Texas. the country's most prolific user of the death penalty, is looking to set some guide rails on executions

Texas has removed 32 people from death row based on evidence of intellectual disability since Atkins v. Virginia. Yet despite the rulings making those executions unconstitutional, no case or federal law outlines the standards states should use to determine which defendants qualify as intellectually disabled, leaving that process to state courts and appeals, reported The Texas Tribune.

Several states already have codified the exemption from death sentences for intellectually disabled inmates and created standards for determining who is eligible. Texas, however, has not codified the exemption or a process to discern who is exempt. The lack of guidance is not for a lack of trying: Texas House Rep. Senfronia Thompson, D-Houston, has been trying to push the state toward a framework for years, especially as the new administration potentially eyes rollbacks.

In multiple sessions, Thompson has filed a bill that would codify the exemption, as well as create a separate, pretrial jury hearing for those charged in capital cases to discern whether they legally qualify as intellectually disabled. After the Supreme Court ruled against Texas in 2019, the bill briefly picked up some Republican backing before failing in the Senate.

“We're not plowing new ground, because other states have done this, are doing this, and have been doing it for a while,” Thompson said. “We're trying to eliminate a patchwork situation.”

Now called House Bill 688 in the 2025 legislative session, Thompson said her team estimates the cost of the pretrial hearing would be about $250,000. While the cost may seem expensive initially, Thompson stressed it could circumvent the more expensive death penalty trials, which counties would have to pay millions of dollars through the trial and appeal process.

Currently, a ruling determining a defendant is intellectually disabled is done on an “ad-hoc basis,” said Burke Butler, executive director of the Texas Defender Services. The nonprofit organization provides legal representation for death penalty defendants, having won five Supreme Court cases in its 30-year history and removing 44 defendants from death row since 2018.

Butler said HB 688 provides a streamlined process to determine a defendant's eligibility at a single point in the trial.

“This is an issue that really requires and deserves a separate hearing to determine whether someone has intellectual disability,” Butler said.

Thompson clarified HB 688 is not a statement on the ethical or financial responsibility the state has for death sentences, but a guardrail it needs to ensure it’s being constitutionally applied.

“We're not saying that because it costs X number of dollars we shouldn't do this,” Thompson said. “We're saying that if we're going to do this and that issue is raised, there should be a pre-trial hearing helped by a jury utilizing the current medical data.”

Boosting the use of lethal injections

Donald Trump’s executive order directs the attorney general to take “all necessary and lawful action” to ensure states that use lethal injection for death sentences have a sufficient supply. Many states, including Texas, that use lethal injection as a means of execution have laws in place shielding public knowledge of who supplies the drugs to states.

In the past decade, Texas has struggled to acquire and maintain adequate amounts of pentobarbital, the drug used for lethal injections, as pharmaceutical companies have stopped providing it to governments for use in executions. Officials from the Texas Department of Criminal Justice declined requests for comment on the executive order or its ability to secure lethal injection drugs.

For Texas to maintain its stock of the drug, officials turned to a variety of means, including retesting current supply for its potency to push back expiration dates. The practice resulted in multiple lawsuits from Texas inmates because of the risk of painful executions.

In 2023, an Austin judge went as far as to issue a temporary injunction hours before an execution, stating TDCJ’s use of its pentobarbital “is probably illegal to possess or administer because it is more likely than not expired.” That ruling was overturned by the Texas Criminal Court of Appeals.

Texas also has looked to local compounding pharmacies — where drugs are created on-site using necessary ingredients — to make up for the shortage. A 2024 NPR investigation found one compounding facility in San Antonio provided pentobarbital to the state from 2019 to 2023 while receiving several citations from the Texas State Board of Pharmacy for failing to maintain sterile compounding environments.

Yet even with enough of the unexpired drug available, using it may also clash with recent federal findings. Days before Trump’s inauguration, former U.S. Attorney General Merrick Garland issued a memorandum suspending the federal single-drug lethal injections alongside a Department of Justice report that concluded the method likely caused painful pulmonary edema in executed individuals. Texas is one of seven states listed using the same method described in the report, which likened the sensation of induced pulmonary edema to waterboarding.

Because the memorandum affects only federal executions, states that use the single-drug protocol can still execute inmates with that method. On Feb. 5, Texas is scheduled to be the first state in the U.S. since the DOJ’s advisory was issued to execute an inmate with a single-dose lethal injection.

“Doubling down”

The only element of the executive order that directs the attorney general toward specific charges for potential defendants outlines two cases in which the death penalty should especially be sought: noncitizens illegally present in the country who commit capital crimes and anyone who kills law enforcement officials.

In Texas, capital murder is currently the only crime eligible for the death penalty, which includes the killing of police officers or firemen. Whether or not the death penalty is sought, however, is at the discretion of district attorneys, and the executive order does not require state attorneys to follow the new guidance.

A short section of the order also instructs the attorney general to accept or deny pending requests for certifications for the State Capital Counsel Mechanism Certification, for which Texas is currently the only applicant.

The certification allows states to fast-track habeas corpus petitions — which challenge the legality of an inmate’s incarceration — in capital cases, but states can only be certified if they prove they have a robust state-provided process for post-conviction representation. No state has ever received the opt-in certification, and Butler said Texas simply lacks the infrastructure to qualify.

“There are a couple of stages of proceedings in state habeas where people aren't entitled to counsel at all in Texas, and that has dire consequences for defendants in those proceedings,” Butler said.

With the state legislative session underway alongside the start of the new federal administration, much is still uncertain as to how the executive order will be received by Texas officials, but the current gaps in the state’s provisions have some worried how the two will mix.

“All of these things really point to the fact that you need a careful and comprehensive system for ensuring robust representation and ensuring that people's legal claims are addressed,” Butler said. “It's just very concerning that the administration is doubling down on the system that we know is so unjust.”

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Creators: Trump's Death Penalty Order a Challenge to the 8th Amendment

Matthew T. Mangino
Creators
January 28, 2025

The first Trump administration carried out more executions than any president in at least a century. Shortly after being sworn in for a second time, President Donald Trump signed an order to expand the death penalty.

It should come as no surprise that a second Trump Department of Justice will seek capital punishment more often under his administration. That would be a clear break from the prior administration.

Former President Joe Biden declared a moratorium on executions when he took office. He campaigned in 2020 on ending the federal death penalty. Legislation proposing to end state-sponsored death failed to gain any traction in Congress during the Biden administration.

During his final days in office, Biden thwarted Trump's plan to resume executions by commuting the death sentences of 37 of the 40 men on federal death row.

Biden knew what was coming. Under the first Trump administration, the federal government carried out 13 executions in a little more than six months following a 17-year pause.

