Thursday, October 21, 2010

The Death Penalty is Killing Itself

Text of Remarks

To the
Fellowship of Reconciliation
October 21, 2010
Louisville, KY


The Death Penalty is Killing Itself

By

Donald Vish
Kentucky Coalition to Abolish the Death Penalty

The death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.

But we may be on the verge of a lot happening.

Death Penalty History: 1957-2008
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.

Today, there are 35 people on death row and four people have been executed in the last 53 years.

Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.

The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done in an even-handed manner.

How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?

What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?

Death Penalty History: 2009—present
The attorney general requested three death warrants from the governor in November 2009. Before the governor could act on the request, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for execution. The DOC complied and new and revised procedures were back on the books by May, 2010. The governor began the procedure for setting execution dates for the three men when he discovered the state had a limited supply of a key drug used in lethal injections, enough for only one dose, and even that supply expired in October 2010. So, the governor asked his justice secretary to formulate a selection process so that at least one of the three could be executed while the others waited for fresh supplies of the lethal drug needed to complete the injection cocktail. The Department of Corrections has said that a new supply cannot arrive before the first quarter of 2010.

Status of the Wilson Case and Executions Generally?
The death warrant authorizing Wilson’s execution expired at midnight September 16, 2010. According to representations made by the Department of Corrections to the Franklin Circuit Court, a key ingredient in the lethal injection mix will not be available until the first quarter of 2011. As a result, there is no current date for Wilson’s execution and the state lacks the chemical means to execute until the first quarter of 2011.

There are also legal issues pending about the Wilson case that may affect executions generally:

1) The Kentucky Supreme Court is reviewing a decision by the Kenton Circuit Court denying Wilson’s request for DNA testing and a determination of whether he is exempt from execution due to mental retardation. If the Supreme Court grants Wilson’s request, an evidentiary hearing will be scheduled in Kenton Circuit Court. It is highly improbable that the governor would seek to execute Wilson before a hearing was concluded and it is highly probable that he would be enjoined if he did. This ruling does not affect capital punishment generically.

2) The Kentucky Supreme Court is also reviewing a case from Franklin Circuit Court involving the new execution procedures written by the Kentucky Department of Corrections pursuant to a November 2009 order of the Kentucky Supreme Court.

This case has the potential to impact all executions in Kentucky.

Wilson intervened in the case and the trial judge enjoined the state from executing Wilson while the court was reviewing the legal adequacy of the new execution procedures. In the course of enjoining the Wilson execution, the trial judge expressed official interest in (i) the lack of procedures to test for mental retardation prior to execution and (ii) possible legal flaws in Wilson’s trial where he was given no choice but to represent himself most of the time. Judge Shepherd has established an expedited briefing schedule on these matters, which concludes on October 25th.

The Kentucky Supreme Court is currently reviewing legal briefs from the litigants concerning the Franklin Circuit Court case, after which it may rule that the case is moot since there is no current death warrant applicable to Wilson; or, it might affirm the judge’s ruling, the effect of which would be to require the Department of Corrections to supplement its execution procedures to provide for mental retardation testing; or, it might reverse the trial judge’s ruling in effect finding that the judge had no good reason to delay the Wilson execution. In the latter case, Wilson would be scheduled for execution if and when (1) the governor signs a new death warrant and (2) the state receives new supplies of the drugs needed for the lethal injection.

If the Supreme Court finds the case is moot or it agrees with Judge Shepherd, the case would nevertheless be returned to Franklin Circuit Court for such further hearings as the trial judge may require in order to render a final judgment on the legal adequacy of the new execution procedures.

Facts about the Death Penalty(As of October, 2010)

35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 34 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 35
Women on Death Row (Kentucky) 1
Georgraphy
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.


Conclusion
The death penalty is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law).

A recent example of Murphy’s Law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could find not a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!

Of the Wilson case, Judge Boyce Martin of the United States Court of Appeals for the 6th Circuit wrote earlier this month:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible
act. But at Gregory Wilson’s murder trial, the state’s ignominy began…*** virtually every branch of our justice system failed —from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial. The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial:***
…This scandal is an embarrassment to all segments of the judiciary, from the judge
who violated the Code of Judicial Conduct by having a sexual relationship with a
defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex. When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying.
Perhaps even more egregiously than the judiciary, Wilson’s defense counsel
failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade:****
…Over my more than thirty years on the bench, Wilson’s trial stands out as one of
the worst examples that I have seen of the unfairness and abysmal lawyering that
pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Moore v. Parker, 425 F.3d
No. 09-6306 Wilson v. Rees, et al. Page 7250, 270 (6th Cir. 2005) (Martin, J., dissenting). To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.
If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake. When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.

