Archive for the ‘Death Penalty’ Category


WHAT HAPPENED: Appellant is an indigent defendant who was convicted of first degree murder.  Appellant sought medical expert to assist with his sentencing and was provided with an expert by the State.  Following some kind of calamity involving timing and delivering the report, Appellant was sentenced to death (by electrocution because this was in 1984).

WHY IS THIS BEFORE THE SUPREME COURT:  In the 1970s, the Supreme Court (by way of Thurgood Marshall) held that indigent defendants were entitled to medical experts to assist with the insanity defense.  The Court held that the cost to the State was nominal compared to the benefit it would provide in ensuring that justice was served.  This case takes that holding one step further, and asks that not only does the State have to provide a medical expert, but also has to provide someone who is completely independent from the State as to reduce bias.

WHAT ARE THE RAMIFICATIONS – This is either (1) a dollars and cents issue, or (2) another way that the Court could create more ways that people on death row can overturn their sentences.  One on hand, hiring an independent expert would cost more, but once again you would have to wonder how much it would really be in light of the purpose behind providing the expert.  If you also believe that experts are mostly just mercenaries who say whatever they are paid to say, the benefit here is pretty high.  On the other hand, a ruling in favor of the Defendant is a pretty far stretch from the original Court’s holding, and finding that an independent expert has been required since 1984 would open the door for past death row inmates to contest their sentences, which would in turn bring more old death row cases before the Court, which would in turn make Clarence Thomas freak out.

ROOT FOR MCWILLIAMS IF: you want to see Clarence Thomas freak out.

ROOT FOR DUNN IF: you think poor Clarence Thomas has been through enough.



WHAT HAPPENED:  Defendant (Buck) was in the sentencing phase of his trial and his attorney presented an expert told the jury that Defendant was more prone to violence because of his race.  Defendant argues that this mistake prejudiced his death penalty sentencing and he should receive a new sentencing based on an Ineffective Assistance of Counsel claim.  The State’s objections to Defendant’s claim are somewhat strange, since this expert had been used by the State in the past, and the State voluntarily commuted the death penalty sentences for those defendants.  The State did not commute this death penalty sentence because Defendant put on the expert and not the State.

WHY IS THIS BEFORE THE SUPREME COURT:  Ineffective Assistance of Counsel is a claim rooted in the 5th and 6th Amendments which grants a Defendant a new trial when it is proven that the attorney who represented the defendant did an objectively bad job, and that the attorney’s job affected the outcome.  In this case, I think we can all agree presenting an expert who has a history of making racist claims, and then having that expert shares those claims with the jury  is not something you learn in law school.  The issue here is whether or not this expert sufficiently affected the sentencing phase, or if the evidence presented by the State satisfied the burden of proving the death penalty regardless of that witness’ testimony.

WHAT ARE THE RAMIFICATIONS –  Every year there are cases before the Supreme Court that can have long-lasting effects on future cases, but more often than not the Court is faced with weird fact patterns that exist only within themselves.  It is hard to see how this case will have any long lasting effect on IAC claims, since it is unlikely that this kind of expert is still being used, or if there is anything comparable to this kind of conduct.  At oral argument, the Court used some fairly strong language condemning the expert and the attorney, so on those grounds alone, it looks like the implications of upholding the sentence are weighing heavier than the implications of removing the death penalty.

ROOT FOR BUCK IF:  even the hint of racism is repugnant to your sense of justice.

ROOT FOR DAVIS IF:  an efficient system takes precedence over a corrupt one.

PREDICTION:  Buck 8-0.


For every case in the podcast and the Fantasy League, we will provide a summary with important issues and what to worry about.