The federal executions of 2020 included: the first federal execution in 57 years for a crime committed in a state that had abolished the death penalty; executions carried out against the wishes of the victims' families; and the first lame-duck executions in more than a century.

After losing his bid for reelection, Trump oversaw six executions during the presidential transition period, more than any other administration in the history of the United States. Prior to 2020, the federal government carried out only three executions in the modern era of the death penalty. This time around, Trump will have only three inmates to choose from on death row, and it is unlikely that any federal death sentence imposed during his tenure will be eligible for execution before he leaves office.

In the past, the U.S. attorney general had wide latitude in deciding whether to seek the death penalty in individual cases. Trump's order instructs the office to pursue federal jurisdiction and seek the death penalty, "regardless of other factors," for people who murder a law enforcement officer or who are in the country illegally and commit a capital crime.

More troubling is the portion of Trump's order that addresses the 37 men whose death sentences were commuted to life without parole. The order provides, "[T]he Attorney General shall take all lawful and appropriate action to ensure that these offenders [commuted persons] are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose."

Is Trump suggesting torture or something akin to it — like feeding inmates bread and water and locking them in tiny, unsanitary cells without interaction with others; no exercise; no contact with the outside world?

Miriam Gohara, a clinical professor of law at Yale Law School, told The Marshall Project the president's order raises legal concerns. "The punishment is being incarcerated. The punishment is not the condition of confinement. That's not legal," she said.

"The Eighth Amendment prohibits cruel and unusual punishment," Robin Maher, the executive director of the Death Penalty Information Center, told NPR. "There are limitations, both under the Constitution and international standards, that prohibit keeping people in torturous conditions."

"Are they going to intentionally put some sort of atmosphere in place that is intolerable?" added Gohara. "I can't imagine that is actually something that they could carry out. On the other hand, I don't want to underestimate them either."

Professor Gohara is right. Don't underestimate Trump. The U.S. Constitution may not be enough to constrain the new Department of Justice. On Day 1, Trump also declared that he wants to eliminate "birthright citizenship," a sacrosanct constitutional right adopted more than 150 years ago and delineated in the 14th Amendment.

How about the 22nd Amendment's limitation on presidential terms? With President Trump, everything is on the table.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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PA prosecutors want statewide ban on machine gun conversion devises

The Pennsylvania District Attorneys Association (PDAA) called on state lawmakers to help find solutions for several public safety concerns, which includes adopting a statewide ban on machine gun conversion devices, also known as “switches.” These devices enable shooters to unload an entire magazine of bullets in a couple of seconds, reported WJET-TV in Erie, Pennsylvania. 

The PDAA says machine gun conversion devices are inexpensive, easily obtained by criminals, and can be manufactured with 3D printers.

The letter cites the March 2024 after-school shooting at a SEPTA bus stop in Northeast Philadelphia, where three teenagers used a machine gun conversion device and eight high school students were severely injured. Philadelphia Police say one of the teenage shooters had a switch on a .40 caliber handgun, which allowed him to shoot 23 rounds in less than two seconds.

While the devices are illegal under federal law, most of the gun cases in Pennsylvania are prosecuted on the county or state level. This, the PDAA argues, is why the organization is asking lawmakers to give state prosecutors “the tools they need to get these devices off the streets and stop endangering our law enforcement officers, who simply do not have the same firepower as criminals carrying these machine gun-like weapons.”

To read the full letter, click here.

A modern day 'Saturday Night Massacre'--DOJ employees who investigated Trump fired

Acting Attorney General  James McHenry fired several Department of Justice (DOJ) employees Monday for having played a “significant role in prosecuting President Trump,” according to the memo obtained by CNN, as reported in Jurist.

The memo sent to the employees gave them formal notice of their immediate removal from their position at the DOJ, and from the federal service, stating that the trust needed to implement the president’s agenda faithfully was broken. McHenry justified the actions by citing Article II of the Constitution, acknowledging Trump’s executive power as president.

The lawyers who were terminated all formally worked with Special Counsel Jack Smith. Smith was appointed by Attorney General Merrick Garland in November 2022. Smith and his team conducted two separate criminal investigations of President Trump while in office. Smith, who resigned from his position earlier this month, attempted to take sole responsibility for these prosecutions in his Final Report as Special Counsel on January 7:

While I relied greatly on the counsel, judgment, and advice of our team, I want it to be clear that the ultimate decision to bring charges against Mr. Trump was mine. It is a decision I stand behind fully. To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant. After nearly 30 years of public service, that is a choice I could not abide.

Smith also denied that any external or internal influences motivated these prosecutions. Former US Attorney Joyce Vance, an NBC News legal contributor, addressed the matter with the news source stating, “Firing prosecutors because of cases they were assigned to work on is just unacceptable. It’s anti-rule of law; it’s anti-democracy.” These prosecutions were dropped in November for Trump’s then impending inauguration. 

Although the number of individuals who have been affected by this decision is still not clear, it is estimated that there have been more than a dozen employees fired. As stated at the end of the termination memo, those fired may have a right to appeal the removal with the US Merit Systems Protection Board within 30 days of the effective date.

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Incompetent Missourian inmates wait up to 14 months for mental health treatment

In Missouri some people who are arrested and found incompetent to stand trial are ordered into mental health treatment designed to allow them to have their day in court — a process called competency restoration that generally includes therapy and medication.

However, the average time these individuals wait in jail before receiving treatment is 14 months, according to the Missouri Independent.

Efforts to remedy the problem in the 2023 legislative session, including through a pilot program and increasing outpatient competency restoration, have been slow to get off the ground. 

Greene County, which was included in the pilot program, decided not to participate. Clay County’s program was in operation for just three weeks last year before staff turnover put it on pause. 

Only three people are currently enrolled in the jail-based treatment pilot program statewide, according to Debra Walker, a spokesperson for the state's Department of Mental Health. And only one person is currently in the outpatient treatment program.

Walker said the agency is working on solutions but “none of them will impact the numbers quickly.”

Last year, Department of Mental Health Director Valerie Huhn told the House budget committee the problem would get much worse before it gets better. 

“It’s probably going to be 1,000 individuals,” Huhn said, “long before we’re at 100 individuals.”

‘Deprives them of humanity’   

Mary Fox, the director of the Missouri State Public Defender system, said the wait times for mental health treatment are the worst she’s seen. She has been going to courthouses throughout the state trying to get some of the cases dismissed.

Public defenders have identified at least 12 cases of individuals in Missouri being held longer than their maximum sentences would have been, Fox said, without receiving competency restoration.

“It's gotten so bad that people aren't getting any treatment within the time period of when their case should be over and done with,” Fox said.

