Throwing in the towel (finally)

Now it's over.

Yesterday the lawsuit filed by the former Republican misdemeanor judges was dismissed on a motion filed by the 15 incoming Democratic judges. Judge Darrell Jordan was never a part of the original lawsuit - he was later joined in his opposition by Mike Fields, the former judge in Court 14.

The dismissal of the suit means that Harris County elected officials will stop wasting taxpayer money defending an unconstitutional bail system. The outgoing judges fought tooth and nail to walk back US District Judge Lee Rosenthal's order. They knew that the leverage the courts had over indigent defendants was based on a bail system designed to keep them behind bars.

Under the old rules the county magistrates (who preside over probable cause hearings at the jail) would take out a chart, look up the offense, check for priors and then find the corresponding bail amount. Never once did the magistrate bother to ask if the defendant could afford bail. Not once did the magistrate bother to ask what amount, if any, could the defendant afford. The defendants weren't represented by counsel and had no idea they could ask for a personal bond (not that any of the magistrates would have given anyone such a bond).

This system insured that indigent defendants would jump at the opportunity to dispose of their cases for a guilty plea and time served. Court-appointed counsel were only too willing to go along with this charade of justice - lest they piss off the court that was paying them.

The result was a plea mill. Defendants would be led into the courtroom like a chain gang and would stand in front of the judge. The judge would spend no more than a minute or two on each case and the chain gang would be led back into the holdover.

This system guaranteed convictions for prosecutors, fewer pending cases for the judges and convictions for the defendants.

Those days are now in the past. Defendants who couldn't afford to post bond in the past will now be released on personal bonds and will be able to assist in their defense. They will be able to sleep in their own beds, see their families and go to their jobs.

No longer will a misdemeanor defendant have to make that agonizing decision on whether to fight his case or cop a plea to get out of jail.

A tip of my hat to the new judges who made this happen.

Execution Watch: 12/4/2018

On Tuesday night, the death machine rolls on...

JOSEPH GARCIA. Condemned following his conviction in the December 2000 shooting death of an Irving police officer, Garcia and six other men were on the run after escaping from the Connally Unit in Kenedy, Texas. The officer was killed as he responded to a call at a sporting goods store that was being burglarized by the Texas 7.

Mr. Garcia's legal team has requested a 30-day reprieve from Gov. Greg Abbott to investigate claims that the Houston-based compounding pharmacy that allegedly produces the pentobarbital used by the State to kill inmates. A report in BuzzFeed that revealed the Greenpark Compounding Pharmacy (& Gifts) whose license was placed on probation by the state in November 2016 for compounding the wrong drugs for three children who had to be taken to the hospital as a result.

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, Execution Watch will broadcast live:

Tuesday, December 4, 2018, 6-7 PM Central Time

KPFT-FM Houston 90.1, HD 3 or online at:

http://executionwatch.org > Listen

Blowing smoke at the courthouse

Oh, campaign season is all around us. The other day I got a mailer from the Republican Party of Texas promoting Republican judges. I suppose for the ordinary person who hasn't the slightest clue how the criminal (in)justice system works, the mailer might have an effect.

But not really. You see, the results in most judicial races mirrors that of the races at the top of the ballot. There might be a difference of a couple percentage points but, in general, the results are pretty much in line in Harris County.

The mailer tells us that "Republican judges follow the law" and implore folks to "Keep Harris County safe by voting for Republican judges."

Those tag lines are horridly misleading because many judges on the ballot have absolutely nothing to do with criminal law and the average citizen hasn't a clue as to who sits on a civil bench and who sits on a criminal bench.

The mailer states that upwards of 95% of the judges endorsed by police organizations are Republican. I don't doubt that - considering that the Republicans have pretty much owned the county criminal benches for 20 years or more. And many of these judges have track records of being friendly to the state (since too many to count went right from the DA's office to the bench) - they will give the police the benefit of the doubt when it comes to suppression issues.

The mailer also tells us that some criminals have been released from jail (on bond) or have been given probation (through plea bargains made between defense attorneys and prosecutors) and then later committed other crimes.

But, wait a second. Aren't the Republicans supposed to be stingy with the purse strings? Locking up more folks when the jails are already at capacity means building new jails or paying other counties to house folks awaiting trial. How on earth is that being fiscally responsible?

Then, of course, there is this whole matter of the 8th Amendment and the lawsuit challenging the way bonds are set in Harris County. The county has continually lost at every step of the process yet 14 of the 15 Republican judges have continued the fight to defend an unconstitutional system at a cost of several million dollars.

I guess, what the hell, it's not their money so another round of briefs and depositions all around.

So, if you want judges who will continue to spend taxpayer money defending a bad system who use the old bond schedule as a way to coerce pleas from the poor, and if you want judges who are going to spend taxpayer money housing inmates who haven't been convicted of anything, then, yes, by all means, vote for the Republican candidates on the November ballot.

Washington Supreme Court strikes down the death penalty

Allen Eugene Gregory was not a very good person. In 1996 he robbed, raped and murdered a woman. Two years later he was investigated for another rape. During that investigation police discovered evidence that tied Mr. Gregory to the robbery, rape and murder.

Mr. Gregory was convicted of aggravated first degree murder in the 1996 case. The jury sentenced him to death.

He was also convicted of the 1998 rape. The Washington Supreme Court later reversed the rape conviction.

On appeal to the Washington Supreme Court, the death sentence was overturned and the case remanded because the state relied upon the (reversed) rape conviction in the penalty phase of the trial.

In a new punishment hearing, a second jury then sentenced Mr. Gregory to death.

In the meantime, prosecutors learned that their complaining witness in the rape case lied at the first trial. Prosecutors, realizing they couldn't rely on their witness to tell the truth, then dismissed the rape cases.

