Recent Legislative Activity

FOREIGN NATIONALS: Texas Execution Delayed Following State Department Request

A hearing to set an execution date for Texas death row inmate Humberto Leal was postponed after the presiding judge received a letter from a high-ranking U.S. State Department official. Leal, a Mexican citizen who was sentenced to death in 1995, had already been transferred to Bexar County Jail for the hearing to set the execution date. Harold Hongju Koh, a top legal adviser to Secretary of State Hillary Clinton, wrote the judge requesting an indefinite postponement while Congress is working on legislation that could affect Leal’s case. Leal is one of 51 Mexican citizens included in a 2004 ruling by the International Court of Justice (ICJ) (Avena and Other Mexican Nationals) that Mexican foreign nationals on U.S. death rows were not given proper notification of their rights to contact their foreign consulate. Koh said that the case is important in U.S. foreign relations, and wrote that, “The Executive Branch is engaging in consultations with Congress and with the Government of Mexico to determine how best to ensure the United States complies with its obligations under Avena.”

Innocence Commission Created in Florida

Florida Supreme Court Chief Justice Charles Canaday issued an Administrative Order creating a Florida Innocence Commission “to conduct a comprehensive study of the causes of wrongful conviction and of measures to prevent such convictions.”  The Administrative Order creating the commission stated the basis for the investigation: "WHEREAS, the occurrence of cases in which the innocent are convicted and punished constitutes a grave injustice; and WHEREAS, the imperative of avoiding such injustice requires a comprehensive examination of the causes of wrongful convictions and an in-depth consideration of measures to prevent the conviction of the innocent." The commission will only review cases that have already been determined to be wrongful convictions.  The 23-member Innocence Commission is scheduled to submit an interim report to the Court no later than June 30, 2011 and a final report and recommendations to the Court no later than June 30, 2012. 

NEW VOICES: Former New Hampshire Supreme Court Justice Calls for Abolition

Joseph P. Nadeau, who served on New Hampshire's Supreme Court for six years and as a judge for 37 years, recently testified before the state's death penalty commission about his opposition to the practice. In an op-ed, Judge Nadeau summarized the moral and practical reasons why he believes capital punishment should be repealed. "Our thinking evolves, as people, technology, and societies progress," he said.  "And what is acceptable at one time in our history may become unwelcome at another. So we are encouraged to re-examine our core principles and to consider whether death continues to be an acceptable punishment in New Hampshire." He dismissed the notion that the death penalty is needed to honor law enforcement officers: "Its abolition does not dishonor those who serve in law enforcement because honor comes from personal pride and earned respect, not from the ability of the state to execute a human being."

Judge Nadeau continued, "No legal system is perfect. Human beings make mistakes. That is one reason we accept the notion that occasionally the guilty will go free and the innocent will be convicted. But I do not believe anyone accepts the notion that it is all right for a person to be wrongfully executed. So with the most respected judicial system in the world, how can we willingly embrace a sentence which cannot be reversed after it is imposed; and how can we continue to believe that it is morally acceptable for the state to take a human life?" Read full op-ed below.

BOOKS: Voices of the Death Penalty Debate

voices bookVoices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment is a new book that explores arguments for and against the death penalty through testimony given at the historic 2004 and 2005 hearings in New York on whether the state's death penalty should be reinstated.  The state's law was struck down by the N.Y. Court of Appeals in 2004.  Authored by Russell Murphy, a Suffolk University Law School professor, the book walks readers through testimony from experts, ordinary citizens, victims, organizations, religious leaders, and individuals who had been exonerated and freed from death row.  For more information on this book, click here.  (New York's legislature has repeatedly refused  to reinstate the death penalty, and in 2007 the last person was removed from the state's death row, ending a 12-year experiment with capital punishment, which had been reinstated in 1995).

California Regulators Reject New Death Penalty Procedures

On June 8, California's Office of Administrative Law rejected the new lethal injection procedures proposed by the Department of Corrections and Rehabilitation, identifying several passages that conflicted with state law, that were unclear, or failed to properly state reasons for the new procedures. There has been a de facto moratorium on all executions in the state since 2006 after a federal judge ordered the state to revise its lethal injection process because it posed a risk of severe pain to the inmate being executed.  A state court also ruled that revisions to the execution process were subject to a period of public review and comment before becoming effective.  After drafting new regulations, the state received about 20,000 mostly critical comments from the public.

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.