One client was having paranoid delusions and called the police himself, convinced he was being watched. The police then arrested him because his license plate was expired and because he didn’t stop driving when they put on their lights. 

Fox said he’s waited in jail for longer than he would’ve for the maximum sentence on those two charges.

In a recent case filing, Fox called detention beyond the maximum sentence “unconstitutional, illegal and improper.”

Walker said the agency is “aware of such circumstances.”

“Individuals are admitted in the order in which the court order is received, and admissions are triaged based upon clinical acuity,” she said, adding that DMH is also working to provide medication and case management to individuals while in jail, through mobile teams of clinicians.

While individuals wait in jail, their mental health often deteriorates, said Annie Legomsky, who runs the state public defense system’s holistic defense services program. 

Many are placed in solitary confinement, isolated for 23 or 24 hours a day, she said, and can end up with irreparable damage.

“It just completely deprives them of humanity, and it’s the antithesis of anything you could call a therapeutic environment,” she said. “We see clients who do just really sad things like eating their own feces, having suicidal ideation and actions, who are just completely decompensating.”

And there isn’t anything those individuals can do: Their case is on hold until they’re restored to competency to stand trial, so they can’t get released after they’ve waited the maximum sentence.

“They can't do anything to, kind of, control their fate,” Legomsky said. “They're at the mercy of (the Department of Mental Health) getting them the treatment they need.” 

In states including Oklahoma, Kansas, and Washington, lawsuits filed by groups like the American Civil Liberties Union over similar wait times have succeeded, arguing the practice violates individuals’ rights to due process and the Americans with Disabilities Act. 

So far, similar litigation hasn’t been filed in Missouri. A spokesperson for the ACLU of Missouri declined to comment. 

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Will Trump defy SCOTUS as his executive orders get overturned?

 David French writing for The New York Times:

Let’s briefly make our way through Trump’s birthright citizenship order. It’s extraordinarily broad. It doesn’t just block citizenship for children of illegal immigrants, it also blocks citizenship for children whose parents are legally present in the United States if they don’t have permanent status when their child is born.

This contradicts the language of the 14th Amendment, a controlling federal statute and Supreme Court precedent. The 14th Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Children of illegal immigrants are quite plainly subject to American jurisdiction. They’re bound by American law every moment they’re on American soil. As Steve Vladeck, a law professor at Georgetown, explained in an excellent and comprehensive Substack post, the phrase “subject to the jurisdiction thereof” was meant to exclude children of diplomats, children of Native Americans who were subject to tribal sovereignty, and “children born of alien enemies in hostile occupation.”

These principles were outlined in an 1898 Supreme Court case called United States v. Wong Kim Ark. But one doesn’t have to rely entirely on a precedent more than a century old. As Vladeck points out, in a 1982 case called Plyler v. Doe, the court held that “no plausible distinction with respect to 14th Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Three years later, in Immigration and Naturalization Service v. Rios-Pineda, the court observed that the undocumented immigrant parents in the case “had given birth to a child, who, born in the United States, was a citizen of the country.”

Trump may try to claim in court that undocumented immigrants are an invading, occupying force. Indeed, one of the executive orders he signed after taking office asserted that America is facing an “invasion” at the hands of migrants on its borders. Can he deem them hostile occupiers and deny their children citizenship?

No. As James Madison said in The Report of 1800, the term “invasion” applies to an “operation of war.” Any other reading of the term reaches an absurd and dangerous result. If economic migrants are “invaders,” can they be targeted with drone strikes? Gunned down at the border by the 82nd Airborne Division? Can we suspend habeas corpus to stop immigrants? Obviously not. Several federal courts of appeal have reached the same, sensible conclusion. Illegal immigration is not an invasion.

I can undertake a similar legal analysis of many of Trump’s executive orders (though not all are legally deficient). Trump’s order purporting to block enforcement of the law banning TikTok is almost comically illegal. It contradicts the plain language of the statute, and presidents do not have the constitutional power to rewrite statutes by executive fiat.

But this legal analysis skips a key question: Will Trump comply with the rulings of the Supreme Court? Or will he disregard rulings he doesn’t like, demand that the executive branch bend to his will, and then pardon the men and women who might criminally defy the Supreme Court?

If you think this scenario is far-fetched — yet another example of “pearl clutching” by hysterical Never Trumpers — remember that in 2021 JD Vance said in a podcast, “I think that what Trump should do, like if I was giving him one piece of advice, fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts — because you will get taken to court — and then when the courts stop you, stand before the country, like Andrew Jackson did, and say: ‘The chief justice has made his ruling, now let him enforce it.’”

Jackson’s statement is probably apocryphal. His own response to the Supreme Court was far more complex than the quote implies, but Vance’s intent is obvious. He was signaling that Trump could defy the nation’s highest court.

Vance stood by that idea in 2024, and now — in 2025 — Trump has fundamentally rebuked the American justice system by ordering the pardon and release of more than 1,500 people lawfully charged for their role in arguably the most dangerous insurrectionary act since the Civil War.

I continue to hope that Trump will begin to behave as he did before he attempted to steal the 2020 election. As The Times’s Adam Liptak reported in 2023, “the Trump administration had the worst Supreme Court record of any since at least the Roosevelt administration.” Yet Trump did not defy the court. Time and again, he lost and then complied with the rulings.

But 2020 was different. He lost every important court case challenging the outcome of the election, yet rather than yield to the rule of law (as Al Gore did when he faced a bitter Supreme Court defeat in 2000), he lied to the American public, tried to illegally cling to power and instigated a mob.

Trump’s pardons tell us that we’re far more likely to experience the President Trump of 2020 (and especially 2021) than the President Trump of 2017 to 2019. As National Review’s Noah Rothman argues, Trump is already planting the seeds of more political violence.

“Republicans who support these pardons,” Rothman writes, “will sacrifice the moral authority they would have needed if they were to convincingly argue for the preservation of domestic tranquillity.”

Rothman is right. Trump’s friends can commit acts of violence on his behalf. Trump’s enemies have to face danger on their own. And that reality hovers over every presidential decision Trump makes.

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Idaho legislator wants firing squad state's only form of execution

 A Nampa legislator wants to make death by firing squad the primary way of administering the death penalty in Idaho, reported the Idaho Capital-Sun. 

Rep. Bruce Skaug, R-Nampa, introduced the legislation to the Idaho House Judiciary, Rules and Administration Committee on Tuesday. The committee voted to introduce the legislation, clearing the way for a public hearing before the committee at a later date. 

Lethal injection is the primary way of administering the death penalty in Idaho. Death by firing squad became legal in Idaho in 2022, when Skaug successfully sponsored House Bill 186 and Gov. Brad Little signed it into law, citing challenges in obtaining lethal injection drugs. 