***

In 1972 in Furman v. Georgia, the US Supreme Court declared the death penalty to be unconstitutional in its application. The Court held that states had imposed the death penalty in "arbitrary and capricious manner."

Three years later a ballot initiative in Washington passed making the death penalty mandatory for specified offenses. The following year, in Woodson v. North Carolina, the US Supreme Court held that mandatory death sentences were also unconstitutional.

Washington then passed a statute that called for a sentencing hearing where evidence of aggravating factors, as well as mitigating factors, would be presented to a jury. If the jury found an aggravating circumstance and deemed the mitigating factor insufficient to warrant mercy, a death sentence could be imposed.

The Washington Supreme Court struck down that statute because it allowed the state to impose the death penalty on a defendant who demanded his constitutional right to a trial, but it did not impose it on defendants who pleaded guilty.

The death penalty statute was then rewritten to require automatic review (a proportionality review) of death sentences by the state Supreme Court to determine whether there was sufficient evidence to uphold the death sentence, whether the death sentence was disproportionate to the penalty assessed in similar cases, whether passion or prejudice contributed to the death sentence and whether the defendant had an intellectual disability.

***

Mr. Gregory appealed his death sentence, arguing that it was disproportionate to other sentences meted out for similar crimes and that is was applied in an arbitrary manner in his case because he was black.

In 2014, Katherine Beckett co-authored a report that found there was a wide disparity among counties when it came to imposing the death penalty and that a portion of that disparity had to do with the black population in the county. She also pointed out that a black defendant was four-and-a-half times more likely to receive a death sentence than a white defendant.

Like many states, Washington's state constitution has a provision outlawing cruel and unusual punishment. And, like in many states, the protections granted under that clause are stronger than the protections afforded under the 8th Amendment to the US Constitution.

And it was that clause that the Washington Supreme Court relied upon in striking down the Washington death penalty statute for the fourth time.

***

In 2000 about 50.3% of the population in Texas was white. Latinos made up about 34.2% and Blacks made up 12%.

Since 1976, 34.5% of the inmates murdered at the hands of the state were Black while 55.6% where white and 8.2% were Latino. Over the years, 75.6% of the victims in death penalty cases were white while only 15.3% were Black  and 6.9% were Latino.

For a long time Harris County was known as the death penalty capital of the United States - sending more people to death row each year than many countries. In the 2000 census, whites made up 56.5% of the county's population while Blacks made up 18.9% and Latinos 32.9%.

It is clear from the numbers alone that the death penalty is applied disproportionately based on race. I don't have the knowledge of statistics to run regression analysis to determine how much weight is placed on race in death penalty decisions, but when Black inmates are executed at a rate three times higher than their proportion of the general population, something is wrong.

Capital punishment is little more than modern day lynching with the imprimatur of the court. The fact that those on the right favor it with such fervor tells you that whites are overwhelmingly in favor of killing inmates (the fact that preachers and so-called religious conservatives support it tells you that they are nothing more than fucking hypocrites). The death penalty is a tool of oppression and social control.

The death penalty is applied in an arbitrary and capricious manner and nothing can change that. It is high time we moved beyond barbarism.

Of mice and men and executions and intellectual disabilities

Last week the Texas Court of Criminal Appeals stayed the execution of Juan Segundo pending a determination of whether or not his intellectual disability is so severe as to render him unfit for execution.

At the time of Mr. Segundo's trial, Texas used what have become known as the Briseno Factors to determine whether a person who has a borderline IQ score is or is not mentally retarded in the eyes of the law.

To set the stage, the medical community accepts an IQ of 70 as the cut-off for mental retardation. There is a margin of error built into the test so that scores of just below (and just above) 70 may reflect serious intellectual disability.

In order to satisfy the bloodlust of Texans looking to kill as many inmates as possible, the Court of Criminal Appeals decided in the Briseno case that if a person sentenced to death had an IQ of near 70 then the courts could look at some other factors to determine if he or she was mentally competent enough to strap down to a gurney and murder.

The Briseno factors could also be called the "Lennie Test" after the character in the John Steinbeck novel Of Mice and Men. The Texas Court of Criminal Appeals declared that most Texans would agree that Lennie was not a proper candidate for execution. Maybe Texans of a certain age would be able to apply that test but, thanks to home schooling and religious "know-nothingism," I'm not so certain how many of our younger citizens would even understand the reference.

After considering the IQ score, the Court determined that the amorphous concept of "adaptive functioning" would serve as a good criteria. Of course just because a person has adapted to their surroundings doesn't mean they are competent. And then there was the corollary -- what if a person was unable to show adaptive functioning skills? Heaven forbid the State of Texas couldn't stick a needle full of poison up someone's arm in a fit of revenge.

In response to the US Supreme Court's Atkins decision, the Court of Criminal Appeals adopted the following factors to determine whether a defendant was eligible for execution:

1. Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities— think he was mentally retarded at that time, and, if so, act in accordance with that determination? 

2. Has the person formulated plans and carried them through or is his conduct impulsive? 

3. Does his conduct show leadership or does it show that he is led around by others? 

4. Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? 

5. Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? 

6. Can the person hide facts or lie effectively in his own or others’ interests? 

7. Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The problem with this test, per SCOTUS, was that it deviated from standard medical practice and placed the burden of proving intellectual disability on the defendant. In addition, a defendant would have to show that a particular deficit was the result of any other mental condition but was the result of the underlying intellectual disability.

In Moore v. Texas, the US Supreme Court struck down the Briseno  factors due to their inherent subjectivity. Unfortunately for Mr. Moore, however, the Nine in Black said it was okay for Texas to kill him.

Mr. Segundo has been spared the needle, for now, while the State of Texas goes about the business of drawing up new criteria for determining when an intellectual disability makes one ineligible for execution.