WHAT HAPPENED: In 2002, the Supreme Court held that States could not sentence a defendant to the death penalty if it was proven that defendant possessed intellectual disabilities.  The Court did not set a standard for what qualifies as intellectual disabilities and left that decision to individual States.
WHY IS THIS BEFORE THE SUPREME COURT: Texas uses a standard that is not just out-of-date, but it’s so out-of-date that the agency that created the standard has since disavowed it for being out-of-date.  The Defendant in this case qualifies did not qualify under this standard, but presumably could qualify for a standard that is more in tune with modern practices.
WHAT ARE THE RAMIFICATIONS: There are three possible outcomes, with a modicum of fear-mongering sprinkled in.
(1) The Court does nothing and allows States to make whatever standards they want under this Rule.  Without a floor, States could make the standard much higher and execute whomever they please.
(2)  The Court refuses to set a national standard, but holds that picking a standard that is so antiquated that the people who made it publicly denounce their findings is not permitted.  With no definitive standard, Texas picks a new standard that hasn’t been disavowed by its creator and we do this throughout infinity.
(3)  The Court not only strikes the Texas standard, but also sets a requirement that all States must meet, thus substituting its judgment (which could be no more than five justices), for that of all fifty States.  States with a lower standard are now required to redo their standards via legislative action, which at very least presses pause on the death penalty in more than a few jurisdictions.
ROOT FOR option 1 (Texas) if a proponent of executing people with a mental handicap.
ROOT FOR option 2 (Moore) if you are a proponent of stopping the execution of this particular defendant, but probably no one else.
ROOT FOR option 3 (Moore) if you are a proponent of no executions for people with a mental handicap, and/or the death penalty in general.

PREDICTION:  Option 2 by a vote of 5-3

More Death by a Thousand Cuts

Posted: September 16, 2016 by Nazim in Death Penalty


We’ve been talking about how, gradually, we’ve moving away from the death penalty, instead of simply abolishing it. A Republican former attorney general for Ohio states plainly why that punishment is no longer worth it. An excerpt:

It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor.

Where the Death Penalty Still Lives

Posted: August 31, 2016 by Nazim in Death Penalty

Last week, the Fair Punishment Project published a report on Death Sentences in the US. In it, they note that:

Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015. […] The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments.  The report notes that many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability.

More detail at the New York Times.


The Delaware Supreme Court held that, in light of the Federal Supreme Court’s holding in Hurst v. Florida, Delaware’s death penalty is in violation of the Federal Constitution because it is imposed by a judge, and not by a jury, as Hurst requires. The last execution in Delaware was in 2012, by lethal injection, another contentious death penalty issue, but the 14 guys currently on the Delaware death row are probably breathing a sigh of relief, at least until the state legislature changes the procedure, a thing that may or may not happen.

It’s also interesting that the DE Court recognizes the difficulty of the task:

In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute. Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.

Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be. But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst. We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.

Full opinion of Rauf v. Delaware in this link (pdf warning).

Gavel bones 2

The Fifth Amendment expressly mentions the possibility of the government putting someone “in jeopardy of life” and being “deprived of life,” clear references to the possibility that the death penalty is a possible sentence. But there is a growing movement that believes that the death penalty is unconstitutional “in and of itself.” Among the multitude espousing this position is Justice Breyer, who announced his position in his dissent in Glossip v. Gross, in which Justice Ginsburg joined. The question of whether the Constitution can prohibit something it contemplates is examined by Joseph Blocher in the Northwestern University Law Review. Hat tip to the Sentencing Law and Policy Blog.


Are We Simply a Violent Nation?

Posted: July 9, 2016 by Nazim in Death Penalty, Enforcement, Guns

In the US, we don’t just put a gigantically greater proportion of our population in prison, we don’t just sentence folks to death at a ridiculously higher rate, our forces of law and order also kill suspects at almost 200 times the speed than in any other first-world nation. Some blame how easy guns are to obtain, some the racism intrinsic to the justice system, some the impenetrable solidarity among police officers, some the delegation of enforcement to community-level agencies with whatever training they can afford and are willing to take on. The truth, as always must be somewhere among all of these, and to absolutely deny any of them is to assert that we are, in that measure, simply a violent people that loves to kill each other, kindred to Itchy and Scratchy.


