The Mercy Workers

Melanie Garcia

The Marshall Project

Originally published 2 March 2023

Here are two excerpts:

Like her more famous anti-death penalty peers, such as Bryan Stevenson and Sister Helen Prejean, Baldwin argues the idea that people should be judged on more than their worst actions. But she also speaks in more spiritual terms about the value of unearthing her clients’ lives. “We look through a more merciful lens,” she told me, describing her role as that of a “witness who knows and understands, without condemning.” This work, she believes, can have a healing effect on the client, the people they hurt, and even society as a whole. “The horrible thing to see is the crime,” she said. “We’re saying, ‘Please, please, look past that, there’s a person here, and there’s more to it than you think.’”

The United States has inherited competing impulses: It’s “an eye for an eye,” but also “blessed are the merciful.” Some Americans believe that our criminal justice system — rife with excessively long sentences, appalling prison conditions and racial disparities — fails to make us safer. And yet, tell the story of a violent crime and a punishment that sounds insufficient, and you’re guaranteed to get eyerolls.

In the midst of that impasse, I’ve come to see mitigation specialists like Baldwin as ambassadors from a future where we think more richly about violence. For the last few decades, they have documented the traumas, policy failures, family dynamics and individual choices that shape the lives of people who kill. Leaders in the field say it’s impossible to accurately count mitigation specialists — there is no formal license — but there may be fewer than 1,000. They’ve actively avoided media attention, and yet the stories they uncover occasionally emerge in Hollywood scripts and Supreme Court opinions. Over three decades, mitigation specialists have helped drive down death sentences from more than 300 annually in the mid-1990s to fewer than 30 in recent years.

(cut)

The term “mitigation specialist” is often credited to Scharlette Holdman, a brash Southern human rights activist famous for her personal devotion to her clients. The so-called Unabomber, Ted Kaczynski, tried to deed his cabin to her. (The federal government stopped him.) Her last client was accused 9/11 plotter Khalid Shaikh Mohammad. While working his case, Holdman converted to Islam and made a pilgrimage to Mecca. She died in 2017 and had a Muslim burial.

Holdman began a crusade to stop executions in Florida in the 1970s, during a unique moment of American ambivalence towards the punishment. After two centuries of hangings, firing squads and electrocutions, the Supreme Court struck down the death penalty in 1972. The court found that there was no logic guiding which prisoners were executed and which were spared.

The justices eventually let executions resume, but declared, in the 1976 case of Woodson v. North Carolina, that jurors must be able to look at prisoners as individuals and consider “compassionate or mitigating factors stemming from the diverse frailties of humankind.”

The article is here.

The death penalty: The past and uncertain future of executions in America

C. Geidner, J. Lambert & K. Philo

Grid News

Originally posted 28 APR 22

Overview

South Carolina may soon carry out the United States’ first executions by firing squad in more than a decade. State officials have said that they plan to execute Richard Moore and Brad Sigmon using guns, the first such use of a firing squad since Ronnie Gardner was shot to death by the state of Utah on June 18, 2010.

Last week, nine days before Moore was to be executed, South Carolina’s Supreme Court put the execution on hold, but there’s no way of knowing how long that will last. Days later, the court also put Sigmon’s execution — scheduled for May — on hold. Although the court did not explain its reasoning, both men have an ongoing challenge to the state’s execution protocol, including its planned use of a firing squad.

How did we get here?

More than 45 years after the Supreme Court allowed executions to resume in the United States after a four-year hiatus, America is in a monthlong period in which five states planned to carry out six executions — the most in several years.

The situation offers a window into changing attitudes toward the death penalty and the complex brew of factors that have made these executions harder to carry out but also harder to challenge in courts. And the individual stories behind some of these current cases serve as a reminder of the well-documented racial bias in the way death sentences are handed down.

The death penalty’s popularity with the public has diminished in recent decades, and the overall number of new death sentences and executions has dropped significantly.