Killing, just because

How much fun can it possibly be to exact revenge when the target of your wrath hasn't the slightest clue why?

In 1985 Vernon Madison went to his ex-girlfriend's house in Mobile (AL) to pick up his possessions. After he left her house he shot and killed a police officer who was outside providing protection to her. Mr. Madison was convicted of capital murder and sentenced to death. That verdict was overturned due to prosecutorial misconduct.

He was convicted a second time after the retrial. But, once again, the conviction was reversed due to prosecturial misconduct. So the state tried him a third time.

The third time he was convicted (again). The jury recommended life in prison. But, because Alabama law said the jury's verdict on sentencing was only advisory (which raises the question of why even bothering to go to the jury for punishment), he was sentenced to die by the judge.

"This involved the literal execution of a police officer and at some point the state looks forward to being able to obtain the punishment that the trial judge believed was appropriate in this case." -- Alabama Deputy Atty. General Thomas Govan, Jr.

Over the last 30 years Mr. Madison, 68, has been on death row in solitary confinement. During that time he has suffered multiple strokes. He suffers from dementia and part of his brain has been shown to be dead. He is legally blind. He has trouble walking and has slurred speech.

Bryan Stevenson, founder of the Equal Justice Initiative, represents Mr. Madison. According to Mr. Stevenson, Mr. Madison is so delusional he doesn't know what day of the week it is, nor does he know what year it is. He has no memory of the murder for which he was convicted.

Yesterday Mr. Stevenson went before the US Supreme Court asking them to halt Thursday's scheduled execution on the grounds that killing Mr. Madison would constitute cruel and unusual punishment because of his dementia.

Despite his dementia, lower courts have consistently ruled that Mr. Madison was not delusional, nor psychotic, and therefore he could be strapped down to a gurney and killed by the state. Mr. Stevenson argued before the Court that because Mr. Madison's dementia is the result of a brain injury, and that the brain injury has rendered him incapable of producing memories of the murder, executing him would be unconstitutional.

Mr. Stevenson told the Court that, unlike other constitutional provisions such as the 4th and 5th Amendments,which are windows to view a series of actions, the 8th Amendment's prohibition on cruel and unusual punishment provides us with a mirror that reveals something about us.

Alabama's Deputy Attorney General Thomas Govan, Jr. countered with saying the state needed to exact its revenge.

Justice Kennedy tended to be the deciding vote in these types of cases and with him off the bench, the calculus for Mr. Madison is a bit more daunting.

I think it speaks volumes that the state's primary argument in this case is the need to get revenge for a person's past acts. The argument fails to take into consideration what has taken place during the time an inmate has been behind bars. It also fails to take into account the state of the inmate's mind. That state got its revenge by cutting Mr. Madison off from the rest of the world by placing him in solitary confinement for the last three decades.

And what purpose is served by executing a man who has no memory of the crime that landed him on death row? What purpose is served when his brain will not allow him to create any memories? Isn't the point of punishment for the target of the punishment to know why he is being treated the way he is? Outside that knowledge, isn't punishment just another word for torture?

See also:

"US Supreme Court hears case of Alabama death row inmate Vernon Madison" Al.com (10/2/2018)

Money to burn

In its never-ending quest to make prisons as inhospitable as it can (just because it can), the State of Texas spent $7 million fighting a lawsuit over the installation of air conditioning at a prison unit near College Station, Texas. Inmates filed the suit in 2014 arguing that the conditions in the prison during the summer violated the 8th Amendment's prohibition on cruel and unusual punishment.

The inmate suit pointed out that 23 inmates had died of heat stroke since 1998 including 10 who died during a heat wave in 2011.

Currently about 75% of prison housing units in Texas lack air conditioning.

The state wasn't having any of it. An expert hired by the Texas Department of Criminal Justice estimated that it would cost $20 million to install a/c at the prison. After a federal judge told Texas that the conditions were unconstitutional, the cost to install the a/c suddenly fell to a mere $11 million.

Under pressure to settle the case, lest the damages spiral out of control, TDCJ revised its estimate to install a/c down to $4 million. The estimate had come in so low that TDCJ has asked the legislature for more money to install a/c at a unit housing developmentally challenged inmates.

So, to recap, the geniuses running this state spent around $7 million dollars to defend a lawsuit when it only would have cost about $4 million to install the air conditioning system. Why was the state fighting the suit in the first place? Why would you spend almost three times as much to defend a lawsuit as it would cost to do what was asked of you?

This is fiscal responsibility for conservatives in Texas. We would rather spend a shitload of money so we don't set a precedent by doing the right thing. Then, when a loss is damn near guaranteed, we'll concede that we lied from the get go about the cost and we'll do the work.

So, Greg Abbott, what have you to say for yourself? What other uses were there for $11 million?

So, Dan Patrick, what have you to say for yourself? You're the one who's supposed to be the fiscal conservative, yet you set $11 million on fire to prove a point. You were a blowhard when you were the sports anchor at KHOU (and how I wish I could find footage of the time you painted yourself blue for an Oilers playoff game) and you're still a fucking blowhard today.

So, Ken Paxton, what have you to say for yourself? I understand it can be difficult to do your job when you're constantly fending off indictments and ethics charges, but surely a wingnut like yourself can't condone the waste of $11 million.

And, more importantly, why do we have prisons units in this state not equipped with air conditioning? What purpose does that serve? The men and women in these units are still human. They may have done things we find repugnant, but they still deserve to be treated better than animals. Making life as hard as possible for inmates does nothing for them when they are released back into society. But, hey, the inmates don't have a powerful lobby so we'll just make life hell for them until they file a lawsuit against us.

You think we'd know better by now.

