Will the U.S. Finally End the Death Penalty?

In the past, abolition efforts have faced a backlash—but Gavin Newsom’s moratorium may be different.
The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.
On Wednesday, again, California walked back its commitment to the death penalty. Though not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject…

Bizarre behavior no impediment to gun purchases by man accused of killing Lafayette police officer

Ian Howard
THE ADVOCATE - While responding to a theft complaint at a grocery store last year, Lafayette Police discovered the suspect, 28-year-old Ian Howard, running frantically outside the store, reversing directions and stopping to stare at people.

Howard told officers the FBI wanted to kill him, and that white vans had been following him. He couldn’t remember his name or address, and he did not respond when officers asked if he’d been taking the prescription medication that he was carrying, according to a police report.

Eight and a half months later, Howard was accused of shooting two employees at a convenience store, then murdering Cpl. Michael Middlebrook, the Lafayette Police officer who responded to the shooting scene. The employees survived their wounds.

Howard’s case is proceeding as a wave of new laws across the United States aim to keep guns out of the hands of people who pose an imminent risk of violence, mentally ill or not. And they illustrate the challenges of crafting effective policies to accomplish that goal, something people on all sides of the gun debate say they desire.

Howard, the only suspect in the Oct. 1 shooting, now faces the death penalty. He has pleaded not guilty.

Howard was taken to the University Hospital and Clinics emergency room following the grocery store complaint “due to his mental state,” according to the police report. And a physician and coroner’s deputy separately deemed him a threat to himself and others within 72 hours, according to emergency certificates obtained by The Advocate. The certificates authorized holding Howard for 15 days of emergency inpatient treatment. He was released in two days, according to a hospital spokeswoman, and it’s unclear if he received additional treatment.

What seems clear is that any additional treatment was limited to three days, and it did not prevent Howard from immediately arming himself. Nor did any law.

Howard acquired two guns within three weeks of his emergency room visit. One was an AR-15 rifle, purchased on Jan. 21, 2017, three days after Howard was released from the emergency room. The other was a Smith and Wesson pistol, purchased three weeks after the rifle and later recovered from Howard’s car at the convenience store shooting scene.

Many of the details of what exactly happened at the convenience store have not been clearly established in the court record. The lead State Police investigator, Christopher Leday, testified that Howard used the pistol to shoot the employees, and a different gun that was already in the store to shoot Middlebrook.

Police discovered the AR-15, live ammunition and a box for the pistol, along with matching purchase receipts, while executing a search warrant on Howard’s apartment, according to Leday’s March 6 courtroom testimony.

Patient privacy protocols restrict what can be publicly known about Howard’s treatment, and his family declined an interview request.

“We have no comment at this time. Our prayers and deepest sympathies are with the family of Cpl. Middlebrook and the other victims of this tragedy,” Edwin Howard, the defendant’s father, said in a statement.

The grocery store complaint was not the last time Lafayette Police were alerted to Howard’s potentially threatening behavior. Eight months after his emergency room visit, and three weeks before Middlebrook was shot to death, Howard allegedly threatened to kill a supervisor who fired him from a south Lafayette restaurant.

In addition to verbal threats, Howard texted the supervisor a picture of “a deceased person with his brains blown out from his head,” according to a Sept. 11 police report. He warned the supervisor not to be in the parking lot at night, the police report says, and he sent similarly threatening messages to another employee.

The restaurant employees did not press charges, and police left a voicemail for Howard instructing him to stop the threats. The police report does not indicate any additional law enforcement response to the incident.

Howard’s previous encounters with police, as well as his status as the only suspect in the shooting death of a police officer, did not warrant seizing the AR-15 rifle and live ammunition found in Howard’s apartment, based on Leday’s testimony. 

Upon questioning by Howard’s attorneys, Leday acknowledged that police left the weapon as they’d found it, in the vacant apartment of a man whose incarcerated status had been splashed across the news media. There was no reason to seize it, Leday said, since it was not suspected of being used as part of any crime, and nothing indicated that it was illegally obtained.

“He has rights,” Leday said, adding that police can’t “just take his weapon if it’s not included in the investigation. We can’t do that.”

It’s not clear where the rifle and ammunition are currently located. A State Police spokesman referred questions to the District Attorney’s Office of the 15th Judicial District, which did not respond to repeated queries.

Red flags

Be a man, buy a gunGun laws aimed at disarming people, mentally ill or not, who pose imminent threats of violence are gaining steam across the United States. It’s not clear, though, how such laws could be written in a way that would have prevented Howard from acquiring and keeping the guns he obtained after his brief emergency room stay. 

