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Capital Punishment

California Governor Signs Executive Order Halting State Executions, Shuttering Death Chamber

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SACRAMENTO, Calif. (AP) — The 737 inmates on California’s largest-in-the-nation death row are getting a reprieve from Gov. Gavin Newsom, who plans to sign an executive order Wednesday placing a moratorium on executions.

Newsom also is withdrawing the lethal injection regulations that death penalty opponents already have tied up in courts and shuttering the new execution chamber at San Quentin State Prison that has never been used.

“The intentional killing of another person is wrong and as governor, I will not oversee the execution of any individual,” he said in prepared remarks.

Newsom called the death penalty “a failure” that “has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation.” He also said innocent people have been wrongly convicted and sometimes put to death.

California hasn’t executed anyone since 2006, when Arnold Schwarzenegger was governor. And though voters in 2016 narrowly approved a ballot measure to speed up the punishment, no condemned inmate faced imminent execution.

Since California’s last execution, its death row population has grown to house one of every four condemned inmates in the United States. They include Scott Peterson, whose trial for killing his wife Laci riveted the country, and Richard Davis, who kidnapped 12-year-old Polly Klaas during a slumber party and strangled her.

Newsom “is usurping the express will of California voters and substituting his personal preferences via this hasty and ill-considered moratorium on the death penalty,” said Michele Hanisee, president of the Association of Deputy (Los Angeles County) District Attorneys.

While the governor’s move is certain to be challenged in court, aides say his power to grant reprieves is written into the state Constitution and that he is not altering any convictions or allowing any condemned inmate a chance at an early release.

A governor needs approval from the state Supreme Court to pardon or commute the sentence of anyone twice convicted of a felony, and the justices last year blocked several clemency requests by former Gov. Jerry Brown that did not involve condemned inmates.

Other governors also have enacted moratoriums. Republican Illinois Gov. George Ryan was the first in 2000 and later was followed by Pennsylvania, Washington and Oregon. Illinois ultimately outlawed executions, as did Washington.

Newsom said the death penalty isn’t a deterrent, wastes taxpayer dollars and is flawed because it is “irreversible and irreparable in the event of human error.” It’s also costly — California has spent $5 billion since 1978 on its death row, he said.

More than six in 10 condemned California inmates are minorities, which his office cited as proof of racial disparities in who is sentenced to die. Since 1973, five California inmates who were sentenced to death were later exonerated, his office said.

Brown also opposed the death penalty, but his administration moved to restart executions after voters acted in 2016 to allow the use of a single lethal injection and speed up appeals. His administration’s regulations are stalled by challenges in both state and federal court, though those lawsuits may be halted now that Newsom is officially withdrawing the regulations.

Brown said he was satisfied with his record number of pardons and commutations, though he never attempted to commute a death sentence. He had focused on sweeping changes to criminal penalties and reducing the prison population.

“I’ve done what I want to do,” Brown said shortly before leaving office, defending his decision not to endorse death penalty repeal efforts in 2012 and 2016. “I’ve carved out my piece of all this.”

Democratic Assemblyman Marc Levine of Greenbrae plans to seek the two-thirds vote the Legislature requires to put another repeal measure on the 2020 ballot. Levine’s district includes San Quentin State Prison. A repeal question also was on the ballot in 2016 with the question to speed up executions. It lost by 7 points while the other question was approved by 2 points.

Newsom’s aides said it has not yet been decided what will become of the execution chamber, or whether corrections officials have been told to top preparing for executions, for instance by running drills.

Seventy-nine condemned California inmates have died of natural causes since the state reinstated capital punishment in 1978. Another 26 committed suicide. California has executed 13 inmates, while two were executed in other states.

Newsom’s office said 25 condemned inmates have exhausted all of their appeals and could have faced execution if the courts approved the state’s new lethal injection method.

Read the signed executive order below:

Capital Punishment

US Supreme Court Declines To Take Up Death Penalty Case of Keith Tharpe

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(CNN) — The Supreme Court declined on Monday to take up the case of Georgia death row inmate Keith Tharpe, who claims a juror voted to put him to death because of his race.

Lawyers for Tharpe pointed to an affidavit from an interview conducted seven years after Tharpe’s sentencing. Juror Barney Gattie used a racial slur in reference to African-Americans. He also questioned whether “black people even have souls.”

