In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

US capital punishment fall to 40-year low in 2016

Fewer death sentences were handed down in the US this year than at any time in the last four decades, a study finds.

Only 30 such penalties were imposed in 2016, the lowest since the US Supreme Court reinstated capital punishment in 1976 after a four-year hiatus.

Five states, Georgia, Texas, Alabama, Florida and Missouri, carried out 20 executions.

It continues a 20-year downward trend in US capital punishment, says the Death Penalty Information Center.

The new DPIC report showed that not only have executions slowed or even halted in the vast majority of states, but juries and judges are sentencing fewer people to death.

"This year, death sentences will be lower than at any other time in the modern history of the American death penalty," says Robert Dunham, executive director of the DPIC and lead author of the study. "That, I think, is a big story."

After the US death penalty was reinstated 40 years ago, the number of death sentences and executions began steadily rising.

In 1977, 137 death sentences were handed down.

The trend peaked in the 1990s, with 98 executions in 1999 and 315 new death sentences in 1996.

Then the downward trend began.

In 2016, only 30 new death sentences were handed down, and 20 executions took place.

That was the fewest number of executions since 1991.

Of the five states that put inmates to death in 2016, Georgia led the way with nine executions, followed by Texas with seven, Alabama with two, and both Florida and Missouri executed one person.

New death sentences are down 37% from 2015, according to the report, and fewer death sentences were imposed in 2016 "than in any other year since the Supreme Court declared US death penalty statutes unconstitutional in... 1972".

Mr Dunham points out that the low number of new death sentences was notable as well.

Georgia, for example, sentenced no-one to death in 2016.

"Texas had four new death sentences, which is very low for the state," he said.

"Dallas and Harris counties, which is where Houston and Dallas are, imposed no new death sentences for only the second time since the 1980s."

The halt of executions in some states can be explained by the difficulty procuring legally acceptable drugs needed for lethal injections in the US.

Many pharmaceutical companies refuse to provide them, and the European Union banned the export of the drugs to the US in 2011.

Some states have resorted to clandestine deals with compounding pharmacies or different drug cocktails, and a series of botched executions in recent years has raised legal and ethical concerns about these practices.

Legal challenges that can take decades to resolve and exonerations around the country have also slowed executions.

So far there have been 156 men and women exonerated from death row in the US.

"Lawyers cost an awful lot more than prison guards, and there is just enough ambivalence for state killing as a criminal punishment to make the due process standard higher than for other kinds of punishment," says Frank Zimring, a death penalty expert and professor at the University of California-Berkeley School of Law.

"The combination of high expense and low assurance has sort of taken the enthusiasm out."

According to various polls, American opinions are roughly split when it comes to the death penalty.

A Pew Research Center poll shows approval for the death penalty has declined from a high of 80% in the 1990s to only 49% in favour now.

However, Robert Blecker, a death penalty supporter and professor at New York Law School, says that the majority of Americans still favour the use of capital punishment.

"[Approval may be] down from an all-time high of 80%, but it's also up from the 1968 low," he says.

"California supported it, Oklahoma put it in its constitution, and Nebraska reversed its own legislature.

"How much clearer evidence could you possibly want as to where American public opinion is?"

During this year's election season, three US states had items related to capital punishment on their ballots, and in all three states, death penalty proponents won big on election night.

Nebraskans voted to bring their death penalty back after legislators banned the practice in 2015.

Californians voted to speed up their executions rather than abolish them.

In Oklahoma, voters approved new constitutional language to protect the use of capital punishment.

Mr Zimring concedes that the general public may not necessarily approve of the precipitous decline in the use of capital punishment.

But he points out that when other nations abolished their death penalty it took some time for the general public to concur.

"When you study the western European decline of the death penalty, it turns out that public support for hanging people persists for almost 20 years after moral leadership abolishes the death penalty," he says.

"It takes a long time for public passions to catch up with the moral leadership of elites."

Although this year's figures continue to bolster the narrative that the American criminal justice system is increasingly turning away from the death penalty, the end of capital punishment may still be a long way off.

"The end game is going to be long and expensive and in a deep way, unnecessary," says Mr Zimring.

"That's billions of dollars and many too many executions in the American future."

