Ineffective Counsel in Death Penalty Cases and the Promise of Therapeutic Jurisprudence.

It is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts. We must also assess all of the concerns raised in this excellent paper by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.

Evaluating Competency for Execution after Madison v. Alabama.

This article summarizes the evolution of the U.S. Supreme Court's standard for assessing defendants' competency for execution. In Ford v. Wainwright (1986), the Court categorically exempted insane defendants from execution but failed to agree on how to define insanity. In Panetti v. Quarterman (2007), the Court ruled that defendants may be executed only if they rationally understand why they are being punished. In its most recent decision, the Supreme Court ruled in Madison v. Alabama (2019) that defendants who cannot remember committing the original crime may be executed, but dementia may prevent defendants from rationally understanding why they are being punished. The Court remanded the case to Alabama's trial court with instructions to re-determine Mr. Madison's competency. This article concludes by recommending best practices for those who evaluate defendants for competency to be executed.

Arsenic, Familicide, and Female Physiology in Nineteenth-Century America.

Sarah Jane Whiteling was accused of fatally poisoning her husband and two children in Philadelphia in 1888. The case prompted public outrage over the appearance that Ms. Whiteling's motive was to collect life insurance. It was evident, however, that she was disturbed, raising a question of culpability. Dr. Alice Bennett, the first female physician in charge of an asylum, provided the defense with expert testimony on the defendant's mental state. Dr. Bennett, who had little forensic but much clinical experience, proposed a physiological theory of insanity among women with reproduction-related derangements. At that time, cultural ideas about "female poisoners" colored popular and journalistic perceptions of Ms. Whiteling. Familicide was considered unconscionable because a mother's duty was to nurture and protect her family. When Ms. Whiteling was convicted and sentenced to death, Dr. Bennett undertook a campaign for commutation. Her unsuccessful efforts to reduce culpability were followed by Ms. Whiteling's hanging in 1889, the first execution of a woman in Philadelphia since colonial times. This article recounts the Whiteling case, Dr. Bennett's involvement in it, and how it relates to what is known about familicide. It is argued here that Dr. Bennett was a pioneer in applying medical expert testimony to effect individualized mitigation.

Dementia and the Death Penalty.

During its 2018-2019 term, the United States Supreme Court considered the constitutionality of executing a prisoner with dementia. In Madison v. Alabama, the Court ruled that, in certain circumstances, executing a prisoner with dementia violates the Eighth Amendment's ban on cruel and unusual punishment. Vernon Madison was sentenced to death for killing a police officer in 1985. After many years on Alabama's death row, he had a series of strokes and was diagnosed with vascular dementia. In 2016, Madison's lawyers unsuccessfully sought a stay of execution, arguing that, in light of his cognitive impairments, imposing the death penalty would violate the Constitution. After Alabama set a 2018 execution date, lawyers returned to the state court, arguing that the finding of competence should be reversed because Madison's cognitive impairments had worsened. When the trial court refused to grant the stay of execution, Madison's lawyers asked the Supreme Court to review the constitutionality of the state court decision.

Conceptual and Scientific Defects in the Supreme Court's "Method of Execution" Jurisprudence.

The Eighth Amendment to the US Constitution prohibits the infliction of cruel and unusual punishments. However, no method of executing prisoners has ever been deemed by the Supreme Court to constitute Cruel and Unusual Punishment. Constitutional challenges to the dominant mode of executing prisoners today - lethal injection - are hobbled by a lack of clinical data that would reveal the likelihood this method might inflict gratuitous pain. Here, we assess the contemporary Eighth Amendment jurisprudence, including its legal and scientific limitations, and suggest modifications.

Evaluating Intellectual Disability after the Moore v. Texas Redux.

This article reviews the history of the U.S. Supreme Court's rulings on intellectual disability in capital cases, highlighting the difficulty states have had in devising a workable definition that meets constitutional standards. The Court's decisions in Penry v. Lynaugh (1989), Atkins v. Virginia (2002), and Hall v. Florida (2014) are briefly summarized. Next, the Texas Court of Criminal Appeals' ruling in Ex parte Briseno (2004) is discussed as a prelude to the Supreme Court's decision in Moore v. Texas I (2017). On remand, the Texas Court of Criminal Appeals interpreted the Supreme Court's Moore I ruling in a manner that resulted in finding Mr. Moore intellectually able, and therefore eligible for the death penalty, in Ex parte Moore II (2018). Finally, the importance of the Supreme Court's most recent ruling on intellectual disability in capital cases, Moore v. Texas II (2019), is explored in depth. The article concludes with recommendations for best practices among forensic evaluators who assess capital defendants for intellectual disability.