Modeled after domestic violence restraining orders, these “risk-based gun removal” laws, also known as red-flag laws, allow law enforcement, and in some cases family members of potentially threatening individuals, to petition courts for temporary gun seizures.

After weighing the person’s history of substance abuse, domestic violence and other evidence of imminent risk, which can include mental health, judges can order “ex-parte” gun seizures without allowing the targeted person to weigh in.

The person is then entitled to a hearing, usually within two or three weeks, to argue for the return of the guns, and judges determine if it’s safe to do so or if the guns should be held another year.

The idea is to effectively target risky behavior, which isn’t well captured by focusing strictly on mental health, said Allison Anderman, managing attorney at the Giffords Law Center, which advocates gun-violence prevention laws.

“Part of the whole point of these laws is to disarm someone without subjecting them to the stigma of involuntary commitment,” Anderman said. “It’s much less of an invasive procedure than taking someone into custody.”

The earliest versions of these laws passed in Indiana and Connecticut about two decades ago, allowing law enforcement to remove guns after showing probable cause of imminent danger. California’s 2014 red-flag law introduced the restraining orders, which could be granted even when the targeted individual didn’t own guns, prohibiting them from future purchases.

The California law also expanded the categories of who can petition to include family or household members. Opponents argued this opened the door to people abusing the law during interpersonal conflicts. The California State Assembly recently approved a bill adding employers, school personnel and co-workers.

Versions of red-flag laws are now on the books in nine states, including four that have passed since the Valentine’s Day high school shooting in Parkland, Fla., according to The Trace, a nonprofit news website focused on gun violence. Such laws were considered, or are still being considered, in 10 other states, including Louisiana.

The National Rifle Association has expressed general support for red-flag laws. The executive director of the NRA’s institute for legislative action, Chris Cox, said gun restraining orders can be a good way to reduce violence, so long as they have “strong due process protections, and require that the person get treatment.”

A proposal for a Louisiana red-flag law by state Rep. Gary Carter, D-New Orleans, floundered in the recently concluded legislative session. Carter’s House Bill 448 received one hearing in the House Administration of Criminal Justice committee that ended with Carter requesting another hearing to allow for modifications before a vote. A second hearing of the bill was never scheduled.

Carter’s bill allowed only district attorneys and peace officers to petition for gun seizures and limited the initial seizure period to 14 days, both features of more restrictive red-flag laws.

The committee chairman, Sherman Mack, R-Albany, applauded Carter for proposing the bill, but showed little enthusiasm for it during the April 5 committee hearing. Mack’s chief concern was that the bill targets people who “possess” guns, without clarifying who owns them. Carter repeatedly tried to assure Mack that he could modify the bill to specify legal ownership, but Mack was unmoved.

“You have to define possession, ownership,” Mack said. “I get the bill, but it’s got some pretty wide-open doors that could be abused.”

Carter was joined at the hearing by Victoria Coy, who was then the executive director of the Louisiana Violence Reduction Coalition. In an interview, Coy said she thought Mack was deliberately nitpicking technicalities that could have been easily addressed in amendments.

“The questions being asked were not in good faith,” Coy said. “We expected to go in to debate fairly. We expected to debate the merits of the law.”

A Washington, D.C.-based state liaison with the National Rifle Association, Erin Luper, reiterated at the hearing that the NRA supports gun restraining orders, but opposed Carter’s bill.

The NRA’s opposition to Carter’s bill also included its lack of mechanism for returning weapons once they expire, and the reporting of gun restraining orders to the national background check system with no way to remove them, Luper said.

Court orders

People with mental illnesses who have been deemed by “a court, board, commission or other lawful authority” to be dangerous to themselves or others are prohibited from buying guns under federal regulations. That and other prohibitions are enforced via the National Instant Criminal Background Check System, which relies on states to report disqualifying information.

Louisiana only reports court orders for treatment to the national database, not emergency holds like the one imposed on Howard, even though both result in involuntary inpatient care

Emergency holds are far more common in Louisiana than judicial commitments. There are typically between 1,800 and 2,000 judicial commitments annually across the state, according to the Mental Health Advocacy Service, a state agency that provides legal representation for the mentally ill. More than 4,500 coroner’s emergency certificates were executed in Lafayette Parish alone last year, according to the Coroner’s Office.

Coroner’s certificates in Lafayette Parish almost always come after those signed by physicians, so they provide a reasonable estimate of the number of 15-day emergency holds, according to the Coroner’s Office chief investigator.

