Monday, 29 July 2013

The Death Penalty in Georgia: Bill 96 and the Case of Warren Hill

In the 2013-2014 Regular Session of the Georgia General Assembly, Members of the House of Representatives, Representative Tyrone Brooks and Representative Dee Dawkins-Haigler, introduced House Bill 96. The full title of the House Bill is Official Code of Georgia Annotated (2010)(O.C.G.A.); An Act to repeal the imposition of the death penalty in this state, to repeal references to procedures related to capital cases; to provide for matters relative to the foregoing; to provide for applicability; to provide effective dates; to repeal conflicting laws; and for other purposes. The Bill is now in the second reading stage, having passed the House Hopper on January 17, 2013, and the House First Readers on January 28, 2013.   
Bill 96 comes at a time when the United States Supreme Court will consider the case of Warren Hill (30 September 2013).

Warren Hill (pictured) is arguing that the O.C.G.A. s. 42-5-36(d) is unconstitutional as it prima facie does not provide for the obtaining of adequate information on the composition of the lethal injection protocol, and prevents access to information as to the personnel who participate in the protocol. The roles and responsibilities of the Board of Corrections, Department of Corrections and the Commissioner of Corrections, are not transparent, and this prevents him from obtaining information to assess whether his constitutional rights are violated. Hill asserts that there is noncompliance with the Administrative Procedure Act, as a result of the Commissioner’s decision to change executions by lethal injection from a three-drug to a one-drug procedure. 
O.C.G.A, s. 42-5-36(d), states,

“(1) As used in this subsection, the term 'identifying information' means any records or information that reveals a name, residential or business address, residential or business address, residential or business telephone number, day or month of birth, social security number, or professional qualifications.

(2) The identifying information of any person or entity who participates in or administers the execution of a death sentence and the identifying information or any person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or medical equipment utilized in the execution of a death sentence shall be confidential and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 or under judicial process. Such information shall be classified as a confidential state secret.”

In the Superior Court of Fulton County, State of Georgia, Judge Gail S. Tusan (pictured), considered Hill’s arguments on the constitutionality of O.C.G.A. and provided a most cogent judgement, holding,

“To be executed without being aware of basic information regarding the protocols the State will use to carry out such an execution is surely an irreparable harm. If Plaintiff’s execution had proceeded as scheduled on July 15, 2013, such an irreparable harm would have befallen him. Moreover, the fact that Plaintiff now has access to some additional knowledge does not dispel the irreparable harm that he would suffer if he were executed today or even at the July 19, 2013 7pm time announced by the Defendant’s attorney at the end of her argument. This became clear to the Court during the hearing when neither expert could testify to certain basic information regarding the particular drug that would be used to execute the plaintiff. Without more information, the Court finds that Plaintiff still, today, cannot possibly determine whether or not the pentobarbital in question was somehow contaminated or otherwise property compounded. ” Hill v. Owens, 2013-CV-233771, p. 2-3 (emphasis added).

Warren Hill has also filed state and federal habeas petitions claiming that he suffers from mental health problems, thus executing him in this cognitive state would constitute a violation of the Eighth Amendment of the United States Constitution’s Cruel and Unusual Punishment’s Clause. This argument will be raised in his case before the United States Supreme Court on 30 September 2013. Indeed, Hill's mental health issues have been previously identified by Amici, American Association on Intellectual and Developmental Disabilities and the Arc of the United States, in their amicus curiae brief in Hill v. Humphrey, No. 11-10109, May, 17, 2012. These specific arguments detailing mental health issues find support in the United States Supreme Court decision in Atkins v. Virginia, which held that it is unconstitutional to execute an inmate who has been diagnosed with mild mental retardation (now classified as a form of intellectual and developmental disability). In addition, following Wiggins v. Smith as part of "effective" capital representation, all reasonable attempts should be made to investigate a defendant's mental health history.

However, these issues would become moot if the Georgia General Assembly pass Bill 96. The Bill introduces the general vicissitudes associated with the death penalty, provides a framework to repeal the death sentences of those currently facing the death penalty, and also repeals conflicting laws and establishes alternative sentences.