A senseless death in the Harris County Jail

Debora Ann Lyons is the second inmate in the Harris County Jail to commit suicide in the last month. Ms. Lyons, who was taken into custody on July 22, 2018, hung herself on Tuesday night.

Ms. Lyons was arrested on misdemeanor theft charge. However, based upon her prior convictions, she was charged with a felony. Now, as an aside, I understand why the legislature allows prosecutors to enhance some offenses based upon prior convictions. The theory being that if you've been in trouble once or twice for the same offense the punishment needs to be a bit more severe. But, this doesn't work out so well on petty thefts.

I've had a client before who was charged with shoplifting toiletries from a drug store. What he did warranted no more than a Class B charge. But, since he had multiple theft convictions in the past, that little misdemeanor theft ended up landing him in district court with a felony charge. And I don't care how tough on crime you are, charging someone with felony theft over less than $100 worth of toiletries doesn't serve anyone's interests. Prison should be reserved for those who have done heinous crimes, sending someone to prison for petty theft is a waste of resources.

On the date she was charged, bail was set at $1,500. Ms. Lyons didn't have that kind of money -- but because the felony courts still rely on a piece of paper to determine how to set bond, that number was written down on a piece of paper without regard to Ms. Lyons' ability to pay.

Sound familiar?

It should.

This is the system which 14 Republican misdemeanor judges in Harris County are fighting to keep in place. Thus far they have spent over $6 million of taxpayer's money to defend a cash bail system that is unconstitutional. If US District Judge Lee Rosenthal's order applied to the district courts, Ms. Lyons would have been eligible for release on a PR bond within 48 hours of her arrest. Instead she sat in jail for nearly a month before she took her life.

The ultimate irony, of course, is that she was granted a PR bond on Wednesday -- the day after she hung herself.

So, even though this case was filed in district court as a felony, I still would like to hear one of the Republican misdemeanor judges defend the old system. It's the old system that killed Ms. Lyons. The last time I checked, the penalty for theft in Texas wasn't death.

It should come as no surprise to anyone that the 14 Republican misdemeanor judges who are fighting bail reform are all white. If you know anything about Harris County you also know that the vast majority of the people affected by bail reform aren't white. Racism, you see, plays real well out in the suburbs where the Republicans pick up most of their votes. And for all the talk you will hear from those judges, they aren't fighting bail reform to protect the public -- they are fighting it because the old system gave the state coercive power over minority defendants who couldn't afford to post bond. They were forced to plead guilty in order to get out of jail.

And, if they happened to get in trouble later, those convictions came back to bite them in the ass as their new cases were enhanced.

Ms. Lyons died because Harris County is doing everything it can to preserve a coercive system to force the poor to plead guilty regardless of the facts of their cases so they can get on with their lives.

In case you've forgotten the names of the judges who are fighting to preserve an unconstitutional system, here they are again:

• Paula Goodhart, County Criminal Court at Law No. 1
• Bill Harmon, County Criminal Court at Law No. 2
• Natalie Fleming, County Criminal Court at Law No. 3
• John Clinton, County Criminal Court at Law No. 4
• Margaret Harris, County Criminal Court at Law No. 5
• Larry Standley, County Criminal Court at Law No. 6
• Pam Derbyshire, County Criminal Court at Law No. 7
• Jay Karahan, County Criminal Court at Law No. 8
• Analia Wilkerson, County Criminal Court at Law No. 9
• Dan Spjut, County Criminal Court at Law No. 10
• Diane Bull, County Criminal Court at Law No. 11
• Robin Brown, County Criminal Court at Law No. 12
• Don Smyth, County Criminal Court at Law No. 13
• Jean Spradling, County Criminal Court at Law No. 15

The next time you see any of these judges, ask them why they are defending an unconstitutional cash bail system. Ask them why they are opposed to bail being set in a timely matter based upon the defendant's ability to pay. Ask them why they are wasting your tax dollars fighting bail reform.

Ask them why they haven't joined Judge Darrell Jordan and Judge Mike Fields on the other side of the coin.

Debora Ann Lyons was no angel. But she was someone's daughter. She was someone's mother. She had a family and she had friends. And she damn well didn't deserve to die in the Harris County Jail.

Sotomayor's scathing rebuke

Yesterday afternoon the US Supreme Court decided that the 8th Amendment is merely a useless appendage and denied Billy Ray Irick's request for a stay of execution.

But Justice Sonia Sotomayor wasn't having any of it. In her dissent she pointed out all of the problems with using midazolam as the first drug in a lethal cocktail. She wrote that the drug will cause Mr. Irick to feel the sensation of drowning, suffocating and being burned alive. She referred to the testimony given in Tennessee's recent trial over the legality of the three drug cocktail. She pointed out that once the paralytic takes effect, no one will know whether or not Mr. Irick is suffering because he will be unable to move and unable to speak.

She also referred to the absurdity of the Glossip decision's holding that the condemned inmate must not only present evidence that the state's selected method of execution is cruel but must also propose an alternative method to killing himself.

But she saved the best for last:

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding him behind a veneer of paralysis. I cannot in good conscience join this "rush to execute" without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Unfortunately I think we long ago accepted barbarism in this country.

Torture in Tennessee

Today the state of Tennessee is set to murder inmate Billy Ray Irick using a lethal injection cocktail using midazolam, vecuronium bromide and potassium chloride.

Midazolam is a sedative that will supposedly  render Mr. Irick unconscious. Vecuronium bromide is a paralytic that would prevent Mr. Irick from making any movements. Potassium chloride is the drug that will stop Mr. Irick's heart - and leave him dead on the gurney.

The question, however, is whether or not midazolam is an effective sedative for purposes of executing inmates. As has been seen in botched executions in Florida, Ohio, Arizona and Oklahoma, midazolam has led to excruciating pain for inmates and even aborted executions.

