Convicted murderer Lawrence Reynolds now has until next Tuesday to recover from an apparent suicide attempt before Ohio state officials carry out his death sentence.

When Reynolds was found unconscious in his cell over the weekend, the state faced a predicament: save the inmate scheduled to undergo lethal injection in a matter of days at taxpayer expense, or let him die. The state chose the former option, and has rescheduled his execution, which was previously planned for today.

"We have a constitutional duty to provide health care for this inmate until the execution commences," said a spokesperson for the Ohio Department of Rehabilitation and Correction. "And we are legally responsible to carry out executions under the law. We will meet both our legal obligations."

Reynolds' execution was initially scheduled for last October, following that of inmate Romell Broom. Officials badly botched Broom's execution, however, failing to find a functional vein in either of the former intravenous drug-user's arms. The attempts to execute Broom were terminated by Gov. Ted Strickland after two hours and as many as 18 insertions of a needle which reportedly struck muscle and bone. In response to a temporary reprieve on the execution of Reynolds and another inmate, granted by the U.S. Court of Appeals for the Sixth Circuit, the state then became the first to adopt a one-drug lethal injection protocol. Since then, Washington State has followed suit.

This is the first time an inmate on Ohio's death row has attempted suicide. A full investigation into how Reynolds obtained the drugs on which he attempted to overdose is underway. 

[Image via Wikimedia Commons.]

Since the Supreme Court reinstated capital punishment in the landmark 1976 case of Gregg v Georgia, 1,195 people have been executed in the United States. Texas is often considered the epicenter of the death penalty, accounting for 449 executions. But executions are not evenly distributed across Texas. Harris County - home to Houston - is the true capital of capital punishment. With 112 executions, Harris County has executed about the same number of offenders as all of the other major urban counties in Texas, combined. In fact, if Harris County were a state it would rank second in executions after Texas.

Perhaps not coincidentally, Harris County is also the largest jurisdiction in the nation to use the appointment method of indigent defense - meaning the judge assigns a private defense attorney to the case. Critics have argued that the appointment method is plagued by five problems: (1) flat fee compensation (defense counsel receives a standard fee regardless of the number of hours worked, so each hour of work reduces the rate of compensation and detracts from private clients); (2) the potential for insufficient support services (defense counsel must receive approval from the judge to hire support services such as investigators and experts); (3) a potential conflict of interest for the defense attorney (defense counsel's personal income depends on remaining in the good graces of the judge to secure future appointments); (4) a potential conflict of interest for the judge (the judge must balance the defense counsel's requests for support services with the county commissioner's requests to control the costs of indigent defense; the judge must also consider the possibility that generous spending on indigent defense could hurt his/her chances of re-election); and (5) questionable appointment practices (some evidence suggests that judges occasionally make appointments for inappropriate reasons, such as whether the potential appointee is a friend or campaign contributor).

Despite such serious criticisms, researchers have not answered the most basic questions: Do procedural problems produce differences in case outcomes? Is the district attorney (DA) more likely to seek death against defendants who have appointed counsel? Is the jury more likely to impose death against defendants who have appointed counsel? Put differently, is the appointment method merely procedurally flawed or truly a matter of life and death?

To answer such questions, I examined the 504 cases indicted for capital murder in Harris County from 1992 to 1999. The findings suggest that defendants who must accept court appointed counsel are disadvantaged. The DA sought death against 101 of the 369 defendants with appointed counsel, compared to just 1 of the 31 defendants with hired counsel. Of the 101 defendants with appointed counsel who advanced to a death penalty trial, 83 were sentenced to death. The lone defendant with hired counsel who advanced to a death penalty trial was acquitted. Between such extremes are cases with mixed counsel - meaning the defendant had hired and appointed counsel during different stages of the case. Here, the DA sought death against 27 of the 104 defendants with mixed counsel, and 15 of them were sentenced to death. Combining the two stages of the process reveals the following: 0 percent of defendants with hired counsel were sentenced to death (0 of 31); 14 percent of defendants with mixed counsel were sentenced to death (15 of 104); and 23 percent of defendants with appointed counsel were sentenced to death (83 of 369). Such patterns are stunning: hiring counsel for the entire case eliminates the chance of a death sentence, and hiring counsel for a mere portion of the case substantially reduces the chances of a death sentence.

