Law Professor and Instapundit Glenn Reynolds reviews Scott Turow's new book Ultimate Punishment at his MSNBC weblog Glenn Reynolds.com today. Glenn succinctly describes Turow's main points:

...regardless of whether the death penalty is moral or not as applied to the guilty, everyone agrees that it’s wrong to execute the innocent. And, he says — echoing Charles Black — the innocent often wind up being executed. What’s more, as Turow demonstrates, prosecutors aren’t always above stretching a point to obtain a conviction...

But it's Glenn, not Turow, who makes the astute observation:

One needn’t, however, be soft on criminals to pick up on another point that Turow himself doesn’t raise: If death penalty cases, subject to far more rigorous safeguards than ordinary criminal cases, still manage to convict the innocent, how many innocent people are convicted of crimes that don’t carry the death penalty? Far too many, I would imagine. Some of the safeguards proposed for death penalty cases — like requiring that all questioning of suspects by police be videotaped, or that all defendants have access to DNA evidence that might clear them — should be applied to criminal cases across the board.

Peter Neufeld, co-founder and co-director of the Innocence Project, echoes this point in an interview with New Scientist.com :

There are wrongful convictions everywhere in the world. The US probably has one of the fairest criminal justice systems, but nevertheless we have seen how easy it is to make mistakes. It is certainly terrible to execute people who are innocent but it's not a hell of a lot better keeping them in prison for the rest of their lives. If you are innocent you are innocent and you don't belong there.

We wrote at length about Turow's involvement with capital punishment and his new book here. [link fixed]

The ACLU is filing a lawsuit today in federal court in Ohio to force prisons to make public the entire exeuction process. First off, they're not talking about live television coverage of executions, although that will likely be the subject of future suits brought by the media.

At issue today is the process of inserting the IV needles into the condemned person's arm. The ACLU says the prisons are doing this in private--when the inmate is brought into the execution chamber to be killed in the presence of media and witnesses, the needles have already been inserted. The ACLU says the public doesn't get to see how painful the needle insertion procedure is to the inmate:

"What they've done is taken the process of judicially taking a man's life and reduced it to a minor surgical procedure," he said.

Getting killed is painful, even when it's by lethal injection. First there's the needle insertion process. Then there's the sharp burning of some of the chemicals. It's not just peacefully dozing off into a sleep from which you don't awake. The ACLU wants people to know this. Courts in California and Oregon, for example, have already agreed with them.

We have mixed feelings on this. We think if the inmate objects on privacy grounds to having his pain and discomfort made public, his wishes should be accorded respect. On the other hand, executions are open to the media so that the public can be accurately informed about the killing. Bottom line for us: the need for accuracy in reporting on executions favors the ACLU's position.

Massachussetts has long been a state without a death penalty. If Governor Mitt Romney has his way, that may end. Romney announced today he has commissioned experts to draft a death penalty bill for the state.

Putting aside what you believe about capital punishment, this is just stupid in the current economic climate. Are Massachussetts citizens doing that well that they can afford the cost of $1-3 million per death penalty case--as opposed to a cost of $25-$30,000 per year to incarcerate an offender for life?

If we were citizens of Massachussets, we'd vote this Republican Governor out at the next election, and replace him with someone who has a higher regard for our hard-earned dollars.

Update: The Albany-Times Union ran this article on the cost of the death penalty Sunday:

Precise costs are difficult to pin down, but estimates suggest New Yorkers have spent more than $160 million during the past seven years prosecuting, defending and trying capital murder cases, which are exponentially more complex and protracted than ordinary felonies.

New York prosecutors are seeking fewer executions--recognizing that enthusiasm for the death penalty is waning.

Among the reasons, according to one D.A.:

...prosecutors had come to understand that the suffering of murder victims' relatives is often prolonged in death-penalty cases because of the years of legal warfare. He said prosecutors were also keenly aware of the drain on their time and energy and the cost to the state.

"Particularly at a time of fiscal crisis," Mr. Brown said, "it is very difficult to justify taking experienced prosecutors away from handling other violent felonies."

The trend in New York is being mirrored around the country.

Across the country, other state prosecutors appear to be seeking the death penalty less often than they did in the 1990's, said Richard C. Dieter, executive director of the Death Penalty Information Center, a group that says it is critical of the way the death penalty is carried out but takes no position on whether capital punishment should be permitted. Mr. Dieter said that evidence in Ohio, California, North Carolina and other states showed that state prosecutors have been seeking death less often.

"There is definitely a trend in other states, and the time line is very much the same" as it is in New York, with state prosecutors filing sharply fewer death penalty cases than they did in the late 1990's, Mr. Dieter said.

On the other side, behind the curve as always, is Attorney General John Ashcroft, who has directed his federal prosecutors to seek the death penalty more often--even when they recommended against it.

Update: From Saturday's Boston Globe article on death penalty opponents blasting Ashcroft for trying to nationalize the death penalty:

An Islamic appeals court decision is due next week in the case of Amina Lawal , the Nigerian woman sentenced to death by stoning under Islamic Shariah law for adultery. Protests in Nigeria and South Africa are mounting and getting louder. Here's the latest.

President Thabo Mibeki told Parliament yesterday that the government must let the court process run its course.

For background and details, go here.

Cheers for The Boss, Bruce Springsteen. An opponent of the death penalty, Springsteen allowed an anti-death penalty group to have a booth at his North Carolina concert this past Saturday. He did the same in 2000.

When Springsteen played shows in Charlotte and Raleigh in 2000, he dedicated a song each night to the statewide death penalty abolition group and encouraged the audience to support it. Before the shows, PFADP volunteers met members of the E Street Band and Springsteen met with PFADP's executive director.

"Bruce Springsteen makes the connection between the lives portrayed in his songs and the ones reflected in our death penalty system in North Carolina: people struggling through hard lives, a random few of whom are extinguished by this broken, corrupt system we call capital punishment," said PFADP Executive Director Stephen Dear. "We are grateful that he is willing to make this statement time and again. We only wish he did not have to."

What a news article to wake up to on a Sunday: Saudi Arabia Beheads Marijuana Smuggler

A Saudi drug