Source: BBC News, Jessica Lussenhop, December 21, 2016

The Strange Case of the American Death Penalty

It’s a paradoxical moment in the history of the death penalty in the United States. The number of executions has dwindled to just a few, but the voters, even in the most liberal states, seem to want the punishment to remain on the books. That’s the message of the annual report from the Death Penalty Information Center, which produces the most comprehensive analysis of the subject each year.

The headline on the report—“Another Record Decline in Death Penalty Use”—notes that the remarkable fall in the number of executions and death sentences is part of a longer trend, one that continued this year. The numbers were the lowest in the modern era of the American death penalty, after a period, between 1972 and 1976, when the Supreme Court put a stop to executions. There were just twenty executions in the United States in 2016, down from a peak of ninety-eight, in 1999. Even more remarkable, just thirty people were sentenced to death this year, compared with three hundred and fifteen in 1996. Indeed, as the report further notes, “Fewer new death sentences were imposed in the past decade than in the decade preceding the Supreme Court’s invalidation of capital punishment in 1972.” The reduction in death sentences means that the decline in executions is likely to continue as well, because the pipeline of new cases is not as full.

Despite these numbers, death-penalty abolitionists also received a host of bad news this year. In 2015, after a long political struggle, the Nebraska state legislature (which is unicameral) repealed the death penalty. But supporters of capital punishment put the issue on the ballot in the 2016 election, and more than sixty per cent of the voters supported its restoration. Voters in California were asked to address two contradictory initiatives concerning the death penalty. One would have ended executions in the state once and for all; the other sought to remove some of the legal barriers that have prevented executions from proceeding quickly, or really at all, in the state. The abolition initiative failed, with fifty-three per cent of the voters opposed, and the law for expediting the death penalty passed, with slightly more than fifty-one per cent of the vote. (It’s not clear what, if any, practical difference passage of the initiative will mean. The legal standoffs in California are likely to continue. There are seven hundred and forty-one people on death row in the state, but there hasn’t been an execution there since 2006.)

The debate over the death penalty seems to have taken on some of the characteristics of the Presidential race this year, as a contest between populists and élitists. Judges play the part of the élites in this particular debate, and the judiciary, as a whole, has shown ever-greater hostility toward approving executions. This year, the Supreme Court ruled for prisoners in several high-profile death-penalty decisions, holding that racial bias infected jury selection, in Foster v. Chatman, a case from Georgia, and rejecting Florida’s system of allowing judges to impose the death penalty even when jurors support life in prison, in Hurst v. Florida. (The Florida legislature sought to correct the defects identified by the Supreme Court in the Hurst case, only to have the Florida Supreme Court overrule the new law as well.) Delaware’s Supreme Court also nullified its state’s death-penalty law this year.

But, as the election results in California and Nebraska illustrate, the voters—the populists—continue to back the death penalty, as does the President-elect. (Donald Trump notoriously called for the execution of the Central Park Five, fourteen-, fifteen-, and sixteen-year-olds who were charged with a high-profile rape and beating, in 1989. Even though the five were later exonerated, Trump, during this year’s campaign, reiterated his belief in their guilt.) The Death Penalty Information Center report notes that public-opinion polls show some decline in support for the death penalty, but the opposition has never achieved close to a majority. And, notwithstanding ambiguous poll numbers, politicians from Trump to Barack Obama understand that support for the death penalty, at least in some form, is less politically risky than opposition to it. (Obama, for example, has supported executions for “extraordinarily heinous crimes.”) Trump’s victory, and those of other Republicans, can only reinforce that view.

Many factors have led to the decline in the death penalty in recent years: less crime over all, with less fear among the public as a result; DNA exonerations leading jurors to pause before imposing death; the reluctance of pharmaceutical companies to provide lethal-injection drugs and the resulting search (still under way) for a drug protocol that passes constitutional muster; the length and expense of the appeals mandated by the Supreme Court. All those reasons for the decline remain, but so, too, does the United States remain a country that has had the death penalty in effect for virtually all of its history. That’s not likely to change, either. The death penalty may keep shrinking, but it will probably never entirely go away.

Source: The New Yorker, Jeffrey Toobin, December 21, 2016

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