DV
October 21, 2010

Friday, September 10, 2010

KET: Death Penalty October 12, 2009

Death Penalty: A Constitutional Collision Course (Kentucky Law Review)

From Kentucky Law Review

Thursday, November 19, 2009
OP-ED: Atty Donld Vish's special to the CJ re death penalty

The death penalty has put the Constitution on a collision course with itself.
The path to collision was cut and cleared in 1976, when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion' template proposed by the Model Penal Code (MPC). The ‘guided discretion' approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.
Rhetoricians have a name for rubrics like “guided discretion”: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).

The precise place where justice fits between “guided” and “discretion” is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding, then reaching, the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.
As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society's search for justice, competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work.

The sponsor of the MPC, The American Law Institute, has now withdrawn the guided discretion template and its legal consultants, Professors Carol S. Steiker, Harvard Law School, and Jordan M. Steiker, University of Texas Law school, have declared the “guided discretion experiment” unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model. The template is merely a mirror for what is required by the Constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.

As courts grapple with the balance between the two, justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.
Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can't uphold it because the applicable legal standards collide with each other.

Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.

Posted on Thursday, November 19, 2009 at 10:44 PM in Apple, Criminal, Opinions and Editorials (Op-Ed) | Permalink
TrackBack

Drug Shortage Impacts Kentucky Executions




Ky. governor holding off on some executions due to shortage of key drug

WHAS TV News Report: August 26, 2010
by Claudia Coffey

WHAS11.com

Posted on August 26, 2010 at 6:34 PM

Related:
•Condemned Ky. inmate asks judge to halt execution

(WHAS11) - Kentucky Governor Steve Beshear has set a September 16 execution date for a rapist and murderer but held off on two others because of a shortage of a key drug used in the execution.

Beshear said he signed only one warrant because the state has enough sodium thiopental for just one execution.

Kentucky's stock expires October 1 and a new supply of the drug is not expected until early in 2011.
It's raising a number of ethical questions; the biggest is whether one dose for one execution even safe to use so close to the date it expires.

The person facing execution? Gregory Wilson. Wilson was sentenced to die October 31, 1988, for his part in the 1987 kidnapping and murder of Deborah Pooley a year earlier in Kenton County in Northern Kentucky.

53-year-old Gregory Wilson will face an execution chamber similar to this one on September 16.

The last person executed in Kentucky was Marco Chapman back in 2008.
Wilson is one of three death row inmates for which death penalty is being sought but the state doesn't have enough chemicals on hand to execute the other two.

"I can't make anything of any of this," says Donald Vish with the KY Coalition to Abolish the Death Penalty.

Donald Vish, the Director of Advocacy for the Kentucky Coalition to Abolish the Death Penalty, says his organization has asked the governor to stay the execution until the entire system can be reviewed especially now given a key chemical is set to expire just two weeks after the Wilson execution.

"I think it creates a substantial risk of a botched execution or a substantial risk of lingering pain if the efficacy of those drugs has been diminished in any way," says Donald Vish with the KY Coalition to Abolish the Death Penalty.

The Department of Corrections has a sufficient amount of a drug called sodium thiopental, that amount expire October 1. The drug is a sedative.

"In this setting they use three different drugs. This drug is used first to make the person unaware of the effects of the other drugs," says George Bosse of the KY Regional Poison Control Center.

George Bosse - the medical director of the Kentucky Regional Poison Control Center - says like all drugs this too has an expiration date and it’s likely to remain effective until that date.

It should last until the expiration date and what happens after that is somewhat controversial and there is some concern it could lose its effectiveness and there is concern that it could cause toxicity which is less likely but the bigger concern is it could be less effective," says Bosse.

end--

Death Penalty: Guest Editorial June 3, 2010

June 3, 2010
Guest Editorial: WAVE-TV
The Death Penalty


By Donald Vish
Kentucky Coalition to Abolish the Death Penalty

Aggravated murder cases in Kentucky show a disparity in treatment so inexplicable and so extreme that the legitimacy of the death penalty must be called into question.

