Time to end death penalty prosecutions of the mentally ill

August 9, 2015

In light of the life-without-parole sentences imposed on Theodore Kaczynski (the Unabomber), Jared Loughner (who shot and killed Congresswoman Gabriele Giffords and a federal judge) and James Eagan Holmes (who shot and killed 12 people at a movie theater in Aurora, Colorado), that “mark the progress of a maturing society,” I believe our society’s “evolving standards of decency” have reached a point where Congress and our state legislatures should pass legislation that prohibits executing the mentally ill for murders they committed. At long last, have we not reached the point where reasonable and thoughtful people can conclude that executing the mentally ill violates the Eighth Amendment prohibition against cruel and unusual punishment?

In Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Chief Justice Earl Warren wrote,

This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

(Emphasis added)

Each of these men committed atrocious and heinous multiple murders. Each of them was schizophrenic and delusional when they committed the murders. When a person kills another human being while gripped by delusions caused by a severe mental illness such as schizophrenia, it makes no sense to hold that person accountable for what he did by executing him. Indeed, such an execution serves only a desire for vengeance, which is not a legitimate societal interest. Moreover, since they have lost the capacity to reason through no fault of their own, it certainly does not deter other mentally ill people from killing.

I previously warned that the James Holmes death penalty trial is a colossal waste of time and money. Let us join together and vow to never again make this mistake.


SCOTUS rules against Oklahoma inmates challenging executions with midazolam

June 29, 2015

The SCOTUS held today by a vote of 5-4 in Glossip v. Gross, that three Oklahoma inmates awaiting execution failed to establish a likelihood of success on the merits of their claim that the use of midazolam as the first drug administered in a three-drug execution cocktail violates the Eighth Amendment prohibition against cruel and unusual punishmen because it “fails to render a person insensate to pain.”

Midazolam is a Schedule IV controlled substance, a benzodiazepine in the same class as diazepam, lorazepam, alprazolam and clonazepam. It has been approved for use in treating epileptic seizures, anxiety disorders and agitation. It is normally administered to patients to relax them before undergoing surgery or a medical procedure. It has never been approved by the manufacturer and the FDA for use in rendering people unconscious before administering a paralytic agent to inhibit all muscular-skeletal movements and potassium chloride to induce cardiac arrest.

Oklahoma and other states started using midazolam after the manufacturer of sodium thiopental, the barbiturate used to induce a state of unconsciousness before administering the other two drugs, objected to it being used to execute people and refused to sell it to any vendor who would sell or transfer it to states to use in executions.

The inmates based their argument on several botched executions where inmates appeared to be experiencing considerable distress before dying. They contended that midazolam failed to render those inmates unconscious while inducing a feeling described by one victim as burning up inside.

After a three-day evidentiary hearing, a United States District Court judge held that the inmates failed to identify an available alternative method that presented a substantially less severe risk of pain. The judge also held that the inmates failed to establish a likelihood that the use of midazolam created a risk of severe pain. The Tenth Circuit affirmed the decision.

Writing for the majority, Justice Alito affirmed the district court decision holding that the inmates failed to establish a likelihood of success on their Eighth Amendment claim.

Justice Sotomayor dissented, joined by Justice Breyer and Justice Kagan. Condemning the execution with midazolam as the equivalent of burning someone to death on a stake, she said,

The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is fac­tually wrong. The Court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible.

/snip/

“By protecting even those convicted of heinous crimes,the Eighth Amendment reaffirms the duty of the govern­ment to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the con­demned inmate to identify an available means for his orher own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price.

I dissent.

Justice Breyer also wrote his own dissenting opinion, joined by Justice Ginsburg. He wrote,

I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution….Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

Breyer and Ginsburg with Sotomayor and Kagan close behind appear ready to stop tinkering with the machinery of death and decide that the death penalty violates the Eighth amendment, regardless of the underlying facts.

Read the slip opinion here: PDF


We are killing the souls of our children

June 17, 2014

Tuesday, June 17, 2014

Good afternoon:

As a result of my experiences as a public defender representing kids charged with crimes in juvenile court during the late 70s, I believe that incarcerating nonviolent juvenile offenders in juvenile prisons is unnecessary and stupid. Incarcerating them in adult prisons is all of that and barbaric. Yet, that is what we do.

A recent study by the Michigan Council on Crime and Delinquency confirms my belief.

Lenconnect.com reports:

Among the facts in Monday’s report:

■ Prior to entering prison, 78 percent had a friend who was killed; 48 percent had a family member that was killed.

■ 81 percent had a parent with substance abuse issues.

■ 44 percent spent time in foster care and were placed out of home an average of 11 times.

■ 45 percent had a father in prison; 25 percent had a mother in prison; 19 percent had a sibling in prison.

Piling trauma upon trauma is not an effective strategy to rehabilitate troubled youth, and incarceration almost always does more harm than good. Set aside the psychological scars, the implications for the individuals and their home communities are long-lasting.

The Eighth Amendment prohibits cruel and unusual punishment. Whether any particular form of punishment violates that standard will depend on how evolving societal attitudes about punishment change over time.

I believe we need to change what we are doing to our children because we are killing their souls.

Beginning during the Reagan Administration and its lock-them-up-and-throw-away-the-keys mentality to today’s emphasis on ushering kids from school into privatized prisons where they are exploited as revenue-generating widgets to line the pockets of the rich investors who own the corporations that operate the prisons at taxpayer expense, our society has eliminated any realistic possibility that any of these kids will ever have a decent chance to experience a happy and productive life outside of a prison.

That is an Eighth Amendment and human rights violation.

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