Below are selected sections of Bill 96 with inserted commentary [in brackets]: 

In Section 1, the Bill states:
“The General Assembly makes the following legislative findings:
(1)    The imposition of the death sentence has become increasingly problematic as more persons convicted of serious crimes are being found innocent by new evidence, often years or decades after their sentence was imposed, and it is impossible to believe that such errors are limited to noncapital cases;    
...

(3)    Even those who might relish the death of a human being convicted of a serious crime must cringe at the possibility of the state executing an innocent person.
(4)    Given the natural and healthy distrust many people have for their governmental institutions, it stretches the imagination that anyone would attribute infallibility to the legal system which, after all, is a very human institution;”

[Innocence and manifest injustice projects, since Barry Scheck and Peter Neufeld founded the Innocence Project at the Benjamin N. Cardozo School of Law in 1992, have proliferated across the United States. All are working after the fact of a claimed miscarriage of justice and that due process of law had not hitherto provided an adequate fact finding process. In the issue of the death penalty, since 1973, there have been 143 people who have been exonerated. (See, DPIC, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row).

Bill 96 uses the same adjective as the famous Marquis de Lafayette quote when he addressed the French Chamber of Deputies following the Revolution, and stated,“Till the infallibility of human judgement shall have been proved to me, I shall demand the abolition of the death penalty.” Indeed, if a retentionist acknowledges that the death penalty system is fallible, and then still supports the death penalty, it is only right that he/she fully accepts that they could be one of the innocent people who might be executed. A retentionist cannot accept a judicial practice and then maintain that they are immune from the application of that judicial practice. No one is above the rule of law.]

“(2) As a largely pro-life state, Georgia recognizes the sanctity of human life up to the time of a natural death;”

[The traditional sanctity of life argument reserves the right to life and death to a transcendent deity, and there is also a secular “sanctity of life” position, which reserves creation and ending of life within the ecosystem/biosphere. Only the natural order of things can bring about the creating and ending of life. A state observing the process of “life up to the time of a natural death,” ipso facto, cannot impose the death penalty, as this is an “unnatural death” or the synthetic quickening/hastening of death. Human beings cannot participate in the hastening of death within the state criminal justice system and must leave the process of the ending of life to the deity or mother nature.]

“(5) Participation in the execution of persons imposes a heavy emotional burden on those public employees who are required by the duties of their position to assist in the procedure, as well as persons more removed from the act, including judicial officers and jurors;”

[Many death penalty scholars, including the great Hugo Adam Bedau, have effectively demonstrated that the death penalty brutalizes society as it puts the thanatos, (the “death drive”) within the immediate conscience of many people. When people participate in executions, read about them, live near prisons with death rows, and have family or friends who are involved in the capital judicial system, it arouses sentiments, in many people, which are antagonistic to humanity, human rights, human dignity and general peaceful living. Society will benefit in a social and cultural way (for healing) when the death penalty is abolished.]

“(6) The long and inevitable delays in such cases deny the families of crime victims of the closure a swift sentence of life without hope of parole would bring;”

[Due to the labyrinth that is the United States capital judicial process (the weaving up-and-down state and federal courts in habeas corpus and collateral appeals processes) some prisoners can be on death row for 30+ years. For example, in the case of Valle v. Florida, Manuel Valle had spent 33 years on death row before he was executed, see;  http://www.guardian.co.uk/world/2011/sep/29/manuel-valle-execution-carried-out   

The Death Penalty Information Center (DPIC), a leading resource on the death penalty in the United States, charts the increase average length in time spent on death row in the United States; from 74 months (6 years and 2 months) in 1984 to 178 months (14 years and 8 months) in 2010. Source: DPIC, “Costs of the Death Penalty,” at; www.deathpenaltyinfo.org/costs-death-penalty See also the New York Times article, “Justices Rule on Legal Effects of Slow Moving Cases,” by Adam Liptak, at;  http://www.nytimes.com/2009/03/10/washington/10scotus.html?_r=3&ref=us&