In the last two years a serial killer, a child-killer rapist and a $1,000 hit man got life sentences while over the years some aggravated murderers got death. Why: A bad crime; a bad lawyer or bad luck?

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility.

The governor needs to get to the bottom of this dysfunction before signing any death warrants. Confidence in our justice system depends on getting an explanation for a disparity that is now inexplicable-and unacceptable.

Copyright 2010 WAVE News. All rights reserved.

Abolish the Death Penalty: WAVE TV Guest Editorial



Abolish the Death Penalty
(WAVE TV Guest Editorial
1-22-10)

By Donald Vish
KY Coalition to Abolish the Death Penalty

The rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity – three since 1977 and only four since 1956.

Three conclusions are warranted:

1.The death penalty no longer serves any legal purpose
2.It offends Kentuckians' evolving standard of decency
3.It's arbitrarily applied
A 2006 University of Kentucky poll showed that 67% of Kentuckians prefer a penal option other than death in capital murder cases. The Kentucky Supreme Court should reconsider the continuing legality of the death penalty in light of its marginal and erratic use. Through looking at jury sentencing patterns, the court should conclude the death penalty does not meet legal standards, and that juries believe that life in prison without parole adequately protects the public and punishes the worst of the worst.

That's my opinion.

Copyright 2010 WAVE-TV. All Rights Reserved.

Eliminate the Death Penalty

(Lexington Herald Leader
Sunday, September 5, 2010)

Eliminate the Death Penalty
by
Donald Vish

The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.

The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.

In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death.  Why?  A bad crime or a bad lawyer or bad luck?    

The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.

Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.

The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.

The death penalty is riddled with contradictions and contradictory imperatives.

Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of

* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.


There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.



Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty

Tuesday, May 25, 2010

Review Needed Before Death Warrants Signed

From The Frankfort State Journal May 25, 2010 by Donald Vish

Review Needed Before Death Warrants Signed

Similar punishments for similar crimes committed by similar people acting under similar circumstances are the foundation of the criminal justice system. On this foundation stand essential constitutional and public policy pillars of due process, equal protection and proportional punishment.

Recent aggravated murder cases show a disparity in death penalty cases so divergent, so inexplicable and so extreme that the death penalty is called into question as a matter of public policy.

In the last two years, for example, a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences rather than death. One prosecutor immediately changed a death penalty case to a life without parole case simply because the prosecuting attorney made a mistake requiring a new trial.

To determine the proper symmetry of aggravated murder cases and capital punishment it is necessary to look at a universe of cases in which
Similar crimes got the death penalty
Similar crimes did not get the death penalty
Similar crimes were not prosecuted as death penalty cases.

While this three-pronged method of review is not required under Kentucky statutory law mandating proportionality reviews of all death sentences or the United State Constitution as interpreted by the United States Supreme, the extraordinary disparity in outcome of potential death penalty cases is troubling enough to justify a broad inquiry by the governor before signing a death warrant.

The governor has vast clemency powers without constraints and virtually beyond review. The drafters of Kentucky's constitution made a plenary grant of executive power to enable the chief magistrate do justice on a plane beyond the minimum required by statute. Confidence in the justice system can only be achieved by finding a reasonable explanation for a disparity that is now inexplicable.

May 25, 2010
Donald Vish, Kentucky Coalition to Abolish the Death Penalty, Louisville

Saturday, May 22, 2010

Wolf Pen Branch Mill Farm (1820-25)



This 430 acre working farm in Jefferson County (Louisville) is a rare jewel. Owner Sallie Bingham has granted a conservation easement for the farm ensuring its preservation.

Tuesday, March 9, 2010

Spring

Keeneland Race Course (Racing the Way it Was Meant to Be)

Friday, February 26, 2010

Text of Remarks Kentucky Libertarian Party Annual Convention

The Death Penalty is Killing Itself



Text of Remarks

To the

Kentucky Libertarian Party
February 27, 2010
Lexington, KY


The Death Penalty is Killing Itself

By


Donald Vish
Kentucky Coalition to Abolish the Death Penalty

Thank you for entrusting your podium to me. We all know there’s no thief worse than a bad speech to a captive audience. A wise old stump speaker from that place I’ll just call ‘down-home’ once told me that the worst speakers make speeches that are always fixin’ to get ready to get started. I am not going to do that. I’m going to get to the point right away which is this: the death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: ruled by the laws of chance that most of the time make nothing happen.

