What’s wrong with Greg Abbott?
“the Texas Supreme Court handed down an extraordinary order saving Robert Roberson from execution — but potentially not for very long.
Roberson was convicted in 2003 of murdering his daughter on the theory that she died of “shaken baby syndrome.” However, in an extraordinary turn of events, it now appears likely that Roberson is innocent. Not only that, but it is far from clear that his daughter was even a victim of murder in the first place.
One reason to doubt the conviction is that modern science looks at shaken baby syndrome with increasing skepticism. More importantly, however, the evidence in Roberson’s case suggests that his poor girl actually died from a combination of pneumonia and medications that should never have been prescribed to such a young patient, and that the injuries that a 2003 jury attributed to child abuse may have resulted from a surgery.
Another reason why the order in In re Texas House of Representatives is so extraordinary is that it involves what may be an unprecedented conflict between the state’s legislature and its governor. Texas Gov. Greg Abbott (R) has the power to issue a 30-day pause on Roberson’s execution (although not to grant him permanent clemency) but has thus far refused to do so”
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“a bipartisan group of state lawmakers issued a subpoena seeking Roberson’s testimony before a committee of the state’s House of Representatives. This hearing isn’t scheduled until Monday, and Roberson obviously could not comply with this subpoena if he had been killed Thursday night.
So Roberson’s case raises what may be a unique separation of powers issue under the Texas Constitution: Can Texas’s executive branch of government carry out an otherwise lawful execution if doing so would prevent its legislative branch from hearing testimony from a witness it has already subpoenaed?”
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“The striking thing about this case, however, is that virtually everyone who has touched it wants Roberson to live except for the few people in Texas’s government (the Court of Criminal Appeals, the pardon board, and Abbott) who actually have the power to save him.”
https://www.vox.com/criminal-justice/378717/robert-roberson-execution-death-penalty-texas-supreme-court
“Witnesses reported that Smith was strapped to a gurney with a gas mask affixed to his face. Smith remained conscious for several minutes after nitrogen began flowing into the mask, and he appeared to be holding his breath for as long as possible. He “struggled against his restraints” and “shook and writhed on a gurney.” Witnesses additionally reported that Smith eventually began breathing deeply, before his breathing slowed and finally stopped. He was pronounced dead at 8:25—about 15 minutes after prison officials began the flow of nitrogen.
“There was some involuntary movement and some agonal breathing, so that was all expected and is in the side effects that we’ve seen and researched on nitrogen hypoxia,” John Hamm, the Alabama Department of Corrections Commissioner, said in a press conference Thursday night. “So nothing was out of the ordinary of what we were expecting.”
While prison officials were cavalier about Smith’s execution, others who witnessed his death were not so relaxed about the apparently grisly process.
The execution was “the most horrible thing I’ve ever seen,” the Rev. Jeff Hood, Smith’s spiritual adviser, told CNN. “An unbelievable evil was unleashed tonight.””
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“Smith’s first attempted execution was part of a series of botched executions carried out by Alabama, which led Gov. Kay Ivey to place a moratorium on executions in November 2022. However, she lifted the pause in February 2023, following an opaque internal investigation.”
https://reason.com/2024/01/26/the-most-horrible-thing-ive-ever-seen-alabama-executes-inmate-with-experimental-method/
“Oklahoma’s attorney general has filed a motion to overturn the capital murder conviction of Richard Glossip, who has spent almost 26 years on death row. The move comes after the release of a new report detailing considerable issues in the state’s case against Glossip, concluding that he was “deprived of a fair trial.””
“Republican Florida Gov. Ron DeSantis floated two unconstitutional proposals that would lead to the US executing more people.
The first, which he suggested during an appearance before the Florida Sheriffs Association, was to allow juries to sentence someone to die even if the jury vote is not unanimous. “Fine, have a supermajority,” DeSantis said, adding that executions should be permitted if “maybe eight out of 12 or something” of a jury’s members vote for the death penalty.
The Supreme Court held in Ramos v. Louisiana (2020) that a jury must vote unanimously in order to convict someone of a “serious offense.” Meanwhile, the Court held in Hurst v. Florida (2016) that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Read together, the cases leave little doubt that a jury’s decision to sentence someone to die must also be unanimous. (There is always some risk that the Court’s current majority will refuse to follow Ramos or Hurst, but neither of these cases divided the Court along ideological lines when they were decided.)