The constitutionality of the increased time spent on death row has been questioned by Justices’ Stevens, Ginsburg and Breyer in cases such as (all dissenting judgements against denial of certiorari), Lackey v. Texas, Knight v. Florida, Moore v. Nebraska, Valle v. Florida, and Thompson v. McNeil. In Thompson v. McNeil, Justice Stevens stated, “our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such delays is unacceptably cruel.” Justice Breyer in Valle v. Florida echoed this reasoning when he stated, “I have little doubt about the cruelty of so long a period of incarceration under the sentence of death,” and he further explained that under the Eighth Amendment 32 years on death row was both “cruel” and “unusual,” and he stated that, “It might also be argued that it is not so much the State as it is the numerous procedures that the law demands that produce decades of delay. But this kind of an argument does not automatically justify execution in this case. Rather, the argument may point instead to a more basic difficulty, namely the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”]      

“(7) In addition to the moral issue, the hard economic fact is that this state and its political subdivisions can no longer bear the heavy financial burden inextricably tied to the imposition of capital punishment; and

(8) For the foregoing reasons, the General Assembly deems it a moral and fiscal imperative to repeal capital punishment in this state.”

[The cost of the death penalty is rising across the United States and many states are declaring that their death penalty system is “broken.” The moral and social science reasons for the death penalty have been effectively refuted, and now the fiscal issue is becoming a dominant topic for debate. Justice Stevens stated in the Supreme Court case of Baze v. Rees, that the death penalty remains in the retentionist states in America because of “habit and inattention.” However, the cost of the death penalty is now receiving great attention, and the Georgia Bill 96 highlights this point. For example, Arkansas Attorney General, Dustin McDaniel, declared the state death penalty system “completely broken,” the former Chief Justice of Oregon, Paul De Muniz, stated that the death penalty was “bad public policy,” and leading death penalty lawyer, Bryan Stevenson, has argued that the high cost of the death penalty unjustifiably funnels money which could be better spent on other parts of the criminal justice system. Specific costs for state capital judicial systems include; in Maryland, five executions have cost $186million; in California, since 1978, the death penalty has cost $4billion; in New York, before the death penalty was overturned in 2004, the state spent $170million with no executions; and in North Carolina, the death penalty costs $11million per year].

See the DPIC’s information on the fiscal issues of the death penalty, “Costs of the Death Penalty,” at; www.deathpenaltyinfo.org/costs-death-penalty .


These are all cogent reasons for why Georgia should abolish the death penalty through the adoption of this Bill. The legislation drafted by the forward thinking Representatives Brooks and Dawkins-Haigler is to be commended. Theirs is a vision for the promotion of human rights and dignity in the State of Georgia, and as they wrote in House Bill 96, s. 1(8) it is a “moral and fiscal imperative” that Georgia repeals capital punishment.

For the Official Code of Georgia Annotated, Title 42 Penal Institutions, Chapter 5 – Correctional Institutions of State and Counties, see;  http://policy.mofcom.gov.cn/english/flaw!fetch.action?id=cb93c784-4fd0-4ff6-a43d-07ffc661d749

For the Georgia General Assembly, see;   http://www.legis.ga.gov/en-US/default.aspx


For the 2013-2014 Regular Session – HB 96, Official Code of Georgia Annotated; repeal the imposition of the death penalty in this state, see;  http://www.legis.ga.gov/legislation/en-US/Display/20132014/HB/96  

Friday, 26 July 2013

SCOTUSblog and Following Cases in the United States Supreme Court


For all those interested in the litigation before the United States Supreme Court, SCOTUSblog is a must. It provides up-to-date information on the cases the Court hears each judicial term, synopses of major cases decided, upcoming petitions, major pending petitions, recent decisions, statistical information, and a twitter feed to keep litigants, and those following the court, aware of court activity as it happens.

Academics, lawyers, and civil society experts comment on pending cases making their way through the state and federal courts to being granted “certiorari” by the Supreme Court. For example, in the case of Association for Molecular Pathology v. Myriad Genetics, Inc, in which the Supreme Court considered inter alia whether human genes could be patented, see the “Academic Round-up” by Amanda Frost, Professor of Law at American University, “Academic Highlight: Myriad Genetics and the history of intellectual property in the United States, June 11th, 2013, at www.scotusblog.com/?p=164717  

SCOTUSblog is also a very useful source for those following cases who file amicus curiae briefs ("friend of the court") who are not the appellant or responded in a particular case, but have an interest in the proceedings and provide further information to the court to enable it to make fully informed judicial decisions.  