But we may be on the verge of a lot happening. The attorney general has requested three death warrants from the governor. Before the governor could act on the request in November, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for executions and took public comments on the procedures. Those steps have been taken and the execution protocols are on their way to the governor’s desk for signature. On their way to the governor’s desk, the procedures must go through a legislative committee. The governor has said he will sign the protocols when they arrive. So execution procedures could be back on the books by April or May which means Kentucky could have multiple executions in 2010: at least three and this in a state that has executed only four people in the last 53 years.


Lethal Injection: Humane Executions

The Holy Grail of modern civilized executions is to have someone dead, not to make someone dead much less to actually kill anyone. The civilized execution seeks to perfect a process that has only a past tense, a protocol that takes the dying out of death and the killing out of killed. Civilized killing aspires to be a sentence without a verb. In a perfect execution, nothing happens, there is no beginning or middle and the end is always in the remote past. The coroner has to announce later that it happened earlier. The civilized execution is a perfect demonstration of the proverb: nothing produces nothing made all the more remarkable by having done it with nobody.

In the humane execution the actual executioner is merely unknown but in the perfect execution lethal injection strives to achieve, there is no executioner, a perfect illustration of the dictum: everybody’s business is nobody’s business.

The humane execution is choreographed to occlude its entanglement with brutality, barbarism, violence or a freakish and lingering death, to silence the voice of pain. So the body sleeps in muscular paralysis so one knows if it wakes up.

The execution is disguised to resemble a medical procedure. Trappings of humanitarianism, healing and kindness conceal the reality: there’s a noose in the needle.


Death Penalty History Condemns Itself

The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.

Today, there are 35 people on death row and four people have been executed in the last 53 years.

Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.

The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done though the heavens may fall.

How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?

What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?


The Death Penalty Doesn’t Work

The death penalty is a failure on every level: legal, social, political, penal, financial and moral.

First, there is no way to kill humanely.

Secondly, there is no way to kill in compliance with constitutional procedures.

Thirdly, there is no way to kill without the risk that innocent people will be executed.

Fourthly, administration of the death penalty has failed to deter heinous murders in Kentucky and to exact proportional retribution for and from the worst of the worst.

Finally, the people are not getting their money’s worth from an unnecessary system that serves no penological purpose.

In Kentucky, the death penalty makes nothing happen.

Nationally, it is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law). A recent example of Murphy’s law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could not find a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!

Law of Lightening

Imposition of the death penalty has been analogized to the capriciousness of lightening. The comparison is unfair. It is much easier to predict WHERE the death penalty will be used than to predict where lightening might strike. The death penalty has a measurable geographic vortex. The geography of the death penalty is so pronounced that it is an exercise of poetic license to say the United States endorses the death penalty. Actually, most places in the United States do not use the death penalty.

Since the death penalty was reinstated in 1977

• more than two-thirds of American counties have never imposed it and
• Only 3 percent (92 out of 3,066) of the nation’s counties have generated 50 percent of its death sentences.


Death Penalty Use is Limited and in Decline


The death penalty has become an embarrassment to our legal system. Its administration has undermined public confidence in the way the law works. The best thing its supporters can say about it is the best thing its opponents can say about it: it’s not used very much.

In fact, in some precincts, both social and geographic, it’s not used at all.
In 2009, eighty-seven percent of executions in the United States were in the south, and over half of those were in Texas. A single county in Texas has furnished more than 33 percent of the state’s death row population.

While 35 states have the death penalty, executions are clustered in just a few. There have been 1,188 executions since 1977 and 54 percent of those have come from three states: Texas, with 447 (37.6 percent),Virginia with 105 and Oklahoma with 91.

Even where the death penalty is used, its use is declining. There were fewer death sentences in 2009 than any year since executions resumed in 1977. Death sentences reached a high point in 1994, 328, and since then have declined 63 percent. 2009 is the seventh straight year the number of death sentences has declined.

Deterrence

Justification for the death penalty has been based on the penal goals of deterrence and retribution. But in 10 of the 12 states without capital punishment, the homicide rates are below the national average and FBI data shows that half of the states with the death penalty have murder rates above the national average. A New York Times analysis found that over the last 20 years, states with the death penalty have murder rates between 48 percent to 101 percent HIGHER than states without the death penalty (December 14, 2009 New York Times.)