A few days after offering this first half-baked proposal, DeSantis spoke at the Miami Police Benevolent Association hall, where he not only reiterated that idea, but also laid out a broader agenda on crime that included expanding the death penalty to offenders who rape children. The Supreme Court explicitly rejected this expansion of the death penalty in Kennedy v. Louisiana (2008). Among other things, Kennedy warned that, if sexual assault of a child carried the same penalty as murder, that would endanger children because “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.””
“The good news for opponents of the death penalty is that its use in the United States continued to decline in 2022. The bad news is that many of the executions that did take place appear to have been botched by officials who subjected prisoners to cruel torment.
Those are the main takeaways from the Death Penalty Information Center’s (DPIC) annual year-end report. It shows that American states are increasingly turning away from executions, but that in those states where capital punishment still happens, there’s been a turn toward cruelty and secrecy in the relevant government agencies.”
“Alabama Governor Kay Ivey (R) announced that she was seeking a moratorium on executions in the state, following the third botched lethal injection execution in recent months. While Ivey is still a stringent supporter of the state’s death penalty, this pause in executions will likely continue until an internal investigation into the state’s practices is concluded.”
“no sensible jury confronted with all of this evidence would have concluded that Jones was guilty beyond a reasonable doubt.
But Jones’s lawyers failed to present crucial evidence at his trial.”
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“Then, after Jones challenged his conviction in a state court proceeding, he was met with, as Sotomayor put it, “another egregious failure of counsel.”
In the words of the law, Jones was denied his constitutionally required right to effective assistance of counsel — twice.
Sotomayor, however, wrote these words in a dissenting opinion. On a party line vote in Shinn v. Ramirez, the Court held that Jones will not receive a fair trial despite his lawyers’ poor performance.”
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“Justice Clarence Thomas’s majority opinion claimed that a law restricting the power of federal courts to toss out convictions in state courts prevents Jones from seeking relief. But Thomas’s reading of this law is novel — his opinion had to gut two fairly recent Supreme Court decisions to deny relief to Jones.”
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“Before Monday, the Supreme Court’s decisions in Martinez v. Ryan (2012) and Trevino v. Thaler (2013) should have guaranteed Jones a new trial. Both decisions deal with what should happen in the unusual circumstance when someone accused of a crime receives ineffective assistance of counsel, twice.”
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“If a state fails to provide convicted individuals with a way to challenge their conviction on ineffective assistance grounds, federal courts may step in and provide a forum to hear this challenge in what is known as a “habeas” proceeding. Martinez, moreover, established that federal courts may step in when a criminal defendant receives inadequate assistance of counsel both at their trial and in a state proceeding permitting them to challenge their conviction.
Both a federal trial court and an appeals court determined that this is exactly what happened to Jones — that is, neither his state trial attorneys nor the lawyers who represented him in his postconviction challenge adequately investigated his case. And, without seeing all the evidence suggesting that Jones is innocent, the state court judge presiding over this postconviction proceeding had no way to know that Jones’s conviction should be tossed out.
The federal trial court held its own evidentiary hearing, considered the evidence against Jones and the evidence that his lawyers botched his case, and ordered the state of Arizona to give him a new trial.”
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“[The] decision in Ramirez does not explicitly abandon Martinez and Trevino, but, as Sotomayor explains in dissent, “the Court all but overrules” these two decisions “that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court.”
Under Justice Thomas’s majority opinion, federal courts may still conduct habeas proceedings when a criminal defendant alleges that they received inadequate assistance of counsel twice, but the federal court may not consider any evidence that wasn’t presented in earlier proceedings. As Thomas writes, “if a prisoner has ‘failed to develop the factual basis of a claim in State court proceedings,’ a federal court ‘shall not hold an evidentiary hearing on the claim’ unless the prisoner satisfies one of two narrow exceptions” that are not present in Jones’s case.
The problem with this rule should be obvious. The whole point of Jones’s federal case is that his state court lawyers performed so poorly that they failed to uncover evidence that should have exonerated him. If a federal habeas court may only consider evidence that was presented by feckless lawyers to state courts, then there is no point in having a federal habeas proceeding in the first place.”
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“in Sotomayor’s mind, and in the minds of the two other justices appointed by Democratic presidents who joined her opinion, the purpose of a criminal trial is to determine whether or not someone is actually guilty of a crime — and to do so through an adversarial process where both sides are represented by lawyers who can present the best possible legal and factual case for the prosecution and the defense.