Hiring counsel also dramatically increases the chance of being acquitted. The acquittal rate for defendants who hired counsel for the entire case and were disposed at trial was 30 percent (3 of 10), compared to 1.5 percent (5 of 337) for all other defendants disposed at trial. Remarkably, if the rate for the former group held across the board then the number of acquittals would have catapulted from 8 to 104 (30 percent of 347 = 104). The relationship between hired counsel and acquittals is troubling - it does not seem plausible to conclude that defendants who hired counsel were 20 times more likely to be innocent.

The findings are unequivocal: hiring counsel alters the legal landscape. Does that mean the rich are getting away with murder? No. Examining average income in each defendant's residential neighborhood revealed that virtually all capital murder defendants are poor. The fact that some of the defendants from such poor neighborhoods can hire counsel suggests that others, perhaps relatives and friends, have pooled resources in the hour of need.

What should be done? In September 2009, the Harris County Commissioner's Court voted to create a public defender office. The implementation of the public defender's office is currently under further consideration as the budget process unfolds. The move to establish a public defender in Houston represents genuine progress and is a commendable step in the right direction. But the plan under consideration is a hybrid model: indigent defense would be provided by a mix of public defenders and appointed attorneys.

Rather than taking tentative steps, I argue that Harris County should replace the appointment method with a public defender office that handles all indigent cases. Doing so would eliminate the structural deficiencies inherent in the appointment method and reduce disparities in case outcomes (prior research demonstrates that prosecutors secure death sentences in 0 to 50 percent of cases in jurisdiction with a public defender, compared to 50 to 100 percent of cases in jurisdictions with the appointment method). Houston's distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. Only a top-notch public defender with resources proportionate to the DA can meet such a standard.

Following in the footsteps of Ohio, Washington became the second state to adopt a one-drug protocol for lethal injections. The single-drug method replaces the three-drug combination widely used by states, and upheld by the U.S. Supreme Court in Baze v. Rees.

Washington's decision was made public in filings with the state's high court in the case of convicted murderer Darold Stenson. The state's Attorney General Rob McKenna filed the disclosure, requesting that the court dismiss Stenson's appeal of his death sentence. McKenna argued that Stenson's constitutional claims are rendered moot by the change in protocol.

Though the state seemingly submitted the one-drug method to circumvent Stenson's constitutional claims, the state maintains that the three-drug cocktail is constitutional. In fact, the three-drug method will remain available to death-row inmates in Washington who request it.

Ohio became the first state to adopt the one-drug method of lethal injection after the botched execution of Rommel Broom. In Broom's case, executioners tried for hours to find an accessible vein, prompting Gov. Ted Strickland to call off the execution. Ohio then made the switch to its one-drug injection, which has since been used in carrying out death sentences of three inmates. Ohio is currently on pace to challenge Texas as the state executing the most inmates in 2010.

[Image via Dirty Bunny.]

The majority of Texas counties continue to rely on procedurally flawed method that is failing poor defendants facing the death penalty, according to research published in a new ACS Issue Brief.

University of Denver Sociology and Criminology Professor Scott Phillips studied more than 500 death penalty cases in Harris County, home of Houston, which the author dubs the "capital of capital punishment," and found that a method of employing court-appointed lawyers is riddled with procedural problems.

Phillips writes:

Defendants who hired counsel for the entire case were never sentenced to death. Even defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death than defendants with appointed counsel.

The findings are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies in the appointment method of indigent defense. The system is flawed, not the individuals who work within the system.

Beyond being procedurally flawed, Phillips maintains the method, which is used in 252 of the state's 254 counties, has life and death consequences. He notes that "38 of the 41 defendants executed to date had appointed counsel."

Phillips urges the state to create a "public defender office with resources proportionate to the DA's office." Such an office, he maintains, would "reduce differential treatment and eliminate the structural deficiencies inherent in the appointment method."

The Issue Brief, "Hire A Lawyer, Escape the Death Penalty?" is available here. It is Phillips' second Issue Brief for ACS. He first wrote on racial disparities in capital punishment cases. That Issue Brief is available here.

Does a Texas prosecutor's affair with the trial judge in a capital case violate the defendant's right to a fair trial? That question could face the U.S. Supreme Court if it grants certiorari in the case of Charles Dean Hood, who was sentenced to death in 1990. He only obtained depositions of Judge Verla Sue Holland, who presided over Hood's case and the prosecutor, Thomas S. O'Connell Jr., in 2008. The Texas Court of Criminal Appeals considered Hood's case, but still ruled 6-3 to uphold his execution. 

