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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

The Cruelty of Executing the Sick and Elderly

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Two controversial cases in Alabama reveal a disturbing trend in the death penalty in America.

Vernon Madison doesn’t know why he’s going to be executed.

The state of Alabama tells him that he fatally shot a police officer in the back and wounded his ex-girlfriend during a domestic dispute in 1985. State courts tossed out his first two convictions in the 1980s before a jury found him guilty for the third time in 1994. Those jurors, who were told of Vernon’s history of mental illness, sentenced him to life imprisonment without parole. The presiding judge then used an esoteric provision of Alabama law to sentence Madison to death instead.

Now 67 years old, the longtime death-row inmate is hardly the same man who was convicted of capital murder almost a quarter-century ago. Multiple strokes have left him with vascular dementia, a severe and degenerative neurological disease that has stripped Madison of his mental functions. He can no longer see, walk independently, or control his bladder. According to his petition for review, a psychologist’s examination found that he can no longer remember the alphabet past the letter G or name the previous president of the United States.

The U.S. Supreme Court agreed to take Madison’s case on Monday. But he isn’t the only ailing death-row prisoner that Alabama wants to execute. Last week, the state tried to carry out its death warrant against Doyle Hamm, a 61-year-old inmate suffering from terminal lymphoma. Hamm’s lawyer Bernard Harcourt warned ahead of time that his client’s illness, chemotherapy regimen, and past history of drug use would make it impossible for prison personnel to find a suitable vein for a lethal injection. A misapplied injection can have horrific consequences, as shown by Oklahoma’s botched execution of Clayton Lockett in 2015.

On the night of his execution last week, the prediction came true. Alabama executioners struggled to find a workable vein for two and a half hours as they punctured him multiple times across his arms, legs, and groin. “The IV personnel almost certainly punctured Doyle’s bladder, because he was urinating blood for the next day,” Harcourt told NBC News. “They may have hit his femoral artery as well, because suddenly there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen.” The team eventually gave up, as the execution warrant expired at midnight.

Both men are symptomatic of America’s aging death rows. In 2013, the latest year with available data, the federal Bureau of Justice Statistics found that death-row inmates waited an average of 15 and a half years between conviction and execution. In states that rarely perform executions, the sentence is effectively life imprisonment with a chance of death. The problem isn’t limited to death row, either: Thanks to mandatory minimums and decades-long sentences, the number of American inmates over age 55 jumped fourfold between 1990 and 2010.

The procedural history of Madison’s case reads like a travelogue through the death penalty’s most persistent flaws. The state court of criminal appeals vacated his first conviction for the murder in 1986 after learning that county prosecutors had struck all seven black potential jurors before the trial. (Madison is also black.) A second trial in 1990 also resulted in his conviction, only to be tossed out again by the appeals court because one of the prosecution’s expert witnesses went beyond the factual record.

At his third trial, in 1994, Madison’s lawyers highlighted his history of mental illness. A psychologist testified for the defense that Madison’s symptoms took the form of paranoid delusions, which may have lessened his culpability when he shot and killed the police officer in 1985. After weighing the aggravating and mitigating circumstances, jurors found him guilty of murder and sentenced him to life imprisonment without parole.

That would have been the end of the legal saga in most of the country, at least where the death penalty is concerned. But Alabama was one of a handful of states that allowed judicial overrides in capital cases. (The state abolished the practice in 2017, as the Supreme Court’s intervention appeared imminent, but didn’t apply it retroactively.) Madison’s third trial judge was Ferrill McRae, who campaigned for his elected post on a tough-on-crime platform and often assigned himself the county’s capital murder cases. McRae overrode the jury and sent Madison to death row.

The Supreme Court has long interpreted the Eighth Amendment to forbid executions of those who cannot comprehend the punishment. In 1974, the justices banned executions of prisoners “who have lost their sanity” in Ford v. Wainwright, citing precedents as far back as Hanoverian England that described the practice as “savage and inhuman.” The court later ruled in the 2005 case Atkins v. Virginia that states could also no longer execute people with intellectual disabilities. In 2007, the justices expanded the prohibition in Panetti v. Quarterman to require lower courts to consider whether an inmate’s mental illness left him unable to understand why they were being executed.

“The potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question,” Justice Anthony Kennedy wrote for the Panetti majority, “if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole.”

Madison’s lawyers drew a direct line between those rulings and their client’s plight. “Since Ford and Panetti, scientific and medical advancements have led to a greater understanding of how neurocognitive disorders manifest in individuals who suffer from cognitive decline due to formerly undefined reasons,” he argued in their petition to the court. “Vernon Madison is one of these individuals.”

In most places across the United States, the death penalty is dying out. Fewer jurisdictions are pursuing capital cases because of the extraordinary costs and risk of wrongful convictions. More states are stepping back from capital punishment by simply not performing executions or by abolishing it altogether. But it is not yet dead. Until then, those who remain to face the executioner’s needle increasingly seem to be not the worst of the worst, but rather the sick and dying, the aged and infirm, the impoverished and the incompetent.

Source: The New Republic, Matt Ford, February 27, 2018


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

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