At least one large-parish coroner thinks emergency holds ought to merit consideration of eligibility for gun ownership, even if such holds are an imperfect measure for automatic disqualification.

“It should trigger additional background checks and psychosocial testing,” said Jefferson Parish Coroner Gerry Cvitanovich. “I think that’s a reasonable course of action. I’m not saying they can’t have a gun. I’m just saying they should undergo some additional scrutiny.”

Scholarly research shows that a tiny percentage of people with severe mental illnesses such as schizophrenia, bipolar disorder and major depression commit violence, but that the rate of violence among this group is still higher than others.

Only 2.9 percent of people with those diagnoses commit violence in any given year, almost equivalent to the violence rate among substance abusers who are not mentally ill, according to a 2011 study published in the journal Social Psychiatry and Psychiatric Epidemiology.

The violence rate jumps to 10 percent for people are severely mentally ill and also substance abusers, according to the study, and the rate is 0.8 percent for those who are neither.

That was one of many studies the Consortium for Risk-Based Firearm Policy drew upon in a landmark 2013 report that fueled the policy movement toward restraining and protection orders at the heart red flag laws over the last five years. The report warns against directly attributing risk to mental illness, since diagnosis-based gun policies are unlikely to reduce violence.

Lack of anger impulse control, childhood trauma and substance abuse are more reliable indicators of violence risk than a mental health diagnosis, said Amy Barnhorst, a UC-Davis clinical professor who was a member of the consortium.

“It’s going to miss a lot of people who are very dangerous,” Barnhorst said, referring to gun restrictions based on diagnosis. “It’s also going to include a lot of people who are not dangerous, because the standard, run-of-the-mill person with a serious mental illness is not a wild and crazy, murderous psychopath.”

At the same time, however, the consortium recommended hospitalization-based prohibitions that are tougher than the common, judicial-based interpretation of federal regulations.

The consortium recommended states expand the prohibition to temporarily include anyone subjected to short-term, involuntary psychiatric hospitalization, based on its finding that there is a heightened risk for violence among “small subgroups” of people with severe mental illnesses in the period after discharge. Such a prohibition, effective for five years, already exists in California.

But legal advocates for the mentally ill such as Kathy Cook, deputy general counsel for the Mental Health Advocacy Service, are concerned prohibitions like the one in California risk unfair discrimination while ignoring more threatening individuals.

Short-term, involuntary hospitalizations in Louisiana are based on brief evaluations, the results of which can be influenced by a variety of factors unrelated to dangerous mental illness, Cook said.

The only way hospitalization-based prohibitions can be fair, Cook said, is if there are similar ones based on one-time evaluations for other groups, such as failed drug screens for substance abusers.

“I don’t know of any other rights that we have that would be in danger based on a 15-minute eyeball conversation,” Cook said. “You would not do that with any other type of population group.”

But, Barnhorst said, hospitalization-based prohibition has two advantages as a policy: they target a specific group for whom there is evidence of heightened risk, and they are based on trackable events.

“That is what good firearm legislation should do,” Barnhorst said. “We already have a lot more broad and less evidence-based prohibitions in place. We are never going to be able to look out there and pick out exactly who is going to be violent.”

Consortium recommendations

On its face, the consortium’s recommendation of a gun prohibition based on involuntary hospitalization would seem to have precluded Howard’s gun purchases.

Thoughts and prayersBut Barnhorst noted a critical distinction: the recommendation was intended to include an evaluation by a psychiatrist, which she said is necessary to trigger the California prohibition.

While Howard had unimpeded access to guns in the days after his emergency room stay, he had no access to psychiatrists during the days he was there. It’s not clear if Howard received a psychiatric evaluation at another facility during his involuntary treatment last year.

The University Hospital emergency room has a designated extension for psychiatric patients, but it has no mental health professionals on staff, said Ali Sadeghi, the emergency director.

“I don’t have access to psychiatrists, I don’t have a counselor, I don’t have a social warker,” Sadeghi said. “We do all of that ourselves.”

He said the limited space available for psychiatric patients admitted to the University Hospital emergency room means that sometimes decisions on discharges are made based on non-medical considerations, such as whether family members are available to pick up patients.

“I don’t have the ability to be the psychiatrist, but I’m making the judgment as a psychiatrist,” Sadeghi said. “Because of circumstances, we are forced to do something. We make a judgment saying you are probably safe to go home.”

Source: The Advocate, klfy.com, May 26, 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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