Hood's appeal to the Supreme Court immediately drew the support of 21 prosecutors and 30 legal ethics experts.

"A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself," the ethics experts wrote to the high court in their amicus brief. "Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative."

Attorney and ACSblog contributor Scott Horton agreed, writing this morning that "Texas is in the process of declaring itself a judicial ethics-free zone."

Writing in The New York Times, Adam Liptak notes that the Supreme Court has demonstrated a willingness to dabble in judicial ethics:

Last year, [the Court] ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

"The probability of actual bias on the part of the judge," Justice Anthony M. Kennedy wrote for the majority, was "too high to be constitutionally tolerable."

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift - a penis made of chocolate.

Concerns for judicial integrity have haunted Texas of late, as suggested by Horton. Just released today is "Hire a Lawyer, Escape the Death Penalty?," an ACS Issue Brief by Professor Scott Phillips. Phillips researched the death penalty's application in Houston and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney. Phillips study reveals that "[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal."

The tale of Todd Cameron Willingham also raised concerns, drawing widespread attention to a case in which many say Texas executed an innocent man. Writing in The New Yorker last fall, David Grann detailed the case against Willingham, who was convicted of killing his young daughters. Prosecutors in Willingham's case relied heavily on what one expert has since called "junk science" considered by either modern evidentiary standards, or those in place at the time of Willingham's prosecution. That case is being considered by a state commission established to investigate allegations of error or misconduct by forensic scientists. 

And questions about judicial ethics have dogged Judge Sharon Keller of the Texas Court of Criminal Appeals. Keller refused attorneys for death row inmate Michael Wayne Richard extra time to file papers on the night of Richard's execution. Keller promptly closed the courthouse doors at 5 p.m., and Richard, prevented from timely filing his papers due to technical difficulties, was executed later that evening. Keller remains the subject of a special prosecution, in which opening arguments recently took place. The court on which Keller sits is Texas' top criminal court, which also reviewed Hood's case and reinstated his death sentence.

[Image via AnEyeForTexas.]

Largely premised on the unanimous Brown v. Board of Education decision, which galvanized the civil rights movement, the U.S. Supreme Court's reputation for protecting minorities' rights is not often challenged. But, according to Harvard Law Professor Michael Klarman, that conventional wisdom
is a myth.

In "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" at SCOTUSblog, Klarman argues that, over the course of its history, the Court has repeatedly proven to be "regressive force on racial issues."

By way of example, Klarman observes: 

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect." After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations. Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans. 

More recently, Klarman notes, the Court ruled that a disparate impact was insufficient to demonstrate a violation of the Equal Protection Clause; a majority applied strict scrutiny and struck down race-based affirmative action policies; rejected an equal protection challenge to the racially imbalanced application of the death penalty; and outlawed efforts to improve or preserve school desegregation.

"In sum, while the last forty years of conservative hegemony on the Court has yielded racially regressive results pretty much across the board, one should not absolve the larger society that the Court serves of responsibility for such outcomes," Klarman concludes. "The Supreme Court mirrors society at least as much as it shapes it. The conservative justices could not have foisted such a regressive racial jurisprudence on the American people without their acquiescence."

[Image via Nebraska Wesleyan University.]

Delaware will resume executions for the first time since 2005, after yesterday's decision by the U.S. Court of Appeals for the Third Circuit.

The unanimous, 47-page opinion stated:

This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court's highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk. Accordingly, we will affirm the District Court's grant of summary judgment for Delaware and dissolve the District Court's stay. [Link added.]

Despite endorsing the state's position, the three-judge panel warned Delaware about its "occasional blitheness" regarding its application of the three-drug protocal used by approximately three dozen states. Without finding qualms rising to the constitutional level, the court did advise Delaware of its "moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

Delaware Attorney General took heart in the opinion, indicating that the state would begin "scheduling executions as appropriate," according to Wilmington's The News Journal. The last inmate executed by the state of Delaware was convicted murder Brian Steckel, whose 2005 execution took far longer than usual and ended with Steckel snorting heavily and undergoing full-body convulsions.