WHAT HAPPENED:  Defendant was convicted of murder and sentenced to death in Pennsylvania.  Somewhere along the line, a Motion for Post-Conviction Relief was granted in favor of Defendant, staying his death sentence.  That finding was appealed to the Pennsylvania Supreme Court, where it was reversed, thus reinstating the death penalty.

WHY IS THIS BEFORE THE SUPREME COURT:  As luck would have it, one of the Judges who reversed Defendant’s successful appeal used to work for the District Attorney in PA before being appointed to the bench.  While in his previous position, he was at least part of the decision to charge Defendant with death.  This potential conflict of interest is the crux of this case, where the Court has to determine whether or not this judge was biased enough to force recusal for Defendant’s appeal.

WHAT IS THE RULING:  This case is not  yet decided.

WHAT ARE THE RAMIFICATIONS:  There are potentially two different questions here that need to be asked.  (1)  Whether this particular judge should have recused himself on the appeal, and (2)  what are the rules going forward for judges in this position, because this judge is not the first or last person from the District Attorney’s Office to get appointed to an appellate court and hear a death penalty appeal.  Putting the specifics of Defendant’s case aside, this case could pass rules concerning under which circumstances judges should be recused based on previous work, which could affect death penalty appeals most specifically since they are both common and highly scrutinized.

ROOT FOR WILLIAMS IF: You are on-board with the “death by 1,000” cuts approach to dismantling the death penalty.

ROOT FOR PA IF: You watch Judge Dredd and think “maybe Stallone is on to something here…..”

Please note at this onset that this is just an educated guess as to what occurred in the Duncan v. Owens case, and it does not come from someone with inside information.  Also, independent of how you feel about his decisions, Rest in Peace, big guy.

Duncan v. Owens was granted review this term to determine whether or not the 7th Circuit had the authority to grant a habeas corpus petition on the grounds that the Judge did not agree with the judge’s inferences on motive that affected sentencing.  This case went to oral argument, but did not result in a full opinion.  Instead, the Court issued an order which dismissed the claim on the grounds that it was “improvidently granted”, thus affirming the lower decision without giving a full opinion.

The first step to take in understanding this decision, without further guidance from the Court, is to understand what it means for a case to be improvidently granted.  For a case to be presented before the Supreme Court, the Court has to grant a writ of certiorari, which allows them to review the lower decision.  To gain this writ of cert., four out of the nine justices must want to hear the case.  Once the writ is granted, the case becomes part of the docket.

A writ of cert does not, however, guarantee review.  The Court has a fairly limited view of the case when it is granted cert, so the Court’s opinion on the viability of the case can change as briefs and oral argument is held.  After hearing more on the issues, the Court may dismiss a case on the grounds that the arguments are not as clear as originally expected, or that the case was misrepresented in the original writ and become more clear after more information.  In those cases, the Court can dismiss the case as being improvidently granted.  Therefore, this is not a case where there was an error, but just that vetting the case out has rendered it less suitable for Constitutional review.

In Duncan v. Owens. the Court was presented with an issue of whether or not the 7th Circuit had acted inappropriately by granting habeas corpus on the grounds that the original decision was unjust and unconstitutional.  At the onset, the primary argument was that the 7th Circuit had actively violated precedent by granting this parties relief; however, the case focused on a more specific issue concerning the original order.  There was discussion during oral argument about the the specifics of the trial judge’s decision, in other words, was the lowest court’s decision clear enough to create a basis for the remaining argument.  Although the Court seemed in favor of the State in a general sense, the inability of either attorney to provide a clear statement on this issue likely caused the dismissal on procedural grounds.  Once again, this is not based on verified information, but just an assumption that the attorneys’ inability to answer this question caused the Court to dismiss the action without a full decision.