Judges puts a halt to executions in Arkansas

Arkansas is the latest state to run into legal problems with the method it uses to murder inmates. Last week a Pulaski County circuit judge enjoined the state from carrying out any more executions because the state's new lethal injection law, passed last year, gives too much discretion to the state Department of Corrections at the expense of the separation of powers doctrine.

Arkansas has not executed a prisoner since 2005 and its lethal injection statute was declared unconstitutional by the state Supreme Court in 2009. In early 2013 the state legislature passed a new death penalty statute. As a result of the new law, the state Supreme Court lifted the stays of execution and told prisoners who wished to challenge the law that they would have to go to a county circuit judge. In response inmates on death row filed suits challenging the legality of the new protocol.

The key challenge to the statute is the move from using fast-acting drugs to slow-acting drugs in the lethal cocktail due to the inability of the state to get its hands on the good stuff that manufacturers have stopped selling to states looking to use the drugs to murder inmates. The new law would give the Department of Corrections the authority to determine the lethal cocktail to be used. Inmates allege this violates the separation of powers doctrine in that it is the purview of the legislative branch to determine how an execution is to be carried out.

The ongoing litigation spotlights one of the main problems with the actual implementation of the death penalty. Who decides how an execution is to be carried out? The legislature passes a statute creating the death penalty. The legislature decides how an inmate is to be killed. A person is convicted in a court of law and sentenced to death based upon the model created by the legislature. Once the person is convicted he is handed over to the department of corrections (or whatever term in used in your state) to carry out the sentence. The department of corrections doesn't get to decide the method to be used - they are only responsible for housing the inmate, setting the execution date and carrying out the execution.

Now in some states executive agencies (such as the department of corrections) are given the power to draft and implement regulations to aid in the enforcement of the law. The breath test regulations created by the Department of Public Safety in Texas comes to mind. The DPS gets to choose what breath test machine will be used and what procedures must be followed by the operators and technicians - but the DPS doesn't get to choose what the legal limit is.

Is giving the authority to determine the lethal cocktail to be used akin to allowing the state police agency to determine which breath test machine to use or is it more like allowing the legislature to determine the mode of execution? The drugs used to murder inmates all have different properties and effects. Is a lethal one-drug overdose of a powerful sedative the same as a cocktail that includes an anesthetic, a paralytic and a drug that stops the heart the same mode of execution?

The Constitution is the target of NTSB's Most Wanted List

Oh, the Tenth Amendment is alive and well. Y'all remember the Tenth Amendment, right? That's the one that says

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

You also remember the separation of powers doctrine. You know, the one that says the legislature enacts the law, the executive enforces the law and the courts rule on the law.

The last time I checked, it was up to the state legislature to amend or change the penal code. It's the state legislature's job to decide what is and what isn't against the law.

We have folks jumping up and down and cheering for those who espouse federalism, "states' rights," and limited government. But now we have the National Transportation Safety Board (NTSB) entering the fray with its "Most Wanted List" and pressuring state governments to change and amend state penal codes. That's right, the federal government is putting pressure on the states to bend to the will of los federales. More than than, the executive branch of the federal government is putting the screws to state legislatures to fall into line.

Here's the NTSB's agenda:

• Enact legislation to reduce crashes involving repeat offenders who drink large amounts of alcohol, including:

  • Frequent, statewide sobriety checkpoints.

• More effective measures (sanctions/treatment) for first time arrests with high blood alcohol concentration and repeat offenders.

• Zero blood alcohol requirement for those already convicted of driving while intoxicated.

• Administrative license revocation for refusing to take or failing an evidential test for alcohol.

• Vehicle sanctions for DWI offenders to separate drinking from driving.

• Elimination of plea-bargaining DWI offenses and programs that divert offenders and purge offense records.

• DWI offense records retention for at least 10 years to identify repeat offenders.

• Special sanction court-based programs such as DWI courts for hard core DWI offenders

Let's just go down the list, shall we?