In 2013 William Happ was executed in Florida using midazolam. Witness accounts state that he remained conscious longer than usual and made more body movements after losing consciousness than normal.

In 2014 Dennis McGuire was executed in Ohio using midazolam. After being administered the drug, Mr. McGuire clenched his fists, gasped and struggled to breathe.

That same year Clayton Lockett died in Oklahoma after being administered midazolam. The drugs didn't kill him and the execution was called off abruptly in midstream. Mr. Lockett then died of cardiac arrest that night.

Still later that year Joseph Wood was executed in Arizona using midazolam. It took over two hours for Mr. Wood to die and one reporter said that Mr. Wood gasped for air more than 640 times.

There is no proof that midazolam is the appropriate drug for use in killing inmates. Inmates awaiting execution in Tennessee filed suit against the state arguing that the lethal cocktail would violate their 8th Amendment right to protection from cruel and unusual punishment. The argument is that the paralytic will render the inmate incapable of letting anyone know he is undergoing extreme pain during the process. For those watching from the gallery there would be no way to know if anything was going awry in the process.

During the court proceedings a pathologist called by the plaintiff's testified that he reviewed autopsies on 32 inmates who were executed. In 27 of those cases, the pathologist performing the autopsy found signs of pulmonary edema meaning the inmates had suffered respiratory distress during the executions.

The court in Tennessee, however, denied the plaintiffs' request for relief on the grounds that while they may or may not have proven that the new drug protocol was cruel or unusual, they didn't provide the state with a viable alternative to kill themselves.

That's right. The U.S. Supreme Court held in Glossip v. Gross, if you're challenging the constitutionality of a drug protocol for executions, you have to give the state an alternative method of taking your life.

Now we can sidestep the absurdity of that test for purposes of this argument. If a state wishes to carry out executions, that state must come up with a protocol for killing inmates that doesn't run afoul of the 8th Amendment. If evidence is brought forth that the protocol in question amounted to torture, then it's the state's responsibility to draw up a new protocol. To place the burden on those awaiting execution to draw up a protocol for their own death is about as Kafkaesque as you can get.

It's also a cop out from a court that doesn't want to dirty its hands in death penalty litigation. I know that many folks out there couldn't care less about whether an inmate suffers during an execution because they are focused on the pain and suffering he or she caused by killing someone else. To them I would point out that the purpose of our criminal (in)justice system isn't to obtain revenge. The purpose is to rehabilitate as many folks as we can and release them back into society to become productive citizens - those who can't be rehabilitated are then kept behind bars so they can't harm anyone else.

In many cases of death row inmates we are also talking about men who did stupid and/or despicable things when they were in their 20's and who have sat behind bars, in isolation, for two decades or more. To believe that they are the same people now that they were when the committed their crimes is pure fantasy.

There is no place in civilized society for this barbarism.

Fighting for injustice

Once again the Republican misdemeanor judges in Harris County have their panties in a wad. And, once again, it has to do with a federal judge telling them that the little bail bond scheme they followed for years is unconstitutional and must be changed.

The judges are upset because US District Judge Lee Rosenthal's revised order will force the county to release certain non-violent offenders within a certain time period. The judges claim this will endanger the public's safety.

Bullshit. What it will do is remove the coercive power the state had on criminal defendants to force them to plead guilty to crimes they didn't commit.

The way Harris County operated for years was to follow a bail bond schedule that didn't take the defendant's financial circumstances into effect when setting bail. The only things that mattered were the type of offense and whether the defendant had any prior convictions. Bond was set automatically by a piece of paper and thousands of folks were held in custody until they resolved their cases -- usually by pleading guilty in a mass plea for time served or some other token sentence.

Prosecutors got their convictions. Judges got cases off their dockets. And since those accused of criminal acts don't have an effective lobby - no one gave a fuck.

Anyone who has spent any time in this racket knows that it is a hell of a lot easier to fight one's case if one is not behind bars. When you're behind bars you're not working, not earning money, not seeing your family and all you can do is think about how many more days this hell is going to last.

When you're out on bond you can work and earn money. You sleep in your own bed. You see your friends and family. You can speak with you attorney face to face without a thick sheet of plexiglass between you. You're also not under the pressure to resolve the case quickly because you are able to resume your normal life.

And the misdemeanor judges in Harris County hate this. They hate the fact that defendants out on bond are able to fight their cases. They hate the fact that the state doesn't have the same coercive hold on them as they do on the defendants in the jumpsuits.

Well, let's be straight about one thing. It's unfair to lump all of the misdemeanor judges into the same pile. Darrell Jordan, a Democrat, and Michael Fields, a Republican, aren't part of the ongoing lawsuit. I don't think it's a coincidence that they are the only two black judges on the misdemeanor bench in Harris County.

Most of the defendants in the misdemeanor courts are black and Latino. These are the folks that conservative white voters in the suburbs have been taught to hate. As anyone who understands Harris County politics knows, Republican candidates rely on those suburban voters to get elected because they don't have a chance within the Houston city limits.

The judges who continue to spend our tax money to defend an unconstitutional bail bond system are spreading fear and hatred among their suburban supporters in a desperate measure to build up some sort of support for Republican candidates in what could very easily be a bloodbath for the wingnuts.

The Republican judges (minus Judge Fields) are furiously blowing on their dog whistles. And they are doing it, not to maintain public safety, but to maintain a criminal (in)justice system that targets the poor and those with dark skin.

And for those keeping tabs, the current bill for fighting the lawsuit is $6.6 million. How's that for financial responsibility?

Trying to throw a little shade around

In 2014, attorneys for three death row inmates filed open records requests with the State of Texas seeking to find the source of the drugs used for executing inmates. Then Attorney General Greg Abbott (now governor) decided that the state could withhold that information because the suppliers faced actual harm if their identities were revealed. Interestingly enough, on three previous occasions, Mr. Abbott determined the information was public.