Retribution

Gallup polls show that among those who support the death penalty, retribution is most often cited as the reason. A June 30, 2006 Gallup poll, citing a 2003 Gallup study stated:

The reason is very likely their concept of justice. According to a 2003 Gallup study, close to half of Americans who supported the death penalty cited some aspect of retribution for the crime as the reason. [An October 13, 2009 Gallup Poll updates public opinion on the death penalty reporting 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years. ]

The most recent 2009 Gallup poll on death penalty support does not update the 2003 findings about the reasons for support of capital punishment nor does it update the 2006 finding, quoted in the 2009 study:

An Explicit Alternative to the Death Penalty? Gallup research has found that support for the death penalty is lower if Americans are offered an explicit alternative -- "life imprisonment, with absolutely no possibility of parole." In May 2006, for example, 65% of Americans supported the death penalty in general (matching the current figure),while,separately,47% said they preferred the death penalty to life imprisonment as a penalty for murder when given that choice (48% favored life imprisonment).

The Gallop finding is consistent with a 2006 University of Kentucky poll that found 67% of Kentucky residents questioned preferred a long prison sentence over execution for those convicted of murder. As part of a larger statewide survey in August and September, 2006 the University of Kentucky Survey Research Center asked 836 randomly selected Kentuckians over age 18 which of five possible punishments was most appropriate for someone convicted of aggravated murder.

Findings include:

• 36.2 percent favored life with no possibility of parole.
• 31.4 percent favored one of three other prison sentences: life without parole for 20 years, life without parole for 25 years, 20 to 50 years with no parole possible until 85 percent of the sentence is served.
• 30.5 percent favored the death penalty.


Balancing Retribution with Risk of Executing the Innocent

Gallop surveys have stated the retribution case in four ways: 1) the punishment fits the crime (37%); 2) the criminal deserves the punishment (13%); 3) it is fair 3%) and 4) it serves justice (4%) (Gallop Poll June 30, 2006 citing a 2003 Gallop survey) most of which may be summed up in the dictum ‘an eye for an eye.’

So the retribution case has two overarching formulations: (1) the punishment fits the crime (37%) and (2) the criminal deserves the punishment (20%).

When New Mexico abolished the death penalty in 2009, Governor Richardson acknowledged the retribution theory. But he rejected the practice because of the possibility of executing an innocent person. He concluded that life in prison without possibility of parole was a just penalty and adequate retribution perhaps even worse than death.

Governor Richardson’s concern about executing the innocent is well founded. Since 1977, 139 death row prisoners have been exonerated (in most cases ‘exonerated’ means the defendant was acquitted upon retrial and in a handful of cases ‘exoneration’ means the defendant was declared innocent based on DNA evidence). And now there is a 2009 report commissioned by the Texas Forensic Science Commission that points toward the conclusion that Texas executed an innocent man in 1991. Cameron Todd Willingham was electrocuted in 1991 for the arson murder of his three children. The new report finds that the arson claims were not sustainable (although this finding is hotly contested by some law enforcement officials). Resolution of the matter awaits adjudication by the State of Texas but progress is on hold since the Governor recently changed the composition of the committee assigned to sort out the facts and findings.

In Kentucky, the very recent Louisville case of Edwin A. Chandler is cause for grave concern. The judge that released Chandler in 2009 apologized to him from the bench (he was not the original sentencing judge) and called his case a miscarriage of justice. Chandler served nine years in prison for a murder he did not commit during a robbery he had nothing to do with. He could have received the death penalty.

Chandler’s innocence claims were corroborated by an eye witness that called the police and said that Chandler was not the shooter (but the witness was never called to testify at trial), by a fingerprint and DNA sample at the crime scene that was not found until years later and by a convenience store surveillance tape that the police lost before Chandler’s trial. The jury that convicted Chandler was ‘death qualified’ during voir dire meaning the state could have asked for the death penalty. But by closing argument it did not even though Chandler was convicted. The jury decision was based in part on the strength of Chandler’s actual confession to the crime which he said he made it in response to a threat by police to prosecute his family for being criminal accessories to murder if he did not.