Thomas, writing for the Court’s Republican majority, offers a different view of why trials exist. He deems federal habeas proceedings problematic because they “override[] the States’ core power to enforce criminal law.” When a federal court deems someone’s conviction constitutionally inadequate, Thomas complains, it “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.”
Thus, in Thomas’s view, the purpose of a state-conducted trial is to give criminal defendants a procedure in state court. But once that process is concluded, the state court’s decision generally should remain final — even if that means executing an innocent person or condemning someone in violation of the Constitution.”
“The upshot of the Court’s 5-4 decision in Hamm is that a man was executed using a method that may have caused him excruciating pain, most likely because that man’s disability prevented him from understanding how to opt in to a less painful method of execution.
There is significant evidence that Matthew Reeves, a man convicted of murder that the state of Alabama executed after the Supreme Court permitted it to do so on Thursday, had an intellectual disability. Among other things, as Justice Sonia Sotomayor noted in a 2021 dissenting opinion, an expert employed by the state gave Reeves an IQ test and determined that “Reeves’ IQ was well within the range for intellectual disability.”
The Supreme Court held in Atkins v. Virginia (2002) that “death is not a suitable punishment” for someone with an intellectual disability. Nevertheless, in its 2021 decision in Dunn v. Reeves, the Supreme Court voted along party lines to effectively prevent Reeves from avoiding execution.
The issue in Hamm, the decision that the Court handed down Thursday night, is quite narrow. After Dunn, it was no longer a question of whether Alabama could execute Reeves. The only question was how Alabama could conduct this execution — and whether the state was allowed to use a method that may very well amount to torture, even over Reeves’s objection.
This time the Court split 5-4, with Justice Amy Coney Barrett crossing over to vote with the three liberal justices. But, in a Court with a 6-3 Republican supermajority, Barrett’s vote was not enough to save Reeves from the fate that Alabama chose for him. He was executed by lethal injection.”
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“Many states used to use a three-drug combination to execute people on death row. First, the inmate would be injected with sodium thiopental, an anesthetic that was supposed to prevent the inmate from feeling the effects of the drugs that would kill them. The inmate would then be injected with a paralytic drug, and finally with a lethal drug that would stop their heart.
But supplies of sodium thiopental dried up, at least for executioners, around 2010 — in part because pharmaceutical companies refused to sell the drug for use in executions, and in part because the European Union forbids companies from exporting drugs for such a purpose. As a result, some states turned to less reliable sedatives.
The result was botched executions, where inmates were visibly in excruciating pain during their executions. As Sotomayor wrote in a 2015 dissenting opinion, these unreliable execution drugs leave death row inmates “exposed to what may well be the chemical equivalent of being burned at the stake.””
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“Neil Gorsuch wrote for the Court in Bucklew v. Precythe (2019), “a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.””
“Trump is the first president in 17 years to reinstate federal executions”
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“In addition to pushing through federal executions over the past five months, the Justice Department published a new rule to the Federal Register on Friday that would allow the use of other methods for capital punishment. The new regulation reintroduces the use of firing squads and electrocutions for federal executions in addition to lethal injections.”
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“only three people had been executed by the federal government in the past 50 years. Meanwhile, in less than five months, eight people have already been put to death by Trump’s Justice Department, with five more executions scheduled to happen before Trump leaves office.”
“Prior to 2020, the last federal death row inmate to be executed was Louis Jones Jr., put to death by lethal injection in 2003. Only three federal prisoners were executed under GOP President George W. Bush, among them Oklahoma City bomber Timothy McVeigh. None were executed under Democratic President Barack Obama.
Seventeen years after Jones’ execution, on July 14, the United States government executed Daniel Lewis Lee. Just two days later, the feds executed Wesley Ira Purkey. The next day, the feds executed Dustin Lee Honken. On August 26, they executed Lezmond Mitchell. The Trump administration has now executed more death row inmates than any president since Dwight Eisenhower.”
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“When Barr made his announcement, he said that the Justice Department and the federal government “owe it to their victims and their families to carry forward the sentence imposed by our justice system.”
But in Lee’s case, the family of the victims had opposed his execution for years.”
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“Barr’s move is a significant reversal of a broad trend away from capital punishment. State-level executions have been on the decline since 2000. Since 1973, 170 inmates on death row have been exonerated, according to the Death Penalty Information Center. Three have been freed just this year. There’s a very real possibility that if federal executions continue, Barr will be sending innocent men to their deaths.”