Texas, in its ongoing quest to continue murdering inmates in god's name, fought like a cornered cat to keep the names of the pharmacies secret. They lost at the district court level. They lost at the Court of Appeals. And in June they lost at the State Supreme Court.

But has that stopped the state from continuing to withhold the information? Not a chance. The state filed a motion for rehearing last week.

Both Texas and Arizona are embroiled in litigation over whether the identities of pharmacies that provide drugs for lethal injections should be made public. The state argues that this is a guerrilla tactic from death penalty opponents to shut down the supply of drugs available to states for murdering inmates. They argue that the publicity that would rain down on such a pharmacy would make them think twice before supplying drugs for to the state.

The Republican led state legislature agreed and passed a law in 2015 that shielded the names of the suppliers from the public. Now I could go on for a while about how ironic it is that a bunch of bible-thumping christian conservatives are doing everything they can to make it easier for the state to violate one of their sacred commandments -- but that would just be picking the low-hanging fruit.

Instead we can talk about why the state wants to keep that information secret. First, however, we have to return to 2014 since the law passed by the legislature in 2015 was not retroactive. Once drug suppliers decided not to sell their drugs to states for the purpose of executing inmates, the states had two choices. The first was to "extend" the expiration date of the drugs on hand -- having no idea whether or not the drugs would be as effective after the manufacturer's expiration date. The second was to find compounding pharmacies that would manufacture the drug specifically for the state.

Since the drugs are made at the pharmacy, there is no way to test whether or not they are effective, how potent they are or if they carry any side effects. But what if that's not what was taking place? What if the purpose of shielding the names of the pharmacies is to keep the drug companies from finding out that the pharmacists are selling the manufacturers' drugs under veil of secrecy?

Sure, the compounding pharmacies would get a lot of bad publicity for supplying the drugs to the state -- but in some cases, customers would have no choice but to go to that pharmacy for their drugs. But if a manufacturer cut that pharmacy off from its supply of drugs, the pharmacy would have no choice but to stop providing drugs to the state.

I'm not saying this is what's actually happening - only that it might explain the state's doggedness in the fight.

The bigger issue, however, is the notion that elected officials run this state in our name. We have a right to know what's being done in our name. If the state wants to keep killing inmates, fine, but let's not try to be shady or secretive about it. And if a pharmacy is willing to play footsy with the state's killing machine, then the owner of the pharmacy needs to stand up and own it. His or her customers have a right to know if their pharmacist is aiding in the murder of inmates.

Texas Solicitor General Scott Keller is correct. Death penalty opponents have put pressure on manufacturers to cut off the supply of drugs needed to kill inmates. The belief is that a majority of Americans would be appalled if we went back to electrocuting, suffocating, hanging or shooting inmates. Such a course would run the death penalty right back into a confrontation with the Eighth Amendments ban on cruel and unusual punishment.

And death penalty advocates know that day is coming.

Losing leverage

The purpose of bail is to ensure that the accused appears in court to answer the charge against him and to ensure the safety of the community.

When courts leave their bail decisions up to a chart without regard to a defendant's ability to pay, the courts are abdicating their responsibility to uphold the law.

Harris County is currently under a court order from US District Judge Lee Rosenthal to release nonviolent misdemeanor defendants regardless of their ability to post a cash bond. Fourteen of the sixteen misdemeanor court judges in Harris County (all Republicans) are waging war against the order because it gums up the works.

On January 31, Dutchess County Judge Maria Rosa ruled that setting bail for defendants without regard to their ability to pay is unconstitutional. The case was brought by the New York Civil Liberties Union on behalf of Christopher Kunkeli who was held for almost three months in the Dutchess County jail because he couldn't afford the $5,000 bail in his case. He eventually pleaded guilty to a misdemeanor with an offer of time served.

According to the NYCLU, 71% of the inmates at the Dutchess County jail had not been convicted of anything. They were behind bars because they couldn't afford to post bail.

Of course the local District Attorney, William Grady, didn't see a problem with holding folks pending trial. It makes his life easier because after a while, most inmates will plead guilty to almost anything in exchange for getting out of jail.

Mr. Grady contends, much like the Harris County judges, that actually following the law is "misguided." What he means, of course, is that having defendants sleeping in their own beds removes the leverage his office had over them when trying to resolve their cases. Now his office might be burdened with the task of proving their guilt beyond a reasonable doubt.

It's a swing and a miss

And it's strike two against Harris County in their efforts to maintain an unconstitutional and discriminatory bail policy in place.

Last June, US District Judge Lee Rosenthal ordered Harris County to change the way in which those arrested for non-violent misdemeanors are treated. Out went the bond schedule that failed to take into account the individual financial circumstances of the accused. In came a system in which folks who couldn't afford bail were released on personal bonds and pretrial release.

Fourteen of the county misdemeanor judges joined together to challenge Judge Rosenthal's order. As noted here, Judge Mike Fields removed himself from the rest of the Republican judges recently.

Now the Fifth US Circuit Court of Appeals has issued its ruling and it affirmed Judge Rosenthal's order. This should be the death blow to the county's attempt to reinstitute the plea mill as no one would ever come to the conclusion that the Fifth Circuit Court is anything other than conservative at heart.

While the Court stopped short of saying that everyone charged with a misdemeanor has the right to pre-trial release, Harris County is required to conduct an individual assessment of each detainee.

The stance of the judges fighting to overturn Judge Rosenthal's order should come as quite jarring when compared to their tame campaign promises to see that justice is done.  The justice these judges have in mind is coercing defendants who can't afford to post bond to plead guilty to criminal acts without having the opportunity to investigate the facts and to hold the state to its burden of proof.