Policy Conundrums
Retribution with Kindness

Administration of capital punishment requires navigating between the separate worlds of too much and not enough. The dual imperatives of getting more blood for blood in a humane way while at the same time satisfying the sense of equivalence that distinguishes retributive justice are impossible to reconcile.

How can a punishment informed by a sense of justice that imposes retributive equivalence be harmonized with the quest for a painless execution? How can the state methodically kill a person as an act of just retribution and at the same time comport with standards of decency that distinguish a civilized society? How can killing be kindness? How does the state reconcile the conflicting imperatives of retributive equivalence and humane execution?

Dr. Alfred P. Southwick thought he had the answer to the question in 1890 after ten years of work on his invention: the electric chair. Upon witnessing its first jolt in 1890 on killer William Kemmler, Dr. Southwick exclaimed:

There is the culmination of ten years work and study! We live in a higher civilization from this day.

Dr. Southwick didn’t know it when he spoke but the first jolt failed to kill Kemmler and George Westinghouse later said of the messy execution that ensued:

It could have been done better with an ax.

Lethal injection is the direct successor to Dr. Southwick’s 19th search for a method of premeditated, ritualized and efficient killing that demonstrates that we live in a higher civilization. Other methods have proved to have too much potential for misadventure to compete for the oxymoronic title of humane killing.


Legal Conundrums


Capital punishment has placed the constitution on a collision course with itself. On the one hand the constitution requires wise discretion applied to the special facts of every death penalty case and on the other hand the use of an objective, uniform standard consistently applied to all persons in all death penalty cases. In reinstating the death penalty in 1976, the U. S. Supreme Court approved state death penalty laws that yoked together the two disparate requirements under a due process template of the Model Penal Code called "guided discretion." But guided discretion is a contradiction of terms: the more there is of one, the less there is of the other. As a result, the 'guided discretion' templates aims for a very narrow target, perhaps a theoretical target, and is always in danger of erring either on the side of arbitrariness or on the side of inflexibility. The difficulty in applying the guided discretion standard is the reason why so many death penalty cases are reversed and retired and why the appeals are so protracted.

In 2009 The American Law Institute (ALI), the author of the Model Penal Code withdrew the standard from the model penal code … in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.The reauthorization of the death penalty by the Supreme Court was predicated on this standard which the ALI has now withdrawn. The ALI legal consultants that evaluated how the template has fared since 1976 have declared it a failure.

At some point, the courts will have to confirm the ALI’s conclusion.

Conclusion


The death penalty has failed as a matter of law and social policy.
The death penalty is not compatible with central values of our constitution: justice and basic fairness. It is impossible to formulate workable procedural rules in harmony with substantive legal requirements of eliminating arbitrariness and discrimination while achieving fundamental fairness through individualized sentencing.

The mere possibility of prosecutorial misfeasance or malfeasance in a death penalty case or the possibility of executing the innocent together with evidence of discrimination, including geographic discrimination, protracted litigation that seems to turn on technicalities collectively damages the legitimacy of the law and the credibility of the legal system.

No combination of procedural rules, substantive regulations, death protocols and eventless executions can save the death penalty from the genealogy from which it derives its inherent barbarism, its humane deficiencies, its premeditated cruelty and its costly failures.

The death penalty is killing itself.

DV
2968 words/ 25 minutes
February 26, 2010


Facts about the Death Penalty
(As of December, 2009)

35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 36 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 36
Women on Death Row (Kentucky) 1
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.

Tuesday, January 19, 2010

The Death of the Death Penalty

The Death of the Death Penalty

The death penalty is dead. Killed not by judicial fiat or parliamentary maneuver or executive order but by the people. Juries comprised of citizens who swear they support the death penalty in principle have simply quit imposing it in practice.

There have been four executions in Kentucky since 1956. Two involved inmates who dropped their appeals. Scarcity can be a sign of selectivity but the rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity.

The death penalty record in Kentucky support two conclusions:

1) It no longer serves a law enforcement purpose;
2) It offends Kentucky’s evolving standard of decency.

The supreme court case that resulted in the upcoming public hearings on execution techniques did not rule that the death penalty is legal--only that its machinery must be tinkered, tuned and tended in public.

The U.S. Supreme Court case that reviewed lethal injection in Kentucky did not rule on the legality of the death penalty but only a particular method of execution based upon a particular limited record about a particular regulation that we now know was not properly adopted.