The court had heard this case back in 2018, and revived Tharpe’s case over the dissents of Justices Thomas, Alito and Gorsuch.

Now the state of Georgia is free to set an execution date.

Justice Sonia Sotomayor agreed with the court’s decision not to take up the case, in part because the lower court ruled that Tharpe had “not given a sufficient justification for failing to raise the juror-bias claim” in a timely fashion.

Sotomayor said she respected the denial of cert in the case because it did not turn on the merits of Tharpe’s racial-bias claim. But she wrote separately to say that she was “profoundly troubled by the underlying facts of the case.”

“It may be tempting to dismiss Tharpe’s case as an outlier, but racial bias is a familiar and recurring evil,” Sotomayor wrote. “That evil often presents itself far more subtly than it has here. Yet Gattie’s sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system.”

A lawyer for Tharpe condemned the court’s decision.

“Today’s decision from the U.S. Supreme Court takes giant steps backwards from the court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice,” Marcia Widder said in a statement.”

As Justice Sotomayor explained in her statement concurring in the denial of certiorari, the court’s action in denying the petition had nothing to do with the merits of Mr. Tharpe’s claim — a claim that, she noted, ‘to this day . . . has never been adjudicated on its merits.’

Rather, she observed, the court was bound to defer to complex procedural rulings made by the federal district and appeals courts below,” Widder continued.

When the court first heard the case in 2018, it said that Tharpe’s legal team had produced a “remarkable” affidavit from a juror, written after the conviction, that presented a “strong factual basis” for the argument that Tharpe’s race had affected the juror’s vote.

The majority then cautioned, however, that Tharpe faced “a high bar in showing that jurists of reason could disagree” with the state court’s opinion.

Upon further review, the lower court again ruled against Tharpe, finding he had not met the procedural burdens necessary to reopen his case. The court also held that a 2017 Supreme Court opinion that said the secrecy of jury deliberations can be pierced when there is evidence that a juror relied on racial animus did not apply retroactively to Tharpe’s case.

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Capital Punishment

Court: Alabama Can’t Keep Its Lethal Injection Method Secret

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ATLANTA (AP) — The U.S. Court of Appeals in Atlanta has sided with media organizations in ruling that Alabama can’t keep its lethal injection protocol secret from the public.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Monday rejected Alabama’s argument that its execution method is not a court record and thus should remain secret.

At issue is what the court described as the botched execution of Doyle Hamm on Feb. 22, 2018. The court said that after several failed attempts to insert a needle into him, the execution was called off as midnight approached.

The Associated Press and other news outlets then sought the state’s execution protocol and related records.

Representatives of the Alabama Attorney General’s Office couldn’t immediately be reached for comment on the decision.

Read the court ruling from the 11th Circuit Court of Appeals below:

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Capital Punishment

Ohio Governor Delays More Executions After Ruling

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March 7 (UPI) — Ohio Gov. Mike DeWine on Thursday delayed the executions of three men on death row and asked corrections officials to review alternative methods of lethal injection after a federal judge compared the state’s current process to waterboarding.

The order came after Magistrate Judge Michael Merz issued a reprieve of execution for Warren Henness in January. The judge said Ohio’s three-drug protocol for lethal injection would likely cause Henness “severe pain and needless suffering.”

Ohio was one of several states to alter the traditional drug protocol it used for decades in lethal injections after European drug companies refused to sell pentobarbital, commonly used in executions, over ethical concerns. The state began using midazolam, a sedative, in executions in 2017.

Critics say the drug does not render a person sufficiently unconscious to prevent them from feeling the pain caused by the other two drugs in the cocktail — potassium chloride, and either vecuronium bromide, pancuronium bromide or rocuronium bromide. Merz pointed to Ohio’s use of midazolam as problematic.

“We have good evidence that midazolam will cause the ‘waterboarding’ effects of pulmonary edema,” Merz wrote. “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”

Given the ruling, DeWine said he is delaying the executions of:

— Cleveland Jackson from May 29 to Nov. 13

— Kareem Jackson from July 10 to Jan. 16

— Gregory Lott from Aug. 15 to March 12, 2020

He also directed the Ohio Department of Rehabilitation and Correction to review the state’s lethal injection protocol and possible alternatives.

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