Now the leverage the judges and prosecutors had over many defendants is gone. And that's a very good thing, no matter what the Republican judges tell you between now and November.

On its way to the ash heap of history

For the second year in a row, the State of Texas murdered seven inmates. Last year marked the fewest executions in two decades, now that number has been duplicated.

But even though the number of executions has remained low for the past two years, Texas still led the nation in state-sponsored murder, outpacing the four killed in Arkansas. There have been a total of 30 executions across the country in 2017.

A number of factors account for this (encouraging) trend. The first is fewer people are being sentenced to die in Texas. That number has been dropping since Texas jurors were given the option of sentencing a defendant to life in prison without parole.

Legal challenges to the death penalty have also been more successful as the number of scheduled executions wanes. These challenges have ranged from attacks on junk science to the method of execution. Once drug suppliers began to restrict supplies of drugs needed in "lethal cocktails," states have had to draw up new drug protocols which have invited legal attack on Eighth Amendment grounds.

As the number of executions decreases, the population on death row has aged. Some inmates have "cheated" the executioner by dying in prison.

Attitudes toward the death penalty have also changed. Since 1995, support for the death penalty has dropped from 80% to 49%. While most whites support the death penalty, as the non-white share of the population increases, so do dissenting voices.

Bible thumpers, despite being told "thou shalt not kill," overwhelming support the right of the state to kill. And that, somehow, still makes them "pro-life" - whatever the hell that's supposed to mean.

Part of the reason behind this change of attitude has been the number of people sentenced to death who have been exonerated over the past dozen years or so. I think there is a growing realization that our trial process is flawed due to the sheer number of people who have been exonerated after having had a jury decide the state had proven its case beyond a reasonable doubt.

And that realization is what is most likely to kill off the death penalty in this country. The sheer number of exonerees tells us that innocent men have been murdered by the state in the past. And for a country that claims to follow the rule of law, one is too many.

As much as I would love to see the death penalty outlawed across the United States, I don't think that's likely to happen in the foreseeable future. However, I do think that the death penalty will go away on its own accord in my lifetime. It will be done away with by junk science, prosecutorial misconduct, lack of drugs and a growing belief that life without parole is more humane.

Ohio botches another murder

This past Wednesday, the state of Ohio attempted to murder Alva Campbell, a 69 year-old who's been on death row since 1997. And, once again, they fucked it up.

On a walk-through of the execution conducted on Monday, prison nurses were unable  to find a functioning vein during a walk-through on Monday. And before I go any further let me say that I can't think of too many things that could be more cruel than making an inmate participate in a dry run of his own execution. The very fact they go through this charade should tell you everything you need to know about why state-sanctioned killing should be abolished.

But when it came time to murder Mr. Campbell, suddenly not one nurse could find a vein. They tried in both arms. They tried his leg. But they couldn't find a suitable vein to pump poison into Mr. Campbell's body.

As another aside, each one of the nurses who participated in either the walk-through or the actual execution attempt should be stripped of their licenses. I don't care how much you may want the money, aiding in the murder of another person is a violation of oath you took when you became a nurse.

After 45 minutes of agony the Director of the Ohio Department of Rehabilitation and Correction, Gary Mohr, called off the execution. My only question to Mr. Mohr is how come it took so long to realize you needed to call it off?

And, while I'm waiting for that answer, maybe someone can explain to me what greater purpose is served by executing an elderly man for a crime that took place 20 years ago.

Murdering an inmate is not a function of rehabilitation and it certainly has nothing to do with correcting behavior. Maybe Ohio should add "and Revenge" into the name of the department.

Gov. John Kasich, who had the opportunity to do the right thing, instead rescheduled the execution for June 5, 2019. Maybe he's thinking Mr. Campbell will make life easier for him and die between now and then.

I'm still waiting...

Prison inmates sue Texas over conditions

I'm sure there are plenty of folks out there who don't give two damns whether or not the state provides air conditioning for its inmates in state prison.

But they should.

Our entire prison system was born of the idea that the best way to "cure" a person of criminal intent was to take them out of the environment that bred that intent and educate them in the honest ways of the world. So we built penitentiaries out in the middle of nowhere.

Then somewhere down the line the idea came about that prisons should be about punishment, not rehabilitation. So we made life harder for inmates and stripped them of their dignity all in the name of that Old Testament trope "an eye for an eye" or some bullshit like that.

Then we decided that society was best served when we just plain eliminated folks from society who had shown a penchant for misbehaving (I know I am painting a very broad stroke). We decided it was better to just lock 'em up and throw away the key since neither of the first two schools of thought seemed to be working.

Not coincidentally, this movement toward removing folks from society sprung up as the courts decided that the Constitution applied equally to black folks as well as white folk. Prisons took their place as one of our preferred modes of oppression. The move over the last two decades toward mass incarceration is nothing but a tool of social control. That is Bill Clinton's true legacy.

And that brings us back to Texas where a group of inmates has filed suit against the state alleging that the conditions in Texas prisons amount to cruel and unusual punishment. Specifically the lawsuit focuses on the lack of air conditioning in Texas prisons.

Now we could debate all day long on sentencing and parole and prison conditions, but I would hope that we could all agree that forcing folks to live in cramped quarters in the Texas heat without air conditioning is beyond cruel.

"All of the people that tend to die are the sickest and the most fragile among the inmates. What makes what's going on reprehensible is that the department knows this. We're asking the court to force the Texas Department of Criminal Justice to reduce the temperatures to a safe and livable amount." -- Jeff Edwards, lead counsel

Sure, there are people around Texas who don't have air conditioning - but that doesn't matter when it comes to how the state treats those entrusted to its care. Food, health care and sanitary conditions in prison are already deplorable around the state. Why don't we remove the potential deadly consequences of heat stroke from the sentences of those behind bars?