That’s due in part to the increased difficulty of carrying out lethal injection executions after death penalty opponents made it substantially harder for states to obtain the necessary drugs. States responded in part by adopting untried drug combinations. A series of botched executions followed — including the longest execution in U.S. history, when Arizona spent nearly two hours trying to kill Joseph Wood by using 15 doses of its execution drugs on the man before he died.

During that same time, the Supreme Court has made it more difficult to challenge any method of execution, setting a high bar for a method to be disallowed and by requiring challengers to identify an alternative method of execution.

Robert Dunham, the executive director of the Death Penalty Information Center, a nonpartisan organization that maintains a comprehensive database of U.S. executions, told Grid that part of the current influx of execution dates is a result of most states halting executions during the first year of the pandemic, before a covid vaccine was available.

This past week, Texas carried out its first execution of the year when it executed 78-year-old Carl Buntion. Tennessee also had planned an execution for last week, but it was called off with an announcement that highlighted two key elements of the modern death penalty: secrecy and errors. Hours before the state was slated to execute Oscar Franklin Smith by lethal injection, Gov. Bill Lee (R), citing “an oversight in preparation for lethal injection,” announced a reprieve. The execution will not happen before June, but state officials have not yet said anything more about what led to the last-minute reprieve.

The info is here.

Catholics' involvement in death penalty killing spree is scandalous

James Keenan & William Montross, Jr.

National Catholic Reporter

Originally published 11 DEC 20

Here is an excerpt:

Study after study demonstrates that the death penalty is infected with racial bias; the federal death penalty is no different. Indeed, in 1994, a mere six years after the implementation of the "modern" federal death penalty, the racial disparities compelled a congressional committee to conclude, "On the federal level, cases selected have almost exclusively involved minority defendants."

We are witnessing this Advent a modern-day lynching.

Each of the defendants in these cases was involved in crimes that resulted in the deaths of others. Some of the crimes were gruesome. But who these people are warrant a closer look.

Bernard was a teenager when he was an accomplice to the murder of a young couple, both youth ministers, on the Fort Hood military reservation in Texas. He did not fire the killing shots — a co-defendant, also sentenced to death and subsequently executed — did.

Bernard, a young black man, was tried in Texas before a jury in which all but one juror was white. His attorneys did not even make an opening statement at his trial and during the penalty phase — where the jury chooses between life and death — the same attorneys offered no witnesses on his behalf.

One of the federal prosecutors who earlier secured Bernard's death sentence later sought to have his life spared. Angela Moore writes that her subsequent "experience with teenagers who have committed violent crimes, especially boys of color, has taught me much about the recklessness and fragility of adolescents, as well as their ability to mature and change."

She also finds "another troubling fact revealed by recent research is that people tend to view Black boys — like Brandon — as more blameworthy than their white counterparts" and that "Black teens like Brandon are systematically denied the 'benefit' of their youth, which is outweighed by their race in the eyes of police, prosecutors, judges and jurors."

The info is here.

Record-Low 54% in U.S. Say Death Penalty Morally Acceptable

Megan Brenan
gallup.com
Originally posted 23 June 20

A record-low 54% of Americans consider the death penalty to be morally acceptable, marking a six-percentage-point decrease since last year. This finding, from Gallup's May 1-13 Values and Beliefs poll, is in line with polling last fall that showed decreased public support for the death penalty and a record-high preference for life imprisonment over the death penalty as a better punishment for murder.

Gallup has measured Americans' beliefs about the moral acceptability of the death penalty and numerous other social issues each May since 2001.

This year, 40% of U.S. adults think the death penalty is morally wrong, the highest in Gallup's 20-year trend. The high point in the public's belief that the death penalty is morally acceptable, 71%, was in 2006. That year and again in 2007, it topped the list of issues rated for moral acceptability.

The latest decrease in the public's tolerance for the death penalty is largely owed to political liberals and moderates. While two-thirds of conservatives still consider it to be morally acceptable, moderates (56%) and liberals (37%) are at their lowest levels since 2001.

The info is here.

And, oddly enough, smoking marijuana is more morally acceptable (by a small percent) than gay or lesbian relationships.