[Image via Marcelo W Ramos. H/T: Sentencing Law and Policy.]

In what may be her first noteworthy opinion for the Supreme Court, Justice Sonia Sotomayor -- a former prosecutor -- assessed whether a defendant's counsel was unconstitutionally ineffective. In Wood v. Allen, a defense attorney failed to further investigate or introduce evidence of the defendant's IQ being significantly below average. Writing for a 7-2 majority, Justice Sotomayor determined, "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not to inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information." Accordingly, the Court upheld the U.S. Court of Appeals for the Eleventh Circuit, which had reinstated Mr. Holly Wood's death sentence.

As detailed in this preview of the case, Wood shot and killed his girlfriend while she slept. During his trial in an Alabama state court, Wood was represented by three lawyers. Of those three attorneys, one had just graduated from law school and was freshly sworn into the bar. It was this lawyer who, assigned to defend Wood during the sentencing phase of the trial, failed to investigate or introduce evidence of Wood's limited mental capacity.

Preliminary testing indicated that Wood's IQ was below 70, which is suggestive of a developmental disability. Without introduction of that mitigating evidence, the jury voted 10-2 to sentence Wood to death by electrocution -- Alabama's statutorily minimum vote for capital punishment.

From Alabama's death row, Wood appealed his sentence, arguing that his counsel was constitutionally ineffective. Joined by Justice Anthony Kennedy, Justice John Paul Stevens dissented today, writing, "The only reasonable factual conclusion I can draw from this record is that counsel's decision [not to investigate or introduce evidence of Wood's sub-par IQ] was the result of inattention and neglect." A seven-justice majority disagreed.

Anti-death penalty advocates united from across the political spectrum this weekend in Louisville, Ky, for the annual conference of the National Coalition to Abolish the Death Penalty (NCADP). The Associated Press's Brett Barrouquere reported from the event that social and fiscal conservatives are increasingly alligning with the movement to end capital punishment.

"Roy Brown seems like a rarity - a conservative who's against the death penalty," wrote Barrouquere. "But to Brown, a state senator and the 2008 Republican nominee for governor of Montana, the philosophy aligns perfectly with conservative ideology."

On its homepage, NCADP cites a number of arguments against the death penalty that could appeal to progressives and conservatives alike, including assertions about its deterrence value, religious arguments, highlighting the execution of innocent people, and the high costs relative to life imprisonment without parole.

The bi-partisan wave of opposition to the death penalty may be part of a larger recognition that tough-on-crime solutions are increasing criminal justice costs without delivering corresponding benefits. Prof. Mark Kleiman, UCLA School of Public Affairs, advocates for an alternative, smart-on-crime approach in his recent book When Brute Force Fails. 

"After four decades of being 'tough on crime,' it's time to get smart instead. We need to be as tough as necessary, but no tougher," Kleiman wrote on ACSblog. "The goal is not to put as many people behind bars as possible, but to make people safer in their homes, workplaces, and neighborhoods."

This goal seems to be one of many uniting capital punishment foes, despite ideological boundaries.

[Image via Haggerty Museum.]

Executions rose last year and may rise again in 2010, as some states attempt to resume lethal injections.

California became the latest state to reformulate their execution procedures this morning after a four-year moratorium ordered by a federal court. In light of evidence that inmates were suffering extreme pain during the application of California's three-drug cocktail, Judge Jeremy Fogel ordered California to submit new procedures for judicial consideration. Those proposals were released today, spanning 25 pages.

In an attempt to overcome related concerns with the three-drug injection, Ohio became the first state ever to execute a prisoner with one drug last month. The precedent has yet to persuade any other state, though concerns with the three-drug injection are not new.

Such concerns led to a standstill on death rows across the country during the winter of 2007-08, as states awaited the Supreme Court's consideration of Baze v. Rees. There, the justices considered a challenge to the widely employed three-drug protocal brought by two Kentucky inmates. The Court, however, sided with the state in a 7-2 opinion announced in April, 2008. Many states followed Kentucky's lead in resuming executions.

While executions were higher in 2009 than in the previous year, death sentences were down, according to a new report that The New York Times read as indicating jurors' increasing distaste for executions. The death penalty also proved unpopular among members of the esteemed American Law Institute (ALI), which produces the Model Penal Code. This fall, the ALI abandoned its decades-old endorsement of capital punishment as "unworkable."