Recent Legislative Activity

NEW RESOURCES: The State of Criminal Justice 2010

The American Bar Association recently published The State of Criminal Justice 2010, an annual report that examines major issues, trends and significant changes in America's criminal justice system. This publication serves as a valuable resource for academics, students, and policy-makes in the area of criminal justice, and contains 19 chapters focusing on specific areas of the criminal justice field. The chapter devoted to capital punishment was written by Ronald Tabak, special counsel and pro bono coordinator at Skadden Arps. Tabak explores legislative changes in the states, the decline in the use of the death penalty, important Supreme Court decisions, and other issues such as the adequacy of representation in capital cases.  In concluding, he writes, "Ultimately, our society must decide whether to continue with a system that has been found in study after study to be far more expensive than the actual alternative – in which life without parole is the most serious punishment. The question has become substantially more important given the severe economic downturn in 2008-10. In view of the lack of persuasive evidence of societal benefits from capital punishment, this is one ineffectual, wasteful government program whose elimination deserves serious consideration."

California Senate Committee Passes Bill to Adopt One-Drug Lethal Injection

A bill that would change California's lethal injection procedure unanimously passed the Senate Public Safety Committee on April 20.  Senate Bill 1018, authored by Sen. Tom Harman, would require the California Department of Corrections and Rehabilitation to develop and implement a one-drug lethal injection process involving an appropriate anesthetic. California has had a de facto moratorium on executions since February 2006 when a federal judge held that the state's 3-drug lethal injection system constituted an "unconstitutional risk of cruel and unusual punishment."  California state courts have also ruled that changes to the execution method must go through a period of public notification and comment.  The state conducted public hearings and thousands of comments were submitted regarding a revised 3-drug protocol for executions.  That process is near completion, though court challenges are possible.

EDITORIALS: "Dollars and Death"

A recent editorial in the Philadelphia Inquirer cited the high costs of Pennsylvania's death penalty as a key reason for supporting an abolition bill that was proposed last month by a state senator. According to the editorial, the state could significantly cut spending by eliminating the death penalty and the lengthy court proceedings that accompany it.   Taxpayers would also save by not having to maintain the state's high-security death row, which currently houses 220 inmates.  According to the editorial, "Pennsylvania has reached the point where the right moral course - ending capital punishment - coincides more than ever with the need to get the state's fiscal house in order. The state has not had an execution since 1999 and has had six exonerations since the death penalty was reinstated in 1976.  The paper suggested that "A useful step toward scrapping the flawed capital punishment system would be to impose a moratorium on executions."  Read full editorial below. 

Washington Becomes Second State to Adopt One-Drug Protocol

On March 2, Washington became the second state to switch its lethal injection method from the three-drug cocktail used in almost all states to a one-drug protocol. Ohio was the first state to change to the single-drug protocol after the failed execution attempt involving Romell Broom. Broom was ultimately removed from the execution chamber when the correctional officers were unable to complete the execution.  In Washington, the one-drug protocol will be the presumed method, but the three-drug protocol remains an option for inmates who request it.  Washington Attorney General Rob McKenna, who filed the new policy with the state Supreme Court, also asked the court to dismiss portions of death-row inmate Darold Stenson's appeal challenging the constitutionality of the state's lethal injection procedure. The state supported the constitutionality of its three-drug protocol but made the switch because "the one drug protocol is simpler… to administer, and it no longer embroils the department in the legal challenges to the three-drug protocol," according to Dick Morgan, prisons director for the state Department of Corrections.

NEW VOICES: Head of Rutherford Institute Cautions Against Expansion of Death Penalty

John Whitehead, president of the conservative Rutherford Institute, recently voiced concerns in the Huffington Post about expanding the death penalty in Virginia. He noted, "As capital punishment studies have shown, whether or not you are sentenced to death often has little to do with the crime committed and everything to do with your race, where you live, and who prosecutes your case."  Whitehead cited several reasons for not expanding the death penalty, including the risk of executing the innocent, the opening to prosecutorial overreach, the lack of a deterrent effect from the death penalty and its high costs. He cited Death Penalty Information Center data that showed the murder rate in states without the death penalty was nearly 40% lower than in states with the death penalty. The expansion bill was defeated in a Virginia Senate committee.

Kansas Senators Equally Divided on Repealing Death Penalty

A bill that would have ended the death penalty in Kansas lost by a tie vote of 20-20 in the state Senate on February 19. The bill would have replaced the death penalty with a sentence of life without parole.  Republican Senator Carolyn McGinn, the original sponsor of the legislation, argued for repeal, pointing to the high cost of the death penalty: "It costs half a million dollars, or 70 percent more, to try a death penalty case than a non-death penalty case and yet the state hasn’t executed anyone since 1965. We’re not executing anybody. Can we use this money to prevent future heinous, horrible crimes? Can we use it to solve cold cases that are up on the shelf for those families who don’t even know who murdered their family member?" Sen. McGinn also based her opposition to the death penalty on her respect-for-life position: Those who have committed even heinous murders are still children of God, she said. "Tell me, at what point in time did they lose that status and who made that decision," she asked.  Twelve of the 20 senators who voted for repeal were Republicans. 

OP-EDS: "Kansas pretends its capital punishment system is working"

Mike Hendricks, columnist for the Kansas City Star, recently described how the state goes through the motions of having a death penalty, but with no immediate prospect of its use after 16 years.  Kansas reinstated the death penalty in 1994; eight years ago, the Lansing Correctional Facility held an open house for the media, showcasing its new death chamber. The room was then sealed and has remained untouched. Ten prisoners await execution, one of whom has been on death row for thirteen years.  “No one that I’m aware of is even close,” said Kansas Department of Corrections spokesman Bill Miskell.  Hendricks wrote: "Wouldn't sentencing the worst killers to life without chance of parole be a whole lot cheaper, simpler and - given the cold-blooded nature of state executions - more morally acceptable?"  A bill to abolish the death penalty is currently before the legislature.  Read full text below.

Death Penalty Abolition Bill Nearing a Vote in Kansas

The Senate Judiciary Committee in Kansas recently advanced (7-4) legislation that would eliminate capital punishment in the state and replace it with a sentence of life without parole. Kansas enacted its current death penalty law in 1994, but has not executed anyone for more than 40 years. There are currently ten men on the state’s death row, though none are close to execution.  The abolition legislation, which was originally introduced by Republican Sen. Carolyn McGinn to address the high costs of capital punishment, would only apply to future cases.   Senator Tim Owens, chair of the Judiciary Committee, spoke of the bill's importance, "This is truly life and death that we're talking about.  We need to have a vote."  On January 29th, the 149th anniversary of Kansas joining the union as a free state, Senator David Haley (Kansas City-D) remarked in support of abolition, “I'm reminded of what Kansas is, and what we stand for. We have values in this chamber, and as a state, that I hope we live up to."  The bill may be voted on by the full Senate soon.