Some key decisions by the Supreme Court in 2013 have been:

Association for Molecular Pathology v. Myriad Genetics, Inc, Docket No. 12-398, June 13, 2013, in which Justice Thomas gave the 9-0 opinion of the court in that a naturally occurring DNA segment is a manifestation of nature and not therefore not patent eligible merely because it has been “isolated,” but that synthetic complementary DNA (“cDNA”) is patent eligible because it is not naturally occurring.  

United States v. Windsor, Docket No. 12-307, June 26, 2013, in which Justice Kennedy delivered a 5-4 majority judgment holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional as it deprives the equal liberty of persons under the 5th Amendment.

Shelby County v. Holder, Docket No. 12-96, June 25, 2013, in which Chief Justice Roberts delivered the 5-4 majority decision that Section 4 of the Voting Rights Act was unconstitutional and it cannot be used as a basis for subjecting jurisdictions preclearance.

Kiobel v. Royal Dutch Petroleum, Docket Number 10-1491, in which Chief Justice Roberts delivered the 9-0 opinion of the court and held the presumption against the extraterritorial application of U.S. law applies to claims under the Alien Tort Statute, and the presumption is not rebutted.  

For SCOTUSblog see, www.scotusblog.com


Twitter @SCOTUSblog

Tuesday, 23 July 2013

African Court Grants Interim Relief to the Ogiek Community

In African Commission on Human and Peoples' Rights v. the Republic of Kenya App. No. 006/2012, (2013), the African Court on Human and Peoples' Rights ordered the Kenyan government not to implement an eviction order removing the Ogiek Community from the Mau Forest. The Ogiek People, "Guardians of the Forest," lived in the Mau Forest centuries before their ancestral land was first dispossessed by British colonists in the 1930s. Following independence the Kenyan government have initiated repeated efforts to evict the Ogiek Community from the forest claiming that there is an unsustainable exploitation of the forest and therefore all peoples must be removed. The Kenyan government demands that they move from the forest on the grounds that it constitutes a water catchment zone and is part of the government ownership of land under s. 4 of the Kenyan Land Act.

The Ogiek Community of the Mau Forest are an indigenous minority ethnic community comprising in the region of 20,000 members, with about 15,000 inhabiting the Mau Forest that spans 400,000 hectares. The forest is their home and provides their livelihood, and is the source of their "sacral identity." On their website (Ogiek Peoples' Development Program), the Ogiek Community claim contrary to the Kenyan's government's views, they do not overly exploit the forest but live within the ecosystem's equilibrium. They state, "Mau forest is our home, we are not encroachers we are forest dwellers, we don't cut trees we nurture them for our livelihood, we hung our beehives, it's our sure 'hospital,' we get herbs, it's a sacred mother earth to us."

The Ogiek Community claim to have been subject to repeated attempts of forced eviction, harassing and intimidation by government officials, and they also argue Kenyan property law does not recognise their claims to communal ownership of the forest. As such, their recourse to law is frustrated.

Following the petition by the applicants, the Registry of the African Court on Human and Peoples' Rights, have repeatedly requested responses by the Kenyan government to the Ogiek Community's claims, the most recent was 21 February 2013, but the Registry has not received a reply. In holding for the applicants, the Court stated (para. 20);

"In the opinion of the Court, there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Ogiek Community with regard to violation of their rights guaranteed under the [African Charter on Human and Peoples' Rights] to, among others: enjoyment of their cultural rights and protection of their tradition values under Article 2 and 17(2) and (3); protection before the law under Article 3; integrity of their persons under Article 4; the right to property under Article 14; and the right to economic, social and cultural development under Article 22."

The Court ordered the Kenyan government to halt the eviction until the case could be fully considered. The Court waits to see whether it's order will be complied with, and whether the Kenyan government will reply to its communications and appear before the Court in the future proceedings.

For the Ogiek Peoples' Development Program, see http://www.forestguardian.net/start.htm
To contact and support the Ogiek Peoples,' see http://www.ogiek.org/contact/


OAS Condemns Murder of Journalist in Mexico

On 22 July 2013, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights condemned the murder of Alberto Lopez Bello, a journalist at El Imparcial. The murder occurred on 17 July in Oaxaca de Juarez, in the state of Oaxaca, Mexico. The Office of the Special Rapporteur, "expresses its concern and urges the Mexican authorities to take urgent action to establish the motive of the crime and to activate all the legal instruments available to identify and punish the perpetrators behind the crime."

