key differences that make Alabama's statute constitutional. The state Supreme Court rejected his latest appeal with 1 dissent.

Source: Associated Press, June 26, 2017

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