Sobriety checkpoints have been declared unconstitutional in Texas. Why? Because the police must have reasonable suspicion or probable cause to pull you over. Sobriety checkpoints would allow the police to harass motorists without reason.

As for punishments, the legislature has determined that a first-time DWI merits a sentence of up to 6 months in the county jail and a fine not to exceed $2,000. A subsequent offense can get you 12 months in the county jail and a fine of up to $4,000. If you still haven't learned your lesson, a third offense is a third degree felony and will get you a bed in the state penitentiary. As for probation, it's up to the court to impose whatever conditions it feels are appropriate when suspending a sentence.

Zero blood alcohol? Last time I checked, it was legal for an adult in Texas to consume alcoholic beverages. The last time I checked, it's legal to drive so long as you haven't lost the normal use of your mental or physical faculties due to the consumption of alcohol. Need I remind anyone, Prohibition didn't work the first time.

The license suspension for refusing or failing a breath test - let's just talk about double jeopardy, collateral estoppel and the Fifth Amendment. The entire ALR program in Texas is just a way to coerce motorists to blow into the state's breath test machine so the state can obtain evidence it wouldn't have any other way of obtaining. And we already have vampires and their black-robed friends just waiting to take your blood if you decide to exercise your right to refuse.

The NTSB wants to stop prosecutors from offering pretrial diversions or "reductions" in DWI cases. Here we go -- Washington meddling in the affairs of local jurisdictions. There are any number of reasons why a pretrial diversion in a DWI case might be the right solution. There are also good reasons why some DWI's are "reduced" to obstruction of a highway or reckless driving. In the name of dragging everyone into the criminal (in)justice system, the government hasn't given a second thought to the consequences that follow a criminal conviction.

And my favorite, the DWI court - a facade of justice where defense attorneys are prodded to become a member of "the team" and sell their client out. Either treat DWI like a criminal offense and let the criminal (in)justice system take care of it, or treat it as a medical condition and let the doctors treat the disease. The criminal (in)justice system is not equipped to be a social service provider. The purpose of the criminal courts is to determine whether an individual violated the laws of the state, not to prescribe treatment for a medical condition.

If you like what Bret Ligon, Warren Diepraam and their crew are doing up in Montgomery County, jump aboard for the ride.

Let the witch hunt begin!

Sometimes the cure can be worse than the ailment

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. -- Texas Constitution, Art. II

Texas State Senator John Whitmire recognizes that there is something wrong with the manner in which Texas handles motorists accused of drunk driving. He understands that the surcharges imposed by the Department of Public Safety are onerous. He gets that motorists don't want a DWI conviction on their records because of the surcharges or because it may cost them their job.

What he doesn't get, apparently, is the separation of powers clause in the Texas Constitution. Sen. Whitmire is upset because different counties handle DWI cases differently. In Galveston County, it's not unusual for a motorist accused of drunk driving to plead guilty to obstruction of a highway. In Harris County, a person accused of DWI who has never been in trouble with the law before can enter the DIVERT program and (cross your fingers) have the matter expunged after completing their probation (more on this later). Get pulled over in Fort Bend County and if the case is not dismissed, plead guilty or go to trial.

Sen. Whitmire wants to put together a "working group" to figure out how to ensure that DWI's are handled the same across the state. No word on whether that working group will include defense attorneys or not.

My question, however, is who cares if Tom Green County treats first-time DWI's one way, Cameron County treats them another way and Jefferson County treats them a different way. No one questions why for so long capital crimes were handled one way in Harris County and, seemingly, another way across the rest of the Lone Star State. No one seems concerned that every county has a different policy toward pretrial diversion on nonviolent offenses such as shoplifting or possession of minor amounts of marijuana.

In Bexar County, District Attorney Susan Reed dealt with a backlog of cases by allowing first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.