During the 2022 legislative session, the Idaho Legislature passed House Bill 658, which gives the suppliers and manufacturers of lethal injection chemicals confidentiality. That law, which Little signed in March 2022, also prevents that confidential information from being disclosed in court filings, the Sun previously reported.

Skaug said his new bill would not take effect until July 2026 to give the Idaho Department of Correction time to refurbish a facility for firing squad purposes. It would have no fiscal impact to the state’s budget, Skaug said, because the 2022 legislation already appropriated $750,000 to the Department of Correction to refurbish the facility. 

“This bill is not about whether the death penalty is good or bad …” Skaug told the committee. “Our job is to make sure to carry out the most efficient manner under the bounds of the Constitution.”

There are nine people on death row in Idaho, according to the Idaho Department of Correction’s website.

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Trump's view of those federal prisoners with commuted death sentences is alarming

Shortly after being sworn in, President Donald Trump signed an order to expand the death penalty, confirming a widespread expectation that the Department of Justice may seek capital punishment more often under his administration, reported The Marshall Project. The first Trump administration carried out more executions than any president in at least a century. But legal experts say the order is short on details about how the administration will carry out its plans in the face of legal and bureaucratic barriers.

“This executive order is lacking in so many important details that it’s hard to know exactly what’s intended by some of these statements. Much of it sounds more like campaign rhetoric than policy statements,” said Robin Maher, executive director of the Death Penalty Information Center, a nonprofit organization that researches and analyzes the issue.

Pam Bondi, Trump’s nominee for attorney general, fought to maintain death sentences when she was attorney general in Florida.

In the past, the U.S. attorney general has had wide latitude in deciding whether to seek the death penalty in individual cases. Trump’s order instructs the office to pursue federal jurisdiction and seek the death penalty, “regardless of other factors,” for people who murder a law enforcement officer or who are in the country illegally and commit a capital crime.

But Maher said it would be “unprecedented and contrary to established law” for prosecutors to seek a federal death sentence for every capital crime where the defendant is an undocumented immigrant.

Stories about Trump administration policies affecting criminal justice and immigration, and the president’s own criminal cases.

Republicans in Congress and state legislatures have long sought to expand use of the death penalty for people who kill police. Under federal law, jurors can consider the targeting of law enforcement as an “aggravating factor” in deliberating over the death penalty when the victim is a federal agent, judge or corrections officer. Several U.S. senators recently introduced the Thin Blue Line Act, which would add local and state police officers, firefighters and other first responders to the law.

Miriam Gohara, a clinical professor of law at the Yale Law School, said the most striking piece of Trump’s order regarded the people who had their sentence commuted from death to life in prison. Before leaving office, Biden commuted the sentences of 37 people. Trump’s order said the attorney general should ensure that those people are “imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”

Gohara said that raises legal concerns. “The punishment is being incarcerated. The punishment is not the condition of confinement. That's not legal,” she said.

People in maximum-security facilities already face harsh conditions, like the use of solitary confinement. “Are they going to intentionally put some sort of atmosphere in place that is intolerable?” said Gohara. “I can't imagine that is actually something that they could carry out. On the other hand, I don't want to underestimate them either.”

Trump’s order also said officials will explore whether some of the people whose sentences were commuted can be charged in state courts and receive new death sentences that way. But Gohara was skeptical that prosecutors would spend precious resources on decades-old cases where the person was already in a federal prison for life.

While the Trump administration has no jurisdiction over state cases, the president’s order says the federal government will work to ensure that states can keep killing people on death row by helping local governments obtain drugs for lethal injection.

Pharmaceutical companies have been refusing to supply corrections agencies with the deadly drugs, citing moral and business concerns. Some states have abandoned executions, while others have explored alternative ways to kill people, including firing squads and gas chambers.

​The order also instructs the attorney general to work to overthrow Supreme Court precedents that “lim­it the authority of state and fed­er­al gov­ern­ments to impose capital punishment.” The order does not reference specific cases, but this could be an allusion to Supreme Court rulings that limit the death penalty when the person convicted was under 18 at the time of the crime or has an intellectual disability. It could also refer to Supreme Court rulings that death sentences are inappropriate in cases where the victim does not lose their life. There have recently been efforts in states like Florida to allow capital punishment for the rape of a child.

While the order directs federal prosecutors to seek the death penalty more often, there is no guarantee that they will succeed in any individual case. Roughly half of Americans still support the death penalty in various polls, but a growing number reject it in individual cases when serving as jurors. The decline in support owes to a mix of interrelated factors: changing societal views on mental illness and intellectual disability, aggressive efforts by defense lawyers to present defendants’ childhoods as mitigating factors and reluctance by prosecutors to seek the punishment in the first place. Last year, 26 people were sentenced to death in state and federal courts across the country, compared with a peak of more than 300 a year in the mid-1990s, according to the Death Penalty Information Center.

President dead wrong on birthright citizenship

The president of the United States does not have the lawful power to end birthright citizenship, reports The New Republic. That did not stop President Donald Trump from trying to do just that in one of his first executive orders on Inauguration Day. The order itself is strangely written—partly out of necessity and partly out of ideology. If the Constitution’s words still matter, it will fail in the federal courts.

The order, titled “Protecting the Meaning and Value of American Citizenship,” seeks to redefine the Fourteenth Amendment. The amendment’s language on citizenship is straightforward: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The “subject to the jurisdiction” exception is typically taken to mean the children of foreign diplomats.

In the Trump administration’s telling, however, everyone’s been getting it all wrong for the last 150 years. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” the order stated. “Consistent with this understanding, the Congress has further specified through legislation that ‘a person born in the United States, and subject to the jurisdiction thereof’ is a national and citizen of the United States at birth.” Accordingly, it laid out additional categories of American-born citizens whom it hopes to exclude.

The first and most important thing to note about the order is that it is not retroactive. Nobody currently living in the United States is affected by it at this moment, no matter their parentage or lawful presence. Instead, it says that it “shall apply only to persons who are born within the United States after 30 days from the date of this order.” In other words, the first children affected by it will be born on or after February 19.

From there, the order says it applies to any child whose mother “was unlawfully present in the United States” or “whose mother’s presence in the United States was lawful but temporary,” so long as the father is also neither a U.S. citizen nor someone with lawful permanent status. In other words, a child born to at least one parent with lawful permanent residence or U.S. citizenship would be unaffected by its restrictions. (The emphasis on the mother’s presence may be meant for cases where a father is not listed on birth records.)