The Kentucky Supreme Court should next address capital punishment head on not to abolish it on its own authority but by ruling that the people already have, secure in the knowledge that life in prison without parole protects the public and punishes the criminal.

Saturday, January 16, 2010

Compassion

How Do We Enlarge the Great Circle of Compassion?

A Homily Prepared for Delivery
January 17, 2010
National Coalition to Abolish the Death Penalty Annual Meeting
Louisville, KY

By: Donald Vish

***



Thank you for inviting me to present a homily on compassion. We all know there’s no thief worse than a bad sermon. So special thanks to each of you for your presence, your trust and your faith in coming to this room.



My invitation included specific instructions to answer the question:



How Do We Enlarge the Great Circle of Compassion?



I’m going to answer that question. I’m just not going to answer it very quickly. I wouldn’t be a very good preacher if I got to the point too soon.



The Golden Rule: (Say it. You know the words): do unto others as you would have others do unto you.



That’s a good rule of good sense. It’s valuable as a cornerstone of justice. It’s a solid metric for fairness. It’s true in the same way it’s true to say: whoever smiles will always have a reason to smile.



But the Golden Rule is not an expression of compassion.



First, it affirms otherness, thee and me that leads to thine and mine. Secondly, it is ever so slightly animated with self-interest expressing in Elizabethan language what the 3-card Monte dealer says more plainly about the arc of justice: what goes around comes around.



Plato’s dictum comes closer to compassion: be kind, everyone you meet is fighting a hard battle.



Plato’s sermon is built on empathy not compassion. Empathy is based on perception, understanding. Empathy is neither sympathy nor pity each of which relates to the adverse impact someone else’s suffering has on us! 

Sympathy means ‘fellow feeling’ and requires a certain degree of equality. Pity, on the other hand, regards its object as weak and hence as inferior.



Compassion is the selfless disposition to relieve human suffering. It soars above empathy and sympathy and pity. Compassion is the noblest trait of human nature. Dante would call it caritas, pure love with no expectation of a quid pro quo.



Make no mistake: many good works are built on the Golden Rule, on empathy, on sympathy, on pity and on lesser motives like fame and glory and vanity and self-interest. They all count. But compassion is in a class by itself.



When General Agamemnon was ready to launch 1000 ships to invade Troy, he had two problems: the first one is so typical of blood vengeance—no one knew how to get to Troy. Blood vengeance is always ready to act before its ready to act. Vengeance never misses an opportunity to miss an opportunity. It is ever and always aimless and misdirected even though its arc is predictable and certain: it comes around then goes around. 



Like Macbeth’s vaulting ambition, vengeance o’erleaps itself and falls on th’other side of reason.



Agamemnon’s second problem was the lack of wind. The ships could not sail. So he made a bargain with the gods—he sacrificed his daughter for a favorable breeze. Then the ships sailed for Troy and war began.

Agamemnon’s murder of his daughter ensured that he would return home from war to more war. 

Under the law of blood vengeance, his daughter’s mother was obligated to murder him—and she did; and under the law of blood vengeance her son was obligated to murder her—and he did; and under the law of blood vengeance, her daughter was obligated to murder her brother…and so it goes.



The arc of vengeance is as sure and as certain as the laws of mathematics: a series ending where it begins, and repeating itself. 

Those words are the dictionary definition of a circle—as well as a complete treatise on blood vengeanc.

Like a pebble dropped into a pond, vengeance sends out ripple after ripple each extending its sphere until it runs out of space or spends itself.

Vengeance is a circle.

 A circle delineates, it defines and separates the inside from the outside. The circle is closed. Any segment of a circle is a curved line.



In architecture, a curved line is pretty but it’s weak. Leonardo reflected on the weakness of curved lines and made an astounding observation: two curved lines when propped up against each other form an arch: one of the strongest formations in architecture. So an arch is a strength created by two weaknesses.



Here’s the answer to the questionenlarge the circle of compassion by never closing it.



Keep the circle open. Reach out, join hands with one another in a tangible display of unity, solidarity and connectedness; but let those on each end extend an open hand to the world at-large as an invitation to others to join hands.



Let the circle of compassion be like Leonardo’s arch, a strength comprised of many weaknesses.




January 12, 2010 
777 words 7 minutes 55 seconds