A press release issued by the Government of the state of Oaxaca stated that the State General Public Prosecutor must, "rule [the homicide of the journalist] as a high impact case and to send it to the Special Bureau of Attention to Journalists, in order to clarify the murder."

The Organisation of American States' American Convention on Human Rights, Article 13 (1) states, "Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice." Further legal mechanisms for the strengthening of the protection of the life and rights of journalists is found in the Declaration of Principles on Freedom of Expression, Principle 9, which states, "The murder, kidnapping, intimidation of and/or threats to social communications, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation."

The OAS noted in their Report on the Situation of Human Rights in Mexico that, "Attacks on journalists are specifically intended to silence them, and so they also constitute violations of the right of a society to have free access to information." On 30 August 2012, the NGO, Article 19, reported that since 2003, 13 journalists have been, and remain, reported as "disappeared." Article 19 argue that in each of the 13 cases, the disappeared journalists share a common set of characteristics as they occur: (i) where organised crime groups have a significant presence or influence over local authorities, (ii) if they cover organised crime or the corrupt links between organised crime and the authorities, and (iii) where state authorities have failed to create specific laws against enforced disappearances.

It is of crucial importance that the motive for the death of Alberto Lopez Bello is identified. If an individual or group has caused the death through the commission of a crime, then the state authorities must punish that individual through normal criminal procedures. However, if the death occurred via a state body, then it must be reported and those governmental officials or agents should be charged with the homicide. The American Convention on Human Rights Article 13, and the Declaration of Principles on Freedom of Expression, Principle 9, are used by the OAS to firstly, help protect the human rights of those in the media, and secondly, to prevent illegitimate censorship by state governments and officials, and state corruption which occurs as a result, nor necessitated by, the censorship and hostilities towards those in the media.          

Many journalists across South America face threats to their safety and life as they undertake their work to report on political and criminal justice issues. Since 1996, the Inter-American Commission on Human Rights has considered 38 cases on violence, threats and hostilities against members of the media, 33 cases on the imposition of sanctions due to expression, 29 cases of direct and indirect censorship, and 23 cases concerning access to information. The cases involving Mexico are:

Violence, Threats and Hostilities Against the Members of the Media

Petition 11.740, Report No. 130/99, Mexico, Victor Manuel Oropeza, November 19, 1999 (Admissibility, Merits)

Petition 11.739, Report No. 50/99, Mexico, Hector Felix Miranda, April 13, 1999 (Merits)

Petition 11.610, Report No. 34/98, Mexico, Loren L. Riebie, May 5, 1998 (Admissibility)

Petition 10.545, Report No. 33/98, Mexico, Clemente Ayala Torres, et al, May 5, 1998 (Admissibility)


Subsequent Imposition of Sanctions Due to Expression 

Petition 10.545, Report No. 33/98, Mexico, Clemente Ayala Torres, et al, May 5, 1998 (Admissibility)

Petition 11.430, Report No. 43/96, Mexico, Jose Francisco Gallardo Rodriguez, October 15, 1996 (Merits)


Direct and Indirect Censorship

Petition 938/03, Report No. 67/04, Mexico, Alejandro Junco de la Vega and Eugenio Herrera Terrazas, October 14, 2004, (Admissibility)

Petitions 9768, 9780, 9828, Report No. 01/90 (Annual Report of the Inter-American Commission on Human Rights 1989-1990, Mexico, May 17, 1999 (Merits)


For the OAS statement on the death of Alberto Lopez Bello, see  http://www.oas.org/en/iachr/expression/showarticle.asp?artID=930&lID=1

For the Inter-American Commission on Human Rights' decisions on cases concerning threats to members of the media, impositions of sanctions due to expression, direct and indirect censorship, and access to information, see  http://www.oas.org/en/iachr/expression/jurisprudence/decisions_iachr_topics.asp

For the Special Rapporteurship on Freedom of Expression, see http://www.oas.org/en/iachr/expression/index.asp

For the Update: Article 19 Mexico marks 13 missing journalists on Day of the Disappeared, see http://www.article19.org/resources.php/resource/3425/en/article-19-mexico-marks-13-missing-journalists-on-day-of-the-disappeared