The overall intent appears to be to transform American citizenship law from jus soli—a Latin term for when children acquire citizenship from the soil on which they are born, so to speak—to a solely jus sanguinis system where citizenship is passed down solely by dint of ancestry and blood. That would represent a sharp break with historical practice and shift the U.S. toward the Old World’s approach to nationality.

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Creators: Keeping Sex Offenders Beyond Their Sentence

Matthew T. Mangino
Creators Syndicate
January 22, 2024

Twenty states, the District of Columbia, and the federal government have laws allowing for continued incarceration of some convicted sex offenders after they finish serving their criminal sentences.

The laws, commonly referred to as civil commitment statutes, seem an affront to basic ideals of justice, due process and human dignity.

The admissions processes for civil commitment programs vary from state to state, according to a recent article in Harper's Magazine. In most cases, when a person incarcerated for a sex offense approaches the end of his or her sentence, prosecutors can appoint a psychological evaluator to assess whether he or she should be classified as a sexually violent predator (SVP).

The findings of the evaluation are sent to the court where a determination is made whether the person meets the legal criteria of the respective SVP statutes.

If the offender meets the criteria, he or she may remain in prison indefinitely — for some it could for years after they "paid their debt to society."

According to the Williams Institute of the University of California, Los Angeles, there are more than 6,300 men, and some women, locked up across the country who have served their complete sentence for a crime committed years ago.

There are approximately 322 sex offenders currently being held indefinitely in New York who have completed their criminal sentences. By most estimates, Pennsylvania has a handful, and neighboring Ohio has zero.

Civil commitment is not new. The procedure has been used for decades with regard to the mentally ill and those with highly contagious diseases. More recently, it has been applied to sex offenders with a diagnosable mental abnormality with a likelihood to re-offend.

In 1997, the U.S. Supreme Court found that civil commitments were an appropriate state action. In Kansas v. Hendricks, the high court upheld the Kansas Sexually Violent Predator Act. The court found that the statute violated neither the double jeopardy clause, punishing an offender for the same crime twice, nor ex post facto, punishment through a law applied retroactively.

The high court held that a civil commitment statute is lawful if it protects individuals from being detained past the time they are no longer dangerous or no longer have a mental illness.

In 2006, the federal government entered the civil commitment business. Congress passed the Adam Walsh Child Protection and Safety Act, which gave the federal government authority to seek civil commitment of "sexually dangerous persons" already held in its custody. That authority, in turn, allowed the government to seek to have individuals who are either completing federal prison sentences or incompetent to stand trial remain in federal custody indefinitely as a result of their "sexually dangerous" status.

In order to secure the continued detention of an individual completing his sentence, the government must demonstrate by clear and convincing evidence that the individual "is a sexually dangerous person." If the federal government can prove that, the individual is committed without a specific period of detention, possibly for life.

There are few advocates for sex offenders, particularly those offenders who have been classified as still dangerous. It's easy and even comforting to take a "throw away the key" position.

In addition, the cost is enormous. New York is spending more than $55 million per year, or $175,000 to confine each person. Minnesota has the highest population of civilly committed offenders per capita in the nation, and the lowest rate of release. Costs have soared as well. According to The New York Times, it costs about $125,000 per resident per year, at least three times the cost of an ordinary prison inmate in Minnesota.

For that kind of money, there should be a more thorough vetting process and a transparent proceeding for committing and keeping an offender who has already served his time.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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Trump, as promised, pardons Jan. 6 insurrectionist

 US President Donald Trump issued pardons Monday to around 1,500 people convicted for their roles in the January 6th, 2021 Capitol attack, where rioters stormed the legislative building seeking to disrupt the certification of the 2021 election. Alongside the full pardons, Trump commuted the sentences of 14 other January 6th defendants, including Oath Keepers leader Stewart Rhodes, who will be released but retain their convictions. Trump also directed the Justice Department to drop outstanding charges against all other Capitol attack defendants.

While signing the pardons, Trump referred to the defendants as “hostages” and said that his administration is doing “further research” on those who have had their sentences commuted.

Among those who have received full pardons is Proud Boys leader Enrique Tarrio, whose mother announced his release on social media. Tarrio was convicted of seditious conspiracy and conspiracy to obstruct an official proceeding in 2023. Prosecutors said Tarrio directed and encouraged the actions of Proud Boy Capitol rioters despite not being present in Washington DC at the time.

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January 20, 2025: Trump Presidency 2.0 Begins

Donald J. Trump was inaugurated as the 47th president of the United States in Washington, D.C. Only Trump and Grover Cleveland have been elected to nonconsecutive terms (1885-1889 and 1893-1897).

Kansas public defenders: Huge caseloads, lower pay and now less funding

Public defenders in Kansas face borderline unethical caseloads, lower pay rates than peers and now the possibility of even less funding to address attorney shortages, reported News from the States.

Heather Cessna, executive director of the Kansas Board of Indigents’ Defense Services, or BIDS, painted a picture for the Senate Judiciary Committee at its first meeting Tuesday of a state struggling to keep up with high case volumes, an aging workforce and economic pressures. 

BIDS requested an additional $10 million from the Legislature this year to adequately compensate public defenders to avoid turnover and hire more lawyers to allow for ethical caseloads. 

Instead, the special legislative budget committee wants to cut $7 million from the BIDS budget, according to House Bill 2007, which was introduced Monday and sponsored by committee chairman Rep. Troy Waymaster, R-Bunker Hill. 

Ultimately, Kansas does not have enough “experienced, qualified and available” attorneys willing to take on BIDS cases, Cessna told lawmakers. About 84% of adult criminal cases in Kansas are BIDS cases.

Clients and lawyers alike are frustrated, Cessna said, “and I field those phone calls daily.”

In Sedgwick County, home to Wichita, attorneys from outside the county are called to travel in to represent indigent defendants. In Shawnee County, where BIDS has two offices, attorneys spent 2024 refusing to take on more cases to maintain professional and ethical caseload levels. In Johnson County, public defenders are inundated with cases, even with a fully staffed public defender’s office and a back-up cache of private attorneys, Cessna said.

“In counties with fewer attorneys, that only gets worse,” she said.

A judge appoints a public defender to a criminal case when a defendant cannot afford representation. It’s a right embedded in the U.S. Constitution, and when that right is in jeopardy due to attorney shortages, like those in Kansas and jurisdictions across the country, the consequences are serious, Cessna said.

Without an attorney, cases are delayed. Evidence can be lost.

“If you have a constitutional requirement to have an attorney representing these people, and you don’t have an attorney standing in that courtroom next to that person, then that case has to get dismissed,” Cessna said.

More than half of Kansas counties have 10 or fewer lawyers and even fewer who specialize in criminal defense. One-third of lawyers in Kansas are over the older than 60, signaling a swath of soon-to-be retirees. 

