1. Baumgartner, POLI 203, Spring 2018
Deadly Justice, Ch 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

2. Baumgartner, POLI 203, Spring 2018
Baumgartner, POLI 203, Spring 2018

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

4. 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

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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

6. 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

7. 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

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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

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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

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

11. 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

12. 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

13. 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

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See the Gallup web site itself. Every year they give a comprehensive update
aspx
Baumgartner, POLI 203, Spring 2018

15. 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

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

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

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

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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