Gov. Newsom to order halt to California’s death penalty

Bob Egelko and Alexei Koseff
San Francisco Chronicle
Originally posted March 12, 2019

Gov. Gavin Newsom is suspending the death penalty in California, calling it discriminatory and immoral, and is granting reprieves to the 737 condemned inmates on the nation’s largest Death Row.

“I do not believe that a civilized society can claim to be a leader in the world as long as its government continues to sanction the premeditated and discriminatory execution of its people,” Newsom said in a statement accompanying an executive order, to be issued Wednesday, declaring a moratorium on capital punishment in the state. “The death penalty is inconsistent with our bedrock values and strikes at the very heart of what it means to be a Californian.”

He plans to order an immediate shutdown of the death chamber at San Quentin State Prison, where the last execution was carried out in 2006. Newsom is also withdrawing California’s recently revised procedures for executions by lethal injection, ending — at least for now — the struggle by prison officials for more than a decade to devise procedures that would pass muster in federal court by minimizing the risk of a botched and painful execution.

The info is here.

An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty

Michael L. Perlin, Talia Roitberg Harmon, & Sarah Chatt
Social Science Research Network 
http://dx.doi.org/10.2139/ssrn.3332730

Abstract

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation. Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled—either by serious mental illness or by intellectual disability. Some of the decisions in these cases—rejecting Strickland-based appeals—have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has—prior to this article—undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities. We do this here. In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland). As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way. First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.” Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

Have some evangelicals embraced moral relativism?

Corey Fields
Baptist News Global
Originally posted February 16, 2018

Here is an excerpt:

The moral rot we’re seeing among white evangelicals has been hard to watch, and it did not start in 2016. Back in 2009, an article in the evangelical publication Christianity Today bemoaned a survey finding that 62 percent of white evangelicals support the use of torture. Despite a supposed pro-life stance, white evangelicals are also the most likely religious group to support war and the death penalty. Racism and sexual predation among elected officials are getting a pass if they deliver on policy. Charles Mathewes, a professor of religious studies at the University of Virginia, put it well: “For believers in a religion whose Scriptures teach compassion, we [white evangelicals] are a breathtakingly cruel bunch.”

Here’s a quote from a prominent evangelical author: “As it turns out, character does matter. You can’t run a family, let alone a country, without it. How foolish to believe that a person who lacks honesty and moral integrity is qualified to lead a nation and the world!” That was written by James Dobson of Focus on the Family. But he wasn’t talking about Donald Trump. He wrote that about Bill Clinton in 1998. Is this principle no longer in force, or does it only apply to Democrats?

As Robert P. Jones noted, the ends apparently justify the means. “White evangelicals have now fully embraced a consequentialist ethics that works backward from predetermined political ends, refashioning or even discarding principles as needed to achieve a desired outcome.” That’s moral relativism.

The article is here.

The Moral Fabric and Social Norms

AEI Political Report
Volume 14, Issue 1
January 2018

A large majority now, as in the past, say moral values in the country are getting worse. Social conservatives, moderates, and liberals agree. At the same time, however, as these pages show, people accept some behaviors once thought wrong. Later in this issue, we look at polls on women’s experiences with sexual harassment, a topic which has drawn public scrutiny following recent allegations of misconduct against high profile individuals.

Q: Right now, do you think . . . ?

The rest of the statistics and information is here.

Supreme Court to Consider Legal Standard Drawn From ‘Of Mice and Men’

Adam Liptak
The New York Times
Originally published August 22, 2016

Here is an excerpt:

Under medical standards from 1992, endorsed in Judge Cochran’s 2004 opinion, Mr. Moore was not intellectually disabled, the appeals court said. The court added that the seven factors listed in the 2004 opinion weighed heavily against Mr. Moore. He had, for instance, worn a wig during the robbery and tried to hide his shotgun in two plastic bags, which prosecutors said was evidence of forethought and planning.

In dissent, Judge Elsa Alcala said the 1992 medical standards used by the majority were “outdated and erroneous.” As for the seven factors, she wrote that “the Lennie standard does not meet the requirements of the federal Constitution.”

