Baumgartner, POLI 203, Spring 2018 Deadly Justice, Ch 11-13 - Stays of Execution - Mental Health - Public Opinion Announcements: Death row visits set up for Feb 23, April 30, May 4, 7, 11. Poll Everywhere: make sure you are signed up. We will test the system today. First speakers event: Next Monday! PollEverywhere at beginning. Don’t be late. Catch-up from last time: Elbridge Gerry, his grandson, and their collective contributions to the US; Edison, Westinghouse, and the “war of currents” (and the unfortunate Mr. Kemmler); lethal injection paradox Questions before we start? Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 https://www.polleverywhere.com/multiple_choice_polls/psqd8fi7I5wyACZ Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 Stays Death Warrant: signed (usually by the governor) setting the date and time of your execution. Typically 30-90 days in advance. Differs by state, of course. DPIC page on upcoming executions. Some are scheduled YEARS ahead of time. https://deathpenaltyinfo.org/upcoming-executions Note that so many are cancelled Baumgartner, POLI 203, Spring 2018

Uncertainty and the element of torture Threat of death, relief from the threat, threat again, relief, threat, relief, etc. One natural reaction to those tortured in this manner is to seek to “get it over with” 1890, Medley: condemned had to wait, in solitary confinement, for 4 weeks, all the time being uncertain as to whether the governor might commute the sentence or if it would be carried out. See Justice Breyer’s comment in Glossip, p. 217 of our book. Note: on-again off-again nature of the process includes reversals as well as stays Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 How common are stays? DPIC lists all scheduled executions from 2010 through 2015 285 stays 234 executions You can do the math. Stays are pretty common PA database on all death warrants 433 death warrants Almost stayed more than a month before the execution 71 stayed less than 7 days before the date 5 less than 1 day Only 3 executions in PA since 1976, all volunteers Baumgartner, POLI 203, Spring 2018

No comprehensive data, but… Stays are not uncommon Lawyers continue the fight right to the very last minute Uncertainty shrouds the process to the end Many inmates have had their last meals several times. Troy Davis example, as we will see later. A paradox: A stay is “good news” for the defense team, and they seek a stay. But a system with so many stays and so much uncertainty is unsettling and seems akin to torture. No winners on any side here. Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 Mental Health Betsy Neill: senior thesis project Constitutional issues Atkins v. Virginia (2002): low IQ prohibits execution (contradicting 1989 Penry v. Lynaugh, holding that it was ok; evolving standards of decency…) Ford v. Wainwright (1986): inmate must understand the reason for execution Several cases: can the state forcibly medicate the person, to make them sane enough? Mental Illness and intellectual capacity separate issues Illness at the time of the crime v. at the time of execution Note: Texas “future dangerousness” may make illness an aggravator… Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 Data and results Court and media records from 2000 through 2015 Older data hard to find on-line This probably under-estimates mental illness quite dramatically May not be mentioned in trial May not be mentioned in any news coverage Often requires official medical diagnosis, hospitalization, school records, testing, etc. Many people never get tested, so there could be a lot of illness that was never diagnosed. Note the legal paradox: Low IQ or mental illness may be a mitigator or make you exempt from the death penalty. But it is also very pejorative so IQ test administrators generally seek to “nudge up” people, especially in school-related cases, where special education is more expensive… Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 The bottom line: The mentally ill are highly vulnerable. And jurors may be scared of them, or think they have no remorse… Baumgartner, POLI 203, Spring 2018

Rates of serious mental illness much higher Serious mental illness more common Volunteers for execution compared to others executed Baumgartner, POLI 203, Spring 2018

How would you respond, as a juror? Inmate is crazy. Abusive childhood, maybe deep anger, anti-social behavior, not sense of “what is right”, maybe very violent, perhaps sexually violent Crime may be particularly heinous, violent Courtroom demeanor may be inappropriate May not cooperate with his own attorney Turns out, this does not work very well for the inmate… Texas: “future dangerousness” must be considered. Baumgartner, POLI 203, Spring 2018

OK to execute veterans? Those with PTSD from their military service? About 10 percent of those executed have been veterans. Of course, military service may have had nothing to do with their crime. But many appear to have had symptoms of PTSD. Perhaps it makes the crimes more heinous than what a “sane” person would do. Is that an appropriate aggravator, or should it be a mitigator? Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 Public opinion: The Gallup Poll Question: “Are you in favor of or opposed to the death penalty for persons convicted of murder?” Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 See the Gallup web site itself. Every year they give a comprehensive update http://news.gallup.com/poll/221030/death-penalty-support-lowest- 1972.aspx Baumgartner, POLI 203, Spring 2018

Question wording matters Higher support: Generic question Specific individuals such as Saddam Hussein, Timothy McVeigh, Unibomber Lower support: DP v. LWOP v. possibility of parole Young defendant Felony murder cases / accomplice to the crime (very low support) Also note: death penalty is very rare. And people not supporting the death penalty can’t be on the jury. So there is something different from answering the generic Gallup Poll question and voting for death. Baumgartner, POLI 203, Spring 2018

A dynamic dyad-ratios algorithm (thank you, Jim Stimson) Baumgartner, POLI 203, Spring 2018

Opinion index: up from 1970s through 1995, then down. Death Penalty and general punitiveness Opinion and actual death sentences Baumgartner, POLI 203, Spring 2018

State by state variation: no impact, huh?! Regions of Texas. Houston not the highest. Baumgartner, POLI 203, Spring 2018

Baumgartner, POLI 203, Spring 2018 An opinion paradox Generally pretty high levels of support, in the abstract But very low levels of actual use Political leaders have felt the power of public opinion on this Since the mid-1990s, significant declines in support LWOP is available Crime rates have dropped Concerns about innocence / exonerations Several states have abolished, through LEGISLATIVE action, and the politicians did not get booted out. So some big shifts in the last 20 years, as compared to the earlier period Baumgartner, POLI 203, Spring 2018