Freshman Republican Sen. TJ Rose, an insurance agent from Olathe, wondered if compensating private attorneys who take on public defense cases at a rate of $250 an hour instead of $120 an hour would alleviate the shortage. 

Steve Leben, a retired Kansas Court of Appeals judge and a University of Missouri-Kansas City School of Law professor, wrote Monday on social media platform X that higher compensation rates for private attorneys could “lessen or eliminate” the shortage.

“But the most effective solution economically and for professional representation is properly funding public defenders,” he said.

Cessna said private attorneys are also subject to the same ethical caseload standards as public defenders, and there isn’t the same oversight and quality control capabilities as with direct employees.

Kansas remains in a better position than some other states, which have seen courts forced to dismiss criminal cases due to a lack of attorneys and, therefore, an inability to fulfill constitutional obligations. 

Still, challenges persist.

“There is no question” cutting BIDS’ funding will escalate a situation that has already reached a crisis point, Cessna told Kansas Reflector.

“I think we’re going to have difficulty paying bills,” she said.

Kansas Supreme Court Chief Justice Luckert told reporters Wednesday that the proposed $7 million budget cut would be “amazingly significant.”

“The result of that is that it slows processing cases,” Luckert said. “Basically, what we have to do is wait. There are caps on the number of cases that an attorney can take to be able to be effective in those cases. If they’ve reached those caps, the court just has to wait until the attorneys are able to help with that.

“And that means, oftentimes, people sitting in jail for undue amounts of time.”

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RFK, Jr. asked FDA to revoke Covid vaccines during deadly phase of pandemic

Robert F. Kennedy Jr., President-elect Donald J. Trump’s choice to lead the nation’s health agencies, formally asked the Food and Drug Administration to revoke the authorization of all Covid vaccines during a deadly phase of the pandemic when thousands of Americans were still dying every week, reported The New York Times.

Mr. Kennedy filed a petition with the F.D.A. in May 2021 demanding that officials rescind authorization for the shots and refrain from approving any Covid vaccine in the future.

Just six months earlier, Mr. Trump had declared the Covid vaccines a miracle. At the time Mr. Kennedy filed the petition, half of American adults were receiving their shots. Schools were reopening and churches were filling.

Estimates had begun to show that the rapid rollout of Covid vaccines had already saved about 140,000 lives in the United States.

The petition was filed on behalf of the nonprofit that Mr. Kennedy founded and led, Children’s Health Defense. It claimed that the risks of the vaccines outweighed the benefits and that the vaccines weren’t necessary because good treatments were available, including ivermectin and hydroxychloroquine, which had already been deemed ineffective against the virus.

The petition received little notice when it was filed. Mr. Kennedy was then on the fringes of the public health establishment, and the agency denied it within months. Public health experts told about the filing said it was shocking.

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New Jersey Governor wants to reduce locking up technical parole violators

New Jersey officials would return potentially hundreds fewer parole violators to prison and cap how long they could be held under changes Gov. Phil Murphy will announce in his annual state of the state address next week, reported the New Jersey Monitor.

Murphy will urge lawmakers to pass legislation that would reduce how many people get hauled back to prison for technical parole violations, which is when someone violates the conditions of their parole rather than commits a new crime. Between 1,100 and 1,200 parolees are in state custody on any given day for technical parole violations.

“Right now, roughly 10% of our state’s entire prison population consists of people who are being held behind bars for committing a technical parole violation, like missing a scheduled meeting or forgetting to report a move to a new town,” Murphy is expected to say in his speech Tuesday afternoon at the Statehouse in Trenton. “Nobody should lose their freedom because of a technicality.”

The state Parole Board decides who is granted parole, under what conditions, and when, as well as whether to charge someone with a parole violation that will land them back in prison. Murphy included $1 million in the current state budget — which runs through June — for a consultant to examine how those decisions get made, although that work hasn’t yet started.

New Jersey law gives the parole board little discretion.

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AG nominee: 'The investigators will be investigated'

Donald Trump’s pick to lead the Justice Department, Pam Bondi, faced questions on Capitol Hill Wednesday over her loyalty to the Republican president-elect, who has vowed to use the agency to pursue revenge on his perceived political enemies, reported The Associated Press.

The former Florida attorney general and corporate lobbyist told lawmakers on the Senate Judiciary Committee that politics would play no part in her decision-making as the country’s chief federal law enforcement officer, but also refused to rule out the potential for investigations into Trump’s adversaries.

If confirmed to lead the department that charged the once and future president in two separate criminal cases, Bondi would become one of the most closely scrutinized members of Trump’s cabinet.

She’s a close Trump ally and long-time defender

Bondi has been a fixture in Trump’s orbit for years, and a regular defender of the president-elect on news programs amid his legal woes.

“The Department of Justice, the prosecutors will be prosecuted — the bad ones,” Bondi said in a 2023 Fox News appearance. “The investigators will be investigated.”

As Democrats repeatedly questioned Wednesday whether she would maintain a Justice Department that’s independent from the White House, Bondi insisted that “no one should be prosecuted for political purposes.” But she also refused to say what she would do if the president directed her to drop a case or answer whether she would investigate Jack Smith, the Justice Department special counsel who charged Trump.

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Tulsa Race Massacre not a mob but 'coordinated, military-style attack'

The Tulsa Race Massacre of 1921, in which a prosperous Black neighborhood in Oklahoma was destroyed and up to 300 people were killed, was not committed by an uncontrolled mob but was the result of “a coordinated, military-style attack” by white citizens, the Justice Department said in a report, according to The New York Times.

The report, stemming from an investigation announced in September, is the first time that the federal government has given an official, comprehensive account of the events of May 31 and June 1, 1921, in the Tulsa neighborhood of Greenwood. Although it formally concluded that, more than a century later, no person alive could be prosecuted, it underscored the brutality of the atrocities committed.

“The Tulsa Race Massacre stands out as a civil rights crime unique in its magnitude, barbarity, racist hostility and its utter annihilation of a thriving Black community,” Kristen Clarke, assistant attorney general for civil rights, said in a statement. “In 1921, white Tulsans murdered hundreds of residents of Greenwood, burned their homes and churches, looted their belongings and locked the survivors in internment camps.”

No one today could be held criminally responsible, she said, “but the historical reckoning for the massacre continues.”

The report’s legal findings noted that if contemporary civil rights laws were in effect in 1921, federal prosecutors could have pursued hate crime charges against both public officials and private citizens.

Though considered one of the worst episodes of racial terror in U.S. history, the massacre was relatively unknown for decades: City officials buried the story, and few survivors talked about the massacre.