Dementia and the Death Penalty.

As death row prisoners age, a new set of issues arises regarding their competence to be executed. Can a prisoner with dementia who no longer remembers the crime be put to death? What if the dementia has progressed to the point that the prisoner no longer understands that he or she faces execution, or why? These issues were considered by the U.S. Supreme Court in its recent decision in Madison v. Alabama. Implicitly rejecting the cruelty of executing a highly impaired prisoner, the court clarified the conditions that could preclude execution and the degree of impairment that must be present.

Nurse participation in legal executions: An ethics round-table discussion.

A paper was published in 2003 discussing the ethics of nurses participating in executions by inserting the intravenous line for lethal injections and providing care until death. This paper was circulated on an international email list of senior nurses and academics to engender discussion. From that discussion, several people agreed to contribute to a paper expressing their own thoughts and feelings about the ethics of nurses participating in executions in countries where capital punishment is legal. While a range of opinions were presented, these opinions fell into two main themes. The first of these included reflections on the philosophical obligations of nurses as caregivers who support those in times of great need, including condemned prisoners at the end of life. The second theme encompassed the notion that no nurse ever should participate in the active taking of life, in line with the codes of ethics of various nursing organisations. This range of opinions suggests the complexity of this issue and the need for further public discussion.

Death Penalty Disposition in China: What Matters?

In theory, sentencing decisions should be driven by legal factors, not extra-legal factors. However, some empirical research on the death penalty in the United States shows significant relationships between offender and victim characteristics and death sentence decisions. Despite the fact that China frequently imposes death sentences, few studies have examined these sanctions to see if similar correlations occur in China's capital cases. Using data from published court cases in China involving three violent crimes-homicide, robbery, and intentional assault-this study examines the net impact of offender's gender, race, and victim-offender relationship on death sentence decisions in China. Our overall multiple regression results indicate that, after controlling for other legal and extra-legal variables, an offender's gender, race, and victim-offender relationship did not produce similar results in China when compared with those in the United States. In contrast, it is the legal factors that played the most significant role in influencing the death penalty decisions. The article concludes with explanations and speculations on the unique social, cultural, and legal conditions in China that may have contributed to these correlations.

To Reinstate or to Not Reinstate? An Exploratory Study of Student Perspectives on the Death Penalty in Michigan.

The U.S. state of Michigan abolished the death penalty in 1846. Since then, several abortive efforts have been made by state legislators to re-establish the death sentence to deal with convicted murderers. Concurrently, some support exists among Michigan residents for the restoration of capital punishment in the state. This article presents the results of the analysis of an attitudinal survey of 116 college students enrolled in three criminal justice courses in a Michigan public university concerning the reinstatement of the death sentence in the state. The data from this exploratory study show that a slight majority (52.6%) of respondents favored reinstatement whereas 45.7% opposed restoration. Advocates and opponents of re-establishment of the death penalty in Michigan provided similar religious, moral and economic arguments proffered by others in previous surveys on capital punishment available in the death penalty literature. The current study makes a contribution to the scant extant literature on attitudes toward the death penalty in abolitionist jurisdictions. As this body of literature grows, it can provide baseline data or information with which to compare attitudes in retentionist states.

The Emergence of Second-Generation Lethal Injection Protocols: A Brief History and Review.

The history of capital punishment in the United States is long and controversial. In many cases, lethal injection has brought medical personnel, ethically and professionally charged with preserving life, into the arena of assisting the state in taking life. U.S. Supreme Court decisions, including Baze v. Rees (2008) and Glossip v. Gross (2015), have evaluated and condoned lethal injection protocols. Despite the judicial validation of some midazolam-containing protocols, controversy exists about the level of unconsciousness provided due to the ceiling effects of the drug. Drug shortages, induced in part by manufacturers under pressure by death penalty opponents and governments opposed to capital punishment, have forced states to sometimes use creative means to obtain medications for use in lethal injection, even proposing to allow inmates to supply their own drugs for use in execution. Others have resorted to using compounding pharmacies and enacting tougher execution secrecy laws to protect the identities of those involved in the process. Professional organizations representing health care team members, including nursing, medicine, and pharmacy, among others, have roundly denounced the medicalization of capital punishment. Legal challenges continue to mount at all levels, leading to an uncertain future for lethal injection.

ANA Expands Opposition to Capital Punishment.

The change is based on ethical concerns, including racial bias.