Reed said her goal was to get to offenders quickly and impose strict requirements because she believes that is the way to keep people from repeat drunken driving: "It's really got teeth in it for trying to stop the behavior." Besides avoiding the surcharge, she said, the absence of a formal DWI charge keeps people from possibly losing their jobs over the matter.

Whitmire voiced concern that allowing such a charge would hide a defendant's first drunken-driving offense, allowing him to avoid enhanced penalties if he offends again.

"We're losing a record of what that person's actual offense is," he said. -- Houston Chronicle (7/8/2010)

Allowing defendants to plead to a different charge? Really? C'mon, Senator, you are well aware that it happens every day in courthouses across this state and across the country. That's why it's called a plea bargain. Why the concern when it happens in a DWI case? The records will still indicate that the person was arrested and charged with driving while intoxicated regardless of what the person actually pleads to.

Here's an idea for you, Senator. Why not allow deferred adjudication for those accused of DWI? Even with a nondisclosure order, law enforcement (and prosecutors) will know about the prior arrest and can treat any subsequent offense accordingly. Allowing those accused of driving while intoxicated to clear their case without a conviction, without a license suspension and without the onerous DPS surcharges can move dockets -- if judicial economy is what we're really concerned about.

Judges to receive ignition interlock "training"

The Texas Center for the Judiciary is offering an ignition interlock device workshop for Texas judges entitled "Blow 'n' Go" in May up in Dallas. The workshop is funded by a grant from the Texas Department of Transportation to "increase the effectiveness of DWI adjudications in Texas."

MADD is listed as one of the Texas Department of Transportation's Traffic Safety Program Partners according to the Texas Center for the Judiciary's website.

According to the Texas Department of Transportation's Traffic Safety Goals for 2010, traffic safety grants are to be used "to improve adjudication of DWI cases through improved training for judges, administrative license revocation judges, and prosecutors, and improved support materials for judges and prosecutors." In other words, the grant money is to be used to align judges and prosecutors on the same side of the fence. And, here all this time I thought the judiciary and the executive branches were supposed to be separate.

"Reluctant to rely on breath testing devices as a supervision tool?"

"Have you heard lots of plausible excuses from defendants to to why the device failed?"

"This practical workshop covers ignition interlock laws, separates fact from fiction, and dispels urban myths." 

-- promo material for Blow 'n' Go

Warren Diepraam, late of the Harris County DA's Office (now with the Montgomery County DA's Office) will present a lecture on the law regarding ignition interlock devices. According to the promotional materials "ignition interlocks have emerged as a powerful tool in keeping DWI offenders from driving drunk." Mr. Diepraam will instruct the judges as to the law and "the politics behind Texas interlock statutes."

Four manufacturers (Smart Start, Draeger, Guardian, and LifeSafer) will then present a panel discussion about their products, services, support materials and how they work with offenders. I'm sure the presentation will include discussions on error rates, calibration problems and false postive readings.

The judges will then learn how to draft the "perfect order" once they have decided the interlock device is appropriate in a particular case.

At lunch the judges will hear from the Texas Transportation Institute about their recent ignition interlock survey and will have the opportunity "to conduct personal 'field' research on some of the urban myths relating to ways to defeat interlock and breath-testing devices."

The judges will then hear how Denton County "created a system to efficiently deal with DWI ignition interlock compliance and monitoring" from arrest to termination of probation. 

The judges will also learn how to conduct a Kelly/Daubert hearing after a lock-out (occurs when the device detects alcohol in the driver's breath and locks the ignition) to determine if the ignition interlock operates on junk science or not.

Nowhere during the seminar is there a presentation from a defense attorney, nowhere is there a presentation questioning the accuracy and reliability of the ignition interlock device and nowhere is there any balancing viewpoint. If this were a workshop for prosecutors I would understand -- after all, we don't invite prosecutors to present at defense seminars -- but the judiciary is supposed to be neutral.

Is there anyone else out there troubled by this?