The Justice Department began its investigation under the Emmett Till Unsolved Civil Rights Crime Act, which allows the agency to examine such crimes resulting in death that occurred before 1980. Investigators spoke with survivors and their descendants, looked at firsthand accounts and examined an informal review by the Justice Department’s Bureau of Investigation, the precursor to the F.B.I. In that 1921 report, the agency asserted that the riot was not the result of “racial feeling,” and suggested that Black men were responsible for the massacre.

The new 123-page report corrects the record, while detailing the scale of destruction and its aftermath. The massacre began with an unfounded accusation. A young Black man, Dick Rowland, was being held in custody by local authorities after being accused of assaulting a young white woman.

According to the report, after a local newspaper sensationalized the story, an angry crowd gathered at the courthouse demanding that Mr. Rowland be lynched. The local sheriff asked Black men from Greenwood, including some who had recently returned from military service, to come to the courthouse to try to prevent the lynching. Other reports suggest the Black neighbors offered to help but were turned away by the sheriff.

The white mob viewed attempts to protect Mr. Rowland as “an unacceptable challenge to the social order,” the report said. The crowd grew and soon there was a confrontation. Hundreds of residents (some of whom had been drinking) were deputized by the Tulsa Police. Law enforcement officers helped organize these special deputies who, along with other residents, eventually descended on Greenwood, a neighborhood whose success inspired the name Black Wall Street.

The report described the initial attack as “opportunistic,” but by daybreak on June 1, “a whistle blew, and the violence and arsons that had been chaotic became systematic.” According to the report, up to 10,000 white Tulsans participated in the attack, burning or looting 35 city blocks. It was so “systematic and coordinated that it transcended mere mob violence,” the report said.

In the aftermath, the survivors were left to rebuild their lives with little or no help from the city. The massacre’s impact, historians say, is still felt generations later.

In the years since the attack, survivors and their descendants and community activists have fought for justice. Most recently, a lawsuit seeking reparations filed on behalf of the last two known centenarian survivors was dismissed by Oklahoma justices in June. In recent years, Tulsa has excavated sections of a city cemetery in search of the graves of massacre victims. And in 2024, the city created a commission to study the harms of the atrocity and recommend solutions. The results are expected in the coming weeks.

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In Texas 'tough on crime' impacts the guilty as well as the innocent

Politicians like Greg Abbott and Ken Paxton project an image of being tough on crime, but they’re also tough on those who are innocent, per a year-end report from the Texas Coalition to Abolish the Death Penalty, as reported by The Austin Chronicle.

The annual report tells the stories of several individuals who faced execution in 2024 despite evidence that they were not guilty of the crime for which they were convicted. Three of the eight people the state planned to execute this year tried to present evidence of innocence. The state killed Ivan Cantu on Feb. 28, despite evidence not heard by his trial jury – or any court – which demonstrated that the main witness against him lied on the stand about important details of the case. In July, Ruben Gutierrez received a last-minute stay from the U.S. Supreme Court, which agreed to decide whether he should be allowed to sue the state of Texas to compel them to conduct DNA testing on items involved in his conviction. Gutierrez has said for years that such testing will show he is innocent. The state of Texas has fought the testing every step of the way.

The most glaring example of that kind of intransigence was the case of Robert Roberson. Roberson was convicted in 2003 of killing his chronically ill 2-year-old daughter Nikki on the basis of the dubious medical hypothesis known as “Shaken Baby Syndrome,” now regarded in many circles as junk science. Roberson’s advocates have tried for years to get Texas’ criminal justice system to consider evidence showing that Nikki died of undiagnosed pneumonia, not being shaken. The courts have refused to grant him a new trial. Gov. Greg Abbott, Attorney General Ken Paxton, and the members of the Board of Pardons and Paroles have supported his execution.

The Texas Supreme Court stayed the execution on Oct. 17 at 9:45pm, four hours after it was to have begun, to allow the Texas House Committee on Criminal Jurisprudence to bring Roberson to the Capitol to testify on his innocence. Paxton stopped the testimony last month, allowing the Texas Department of Criminal Justice to ignore a subpoena from the committee. Roberson’s supporters expect another execution to be set for him in the coming year.

In two other death penalty cases, courts decided that Melissa Lucio and Kerry Max Cook were innocent of the crimes for which they were convicted. The Texas Court of Criminal Appeals is considering whether to accept the recommendation of Lucio’s trial court and overturn her death sentence. She remains locked up as she awaits the decision. Cook was officially exonerated by the TCCA nearly 50 years after his conviction and is now free.

The TCADP’s report shows that Texas juries are continuing to sentence fewer and fewer people to death. Only six new people were sent to death row this year. However, as death sentences decline, they continue to be applied disproportionately to people of color. Five of the six men sentenced to death this year are people of color: three are Black, one is Hispanic, one is Native American. According to the report, nearly 70% of death sentences over the last five years have been imposed on people of color. More than 40% were imposed on Black defendants. This disparity hasn’t changed over the years. Although Black people constitute about 13% of Texas’ population, they represent 47% of death row.

But the total number of people awaiting execution is down. As of Dec. 16, TDCJ lists 174 people on the row, the lowest number since 1985.

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ABA Journal's Top Words in Law for 2024

The ABA Journal's Top Words in Law for 2024 include catchy ways to describe minimal workplace attendance and expert-witness conferences, according to the list recently unveiled by Burton’s Legal Thesaurus.

Law360 has the story on the top new words, chosen by a select committee led by Margaret Wu, a professor at the University of California at Berkeley School of Law, who teaches legal writing.

According to Law360, the words include:

  • “Coffee badging,” in which a worker shows up at the office for a minimal amount of time to comply with in-person work mandates.

  • “Hot-tubbing,” in which expert witnesses for both parties in a bench trial discuss the case with a judge in an attempt to reach agreement. The procedure is also known as “concurrent expert evidence.”

  • “Word salad,” meaning nonsensical verbiage.

  • “Cybersmear,” which is online defamation, usually contained in an anonymous post.

  • “AI washing,” which is misleading advertising regarding the effectiveness of an artificial intelligence product.

Other AI-related terms include “slop” and “sea of junk,” which refers to poor-quality AI content.

Wu told Law360 that her colleagues and William C. Burton, the creator of Burton’s Legal Thesaurus, look for terms that were brand-new in the past year, that changed in meaning, or that took on different importance.

“We go through and try to find words that we think are interesting and seem to be growing in popularity and words that we think would be helpful for both practicing lawyers as well as legal scholars to be aware of,” Wu said.

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Professor files legal brief challenging lethal injection for condemned man who wants executed

Death by lethal injection looks like the condemned person just went to sleep. But looks can be deceiving, reported the AZMirror.