“I would set forth a standard,” Judge Alcala wrote, “that does not include any reference to a fictional character.”

The article is here.

Arizona again tries to illegally import execution drug

By Michael Kiefer
The Arizona Republic
Originally published October 23, 2015

The Arizona Department of Corrections paid nearly $27,000 to import from overseas an illegal drug for executions by lethal injection, but federal officials stopped the shipment at the airport.

According to heavily redacted documents obtained by The Arizona Republic, the Corrections Department contracted to purchase 1,000 vials of the anesthetic sodium thiopental. And although the seller's name and information are blacked out on the documents, an offer to sell the drug to Arizona is virtually identical to an unredacted offer sent to corrections officials in Nebraska from a pharmaceutical supplier in India.

The article is here.

Law and Ethics

Richard Marshall interviews Matthew Kramer
3:AM Magazine
Originally published on August 22, 2015

Here is an excerpt:

3:AM: If capital punishment is a central contemporary issue so is the use of torture. Why do you argue that torture is always wrong?

MK: There is no single answer to that question, because there are many different types of torture, and the explanation of the wrongness of torture is not uniform across those types. (When I refer to the sundry types of torture, I am not differentiating among them on the basis of the techniques employed; rather, I am differentiating among them with regard to the chief purposes for which torture is undertaken.) Let me say a bit here about the most frequently discussed type, interrogational torture. My 2014 book Torture and Moral Integrity maintains that such torture is always and everywhere morally wrong. The gravity of the wrong varies, but the wrongness itself does not. Hence, it should be apparent that that book is as robustly deontological as any of my previous volumes. (“Robustly deontological” is definitely not equivalent to “robustly Kantian.” My book on torture contains numerous objections to Kantianism as well as to consequentialism.)

Interrogational torture involves the deliberate infliction of severe pain for the purpose of extracting information from someone (either from the person on whom the pain is directly inflicted or from someone who is likely to care deeply about that person). The deliberate infliction of severe pain for that purpose is always morally wrong because of the overweeningness of the control exerted both through the infliction itself and through the aim which it is undertaken to achieve. The overweeningness of the control exerted by the infliction itself has been brought out especially incisively in recent years by David Sussman, and the overweeningness of the aim pursued has been brought out especially incisively in recent years by David Luban. Hence, I draw upon their writings as well as those of many other philosophers in my ruminations on torture.

The entire interview is here.

Do we still need to study the death penalty?

By Ryan J. Winter
The Monitor on Psychology
2015, Vol 46, No. 7
Print version: page 32

Recent Gallup polling shows support for the death penalty in the United States is at a 40-year low, with the 63 percent favorability rating a stark contrast to the 80 percent who supported it in the 1990s.1 When comparing death to life in prison, death favorability drops to 42 percent.2 Meanwhile, the number of death verdicts has also dropped, with only 73 defendants sentenced to death and 35 executed in 2014. Contrast this with 279 sentences and 98 executions in 1999.3 Of 32 death penalty states, only seven carried out executions in 2014, the fewest in 25 years. Further, eight states have abolished the death penalty since 2007, and no states have added the penalty.

As its reign appears to be over, there's no need to continue studying the death penalty, right?
Not so fast. Focusing on the malicious actions of Boston Marathon bomber Dzhokhar Tsarnaev, prosecutors and defense attorneys seemingly set aside all pretenses about his guilt to focus on the only trial phase worth attention: whether he deserved death. Half a country away, James Holmes — the Aurora, Colorado, movie theater shooter — began his trial with a prosecution equally zealous in pursuing death.

The entire article is here.

Belgian rapist Frank Van Den Bleeken 'to be euthanised' in prison this week

By Roisin O'Connor
The Independent
Originally posted January 5, 2015

A convicted murderer and rapist who won the right to end his life rather than endure 'unbearable suffering' in prison will be euthanised on 11 January.

Granted the right to die under Belgium’s liberal euthanasia laws in September, Frank Van Den Bleeken claimed he could not face the rest of his life in jail and argued that he would never be able to overcome his violent sexual impulses.

The entire article is here.