Thursday, November 19, 2009

Ohio's New Lethal Injection Policy

With the debate continuing regarding the cruelty and potential unconstitutionality of the current lethal injection procedure (a 3 drug “cocktail”), Ohio has become the first state to switch from the controversial “cocktail” to a single drug. Although state officials state that this change has little to nothing to do with the national debate, Ohio’s action may persuade other states to follow suit.

According to officials, this change in procedure is due to a failed effort in September to execute an inmate. The new procedure will call for the injection of anesthetic into the veins of the prisoner in an amount that should kill the person. If this does not work, or the veins of the inmate (as in the case of the failed execution in September) make the injection of anesthetic unsuitable, two drugs will then be injected directly into the prisoner’s muscles.

Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, has stated that “We figure we’re going to get sued whatever we do with the death penalty.” However, he claims that the new procedure, including the backup method, will be one that works. Additionally, by remaining with an intravenous method as the primary manner and switching to a single drug makes litigation and opposition from death penalty opponents less likely.

By retaining the intravenous method, Ohio officials are also implicitly saying that they don’t feel this method is cruel or unconstitutional. However, Ohio is one of few states that has a law which explicitly guarantees prisoners a quick and painless death; the use of the three drug “cocktail” did not always ensure such results as it had the potential to cause excruciating pain.

The United States Supreme Court has previously ruled that execution procedures similar to those previously used in Ohio were constitutional, as the method employed is not required to avoid all risk of pain. It is specifically Ohio law that “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful” which has helped lead to this change. As such, other states may not so readily follow Ohio’s lead in changing their death penalty procedures.

Still, change needs to start somewhere. With Ohio acting as a guinea pig for change, other states may eventually be encouraged to follow based on the success or failure Ohio has with these new procedures. Other states will be able to tinker with their procedures based on the results in Ohio in order to arrive at the most efficient and least cruel methods for execution. So, while changes nationwide may not occur overnight, hopefully Ohio’s first step towards reform will cause other states to rethink their procedures over time.

For the full article from the New York Times, click here.

Thursday, November 12, 2009

Life Imprisonment Without Parole for Minors

On Monday, the United States Supreme Court heard arguments about whether sentencing minors to lifetime imprisonment without the possibility of parole violates the 8th Amendment to the United States Constitution. Two men who were convicted in Florida as minors argued that such a punishment is cruel and unusual.

Attorneys, in response to Justice Roberts’ inquiry as to where the 8th Amendment distinguishes based on age, argued that the Court in 2005 ruled it unconstitutional for any person under the age of 18 to be executed under the death penalty. Roberts seemed unconvinced however, answering that “death is different”. Still, those claiming violations of the 8th Amendment argued that the 2005 ruling not only ruled that “death is different”, but that minors are different as well.

Justice Kennedy echoed Justice Roberts concern in asking, “Why does a juvenile have a constitutional right to hope, but an adult does not?" To this, attorneys claimed that minors are not yet fully developed, and that they still have a chance to reform. Attorneys claimed that these minors should not be held to the same level of culpability as adults.

Justices Antonin Scalia and Samuel A. Alito Jr., moving past the distinguishing characteristics of minors, claimed that this punishment was about retribution for serious crimes. Whether these crimes are perpetrated by adults or minors, the Justices claimed that society has a right to justice. Justice Alito went on to recall a number of offenses committed by minors that were "so horrible that [he] couldn't have imagined them if [he] hadn't actually seen them." He claims that such crimes should not be excused or the seriousness diminished, as well as the punishment, just because they were committed by minors.

The Justices still seem divided on this issue, making it all the more uncertain of the final outcome. Justice Ginsberg seems to agree with the attorneys representing the fact that minors are still developing and have a more likely chance to reform; Justice Sotomayor seemed troubled by the fact that there is no minimum age at which a minor could be imprisoned for life without an opportunity for parole.

As Justice Roberts pointed out in the case, “death is different”. But to imprison these people from the age of minority for the rest of their life with no chance of parole may be viewed as a quasi-death. To imprison these minors in such a way gives them no chance for a true future and also no reason to reform. Without the hope of an opportunity to one day be released, there is nothing for these minors to look or forward to or work towards.

Justices Scalia and Alito are also correct in that a large part of the justice system is about retribution for heinous crimes. Justice is one of the primary goals of our judicial system. However, one of the primary goals of the penal system is for reform. Minors imprisoned at the age of 13 are still developing and have a chance to reform; however, once again, without an opportunity for parole, they have no reason to seek reform, or even if they do they will achieve no benefit (other than internal) from such reformation. An opportunity for parole for these minors would provide them with hope, while still allowing a board to determine whether they have actually been reformed or not. By giving them this opportunity, it does not guarantee they will be paroled, but will reward those who truly have changed.

For the full article from the Washington Post, click here.

For more information on Sullivan v. Florida, click here.

For more information on Graham v. Florida, click here

Thursday, November 5, 2009

The Extent of Prosecutorial Immunity

Yesterday, the United States Supreme Court heard arguments regarding the reach of prosecutorial immunity. The Court is being asked to decide whether prosecutors can be held liable for actions leading to wrongful imprisonment through coerced testimony and fail to provide all relevant facts.

In 1978, Curtis W. McGhee Jr. and Terry Harrington were convicted of murdering a security guard who had previously been a police officer in Council Bluffs. The prosecutors in the case, Joseph Hrvol and David Richter, relied heavily on the testimony of a 16-year old witness; however, this witness had originally identified other suspects and originally reported incorrectly to police on several key aspects of the crime.

In 2003, McGhee and Harrington were released from prison after it became known that the prosecutors failed to reveal the fact that they had initially identified another individual as the suspected murderer. The individual in question had actually been seen near the crime scene, with a weapon similar to that used in the crime, and failed a polygraph relating to the crime. McGhee and Harrington also alleged that prosecutors had coerced witnesses into giving false testimony. These witnesses later recanted their testimony regarding the crime.

Prosecutors claim they need unqualified immunity in order to ensure their ability to perform their job functions properly. Prosecutors claim that this immunity needs to apply to trial work, as well as work performed prior to charging a suspect. Without such immunity, there is a fear that prosecutors would constantly be sued by convicted criminals.

McGhee’s and Harrington’s lawyer argued it unfair that police officers could be held liable for their pretrial wrongdoings, but prosecutors could not be. He also argued it inconsistent that prosecutors only have limited liability for violating a suspect’s Constitutional rights before trial, but could not be sued for using any manufactured testimony in court.

Prosecutorial immunity makes great sense in most instances. Every time a prosecutor is successful in his or her case, they do not want to have to worry about being sued. They must be able to rely on witness testimony when presenting their cases, and should not be held accountable for any wrongdoing they have no place in procuring.

However, in this case, the argument is that the prosecutors were the ones who hid evidence and aided in creating false testimony. They did not present a witness in good faith that later turned out to be lying; instead, they proffered a witness who had provided incorrect facts and identified other suspects. They ignored this information and hid the facts of the other suspect from the prosecutors and allegedly coerced witnesses to testify against the two individuals who were wrongfully imprisoned. But for the actions of these prosecutors, these two individuals would most likely not have been convicted, or for that matter may not have been charged in the first place. In cases such as this, it is hard to see why these prosecutors should be granted prosecutorial immunity for acts they did not perform in good faith and the spirit of their positions.

For the full article from the Washington Post, click here.

For more information on the case of Pottawattamie County v. McGhee, click here.