Anesthesiologists know that an overdose of pentobarbital, the barbiturate used for executions by lethal injection in Arizona and other states, renders the prisoner unresponsive — but not necessarily fully anesthetized — before it kills by “flash pulmonary edema.”  

The drug causes part of the heart to fail, makes the brain obstruct breathing and floods the lungs with fluid. Autopsies show that the lungs of prisoners executed with pentobarbital are two to three times heavier than normal. 

In short, the prisoner drowns in his or her own body fluids, which one expert told the federal courts in a 2019 deposition is “one of the most powerful, excruciating feelings known to man.”

Lethal injection was once thought to be the least painful, most humane form of execution. Now, experts liken it to waterboarding, a form of torture considered too cruel to use in wartime.

To be specific, eight of the 27 autopsies cited in that 2019 deposition were of men executed in Arizona. Aside from problems inserting IV catheters in some of the executions, there were no apparent signs reported of what the anesthesiologist called “outward calm, inner terror.”

Virginia law professor Corinna Barrett Lain filed an amicus curiae, or “friend of the court” brief, advocating for condemned Arizona prisoner Aaron Gunches, who doesn’t want anyone advocating for him.

Gunches is on Death Row for the 2002 murder of Ted Price, his girlfriend’s ex-husband, and he has repeatedly petitioned the courts to go forward with his execution, saying he would rather be dead than rot in prison.  

the Arizona Supreme Court is supposed to set a briefing schedule that will likely lead to a death warrant so that Gunches’ execution can go forward.  

On Dec. 30, Gunches, who is representing himself in the case, filed a handwritten motion asking the court to forgo the formality of briefing and just set an execution date to “have his Long Overdue Sentence carried out.”

“Gunches asks this court why is AG (Kris) Mayes’ motion necessary?” he wrote. “It is pointless and just more ‘foot dragging’ by the state.”  

In a response filed Monday, Mayes’ office held firm on the formality of briefing.

But Lain argues in her brief that Gunches may not know what he is in for.

“Arizona is asking for a death warrant, and Mr. Gunches apparently agrees,” she said in an interview with the Arizona Mirror. “But the interests at stake when a state kills its citizens — in your name, and mine — are larger than those of the parties. One might very well support the death penalty and oppose executions in the name of expediency that inflict a torturous death.”

Lain is a former prosecutor and a professor at the University of Richmond School of Law.  She spent seven years researching lethal injection for her book, “Secrets of the Killing State: The Untold Story of Lethal Injection,” which will be published in April.

Her amicus brief covers the pain likely inflicted by pentobarbital overdose (a subject that has not yet been litigated in Arizona), the history of troublesome and botched executions in the state and Gov. Katie Hobbs’ sudden dismissal of an independent investigation into the state’s execution processes in favor of a report the Department of Corrections, Rehabilitation & Reentry conducted on itself.

Whether Lain’s argument will sway the justices — or Gunches— remains to be seen.

Gunches is adamant that he would rather die, and he almost succeeded once. In 2022, then-Arizona Attorney General Mark Brnovich, who had already overseen the executions of three prisoners in the last year of his tenure while running for U.S. Senate, obtained a death warrant for Gunches. But he didn’t have enough time in his term for the execution to take place.

When Hobbs became governor and Mayes became attorney general in January 2023, they let the warrant run out and appointed David Duncan, a retired federal magistrate judge, to evaluate the state’s troubled lethal injection protocol.

Lain starts her brief with Mayes’ remarks at the time.

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country,” as Mayes told the media. “I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.”

Indeed, there had been botched executions, repeated difficulties in setting IV lines, instances in which the Corrections department tried or succeeded in importing drugs illegally from other countries and failures to be transparent.

In that brave new administration, executions were put on hold, indefinitely. Or so it seemed.

But Maricopa County Attorney Rachel Mitchell intervened, asking the Arizona Supreme Court to let her carry out the death warrant, so that justice could go forward, even though the state constitution reserves that job for the AG.  Nonetheless, after two years of back and forth, the high court was willing to entertain arguments on the matter.

In December, Duncan, the independent investigator, sent a summary of his preliminary findings to Hobbs — and was summarily fired.

In a preamble of sorts to his unfinished draft report, he listed all the reasons the death penalty is impractical  — expense, long waits, exonerations — but then gets to the matter at hand: the disaster that is lethal injection. 

Among the findings, as Lain points out, were “‘Corrections officials seeking to learn on the eve of an execution what doses of lethal drugs to administer from Wikipedia.’ That’s outrageous.”

Pharmaceutical companies will not supply drugs for executions, so corrections departments have to have them custom-made or “compounded.”

Lain adds, “In 2023, (Corrections Director Ryan) Thornell went on record saying he had ‘serious concerns about the qualification and competency of the compounding pharmacist and the process used to compound the current supply of lethal injection drugs.’ Today, the State tells Arizona’s highest court not that it changed compounders, but that it changed its mind. The very same compounder that it had ‘serious concerns’ about two years ago is now just fine.”

A completed report promised to be scathing, and Duncan even suggested that death by firing squad, as barbaric as it is, was less likely to be botched than lethal injection.

“The ending of a life and overcoming that person’s will and biological command to live is by nature a violent act in every case — even lethal injection,” he wrote in a parenthetical aside.

Duncan suggested to reporters that he was fired after he asked about witnessing execution rehearsals conducted by Corrections staff, and after discovering that the executioners were paid tens of thousands of dollars in cash that the state was not reporting with proper tax documentation.

“Arizona has a long history of execution failures,” Lain said. “Against that backdrop, in 2023, the state promised to bring transparency and accountability to the execution process by conducting an independent review of its entire lethal injection process, but that review was terminated before the judge could complete it.”

But there had also been a political shift since the beginning of the Hobbs administration.  Mayes settled with Mitchell and said executions would go forward under the aegis of her office.  And Donald Trump, who had 13 federal prisoners executed during the last year of his first term, was coming back into office, already enraged about outgoing President Joe Biden commuting the death sentences of most of the prisoners on federal Death Row. Executions, after all, are one way that politicians prove to voters that they are tough on crime. It might have been awkward for Arizona to go forward with them after a particularly damning report commissioned during an earlier, more enlightened political moment.

Instead, Hobbs offered up an assessment by Thornell, who assured her that the department he leads had improved its team and its control over the drugs it procures to carry out executions.

“This is a new team, a team that wasn’t here in the past where we had botched executions,” Hobbs told the media. “And the whole point of doing the thorough review that has been done is to avoid that.”

Lain is not convinced.

“The initial draft summary prepared by the judge identified seriously problematic processes,” Lain said.

“Instead, the state relies on a review it conducted of itself, and says “trust us,” everything is fine.”

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