Let us not forget that those are people behind bars. They are men and women with families and friends. We can't continue to treat them as nothing but a number.

A common sense decision

Terrence Williams was convicted of murder for killing Amos Norwood in 1984. Mr. Williams said he did it because Mr. Norwood had abused him when he was a child. Nonetheless, the District Attorney, Ronald D. Castille, made the decision to seek the death penalty.

In 2012 a Pennsylvania Post-Conviction Relief Act (PCRA) court stayed the execution and ordered a new sentencing hearing as a result of Brady violations on the part of the prosecutor.

In 2014, the Pennsylvania State Supreme Court reinstated Mr. Williams' death sentence.

Nothing new there. Except that the chief justice was Mr. Ronald D. Castille. The same Ronald D. Castille who signed off on the death sentence almost 30 years before.

Yesterday, in Williams v. Pennsylvania, No. 15-5040 (2016),U.S. Supreme Court Justice Anthony Kennedy was the swing vote in a 5-3 majority that decided a judge must recuse himself from ruling on a capital case in which he had a "significant personal involvement" as a prosecutor.

Makes perfect sense to me.

But the question is why did this have to go to the highest court in the land to make such a basic finding? Mr. Castille, of course, thinks the ruling is ridiculous. But it's Mr. Castille's logic (or lack thereof) that I find ridiculous.

Mr. Castille was an elected district attorney. He made the decision to seek the death penalty against Mr. Williams. He made that decision for any number of reasons. And he thought everything was kosher when the question of whether or not to reinstate the death penalty in the case came before him in his role as Chief Justice of the Pennsylvania State Supreme Court. At what point did this train run off the rails?

Mr. Castille's concern is that a good number of judges come out of the prosecutor's office and that their fingerprints are all over too many cases to keep track of. He's worried that judges will have to recuse themselves by the bucketload as a result of this opinion.

Maybe he's right.

And maybe that's not such a bad thing were it to happen.

Whether Mr. Castille wishes to admit it or not, his vote in the case in 2014 was nothing more than an affirmation of a decision he made in 1984 that someone deserved to die. He wasn't going to second-guess himself. There was no chance he would have voted against reinstating the death penalty because that would be an admission that he was wrong in the first place. I doubt seriously that any of his colleagues on the bench were going to call him out on it, either.

The conflict of interest is clear and Mr. Castille should have recused himself without being asked because of his involvement in the case at the trial court level. His failure to do so, and his insistence that he did nothing wrong or suspect, speaks volumes about his judgment, or lack thereof.

Update: 5th Circuit halts scheduled execution

Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel. 

- Judge Tom Price, Texas Court of Criminal Appeals; Ex parte Panetti (No. WR-37,145-04)

Yesterday, just hours before he was scheduled to be murdered at the hands of the State of Texas, the Fifth Circuit Court of Appeals halted Scott Panetti's execution in order to review the legal claims made by his attorneys.

Last week the Texas Court of Criminal Appeals denied Mr. Panetti's writ seeking to halt the scheduled execution. Judge Tom Price, who is retiring from the bench at the end of this term, wrote a dissenting opinion in which he questioned the value of the death penalty. He said it served no penal purpose. He also expressed his reservations on the death penalty in light of the number of exonerations that have taken place over the past few years.

But Judge Price is a little bit late to the dinner table. If his concerns are enough to motivate him to question the legitimacy of the death penalty at the end of his time on the bench, where were those concerns when Mr. Panetti's case came before the Court on direct appeal and on prior writ applications? Where were those concerns when other inmate's lives were on the line?

The one question I can't seem to get out of my head is why on earth the trial judge would allow a diagnosed schizophrenic to fire his appointed counsel and proceed to trial pro se. Even if the initial decision could be justified, once it became apparent that Mr. Panetti hadn't the slightest clue as to what was going on, counsel should have been appointed. We're talking about a man's life here. This isn't about moving a docket along.

If we are going to continue to try to take away people's lives in the courtroom, then we damn well better be sure every procedure is followed and every protective measure is taken with regard to the accused. Anything less just shows us to be a bunch of ignorant rednecks holding a noose in the courtyard square.

Execution Watch: 12/3/2014

"[T]his has been like a slow-moving train wreck since 1995."  -- Kathryn Kase, attorney for Scott Panetti

On Wednesday night, the State of Texas will kill again...

SCOTT PANETTI. Convicted in the September 1992 shooting deaths of his in-laws inside their Fredericksburg home, Mr. Panetti told police it was his alter ego, Sarge, who committed the slayings. Mr. Panetti's previous execution date was put off by the Supreme Court, though the justices refused last month to hear his latest appeal, clearing the way for a new execution date to be set. He was diagnosed as schizophrenic and hospitalized multiple times in the 10 years leading up to the slayings. Mr. Panetti was allowed to represent himself at trial. He wore a purple cowboy outfit and called witnesses including John F. Kennedy and Jesus Christ. Mental health professionals who have evaluated Mr. Panetti say he believes the State of Texas wishes to kill him to prevent him from preaching the gospel.

For more information see:

"Can Ron Paul and conservative evangelicals save a Texas death row inmate?" Mother Jones (11/26/14)

"Texas execution of a severely mentally ill man would be an outrage," Los Angeles Times (11/29/14)

"Lawyers try to save 'delusional' death row murderer, 56, who tried to subpoena Jesus Christ and JFK at his trial, from Wednesday execution," Daily Mail (11/29/14)

RADIO SHOW PREVIEW

EXECUTION WATCH

Unless a stay is issued, we'll broadcast live:

Wednesday, December 3, 2014, 6-7 PM Central Time

KPFT-FM Houston 90.1 Online...

http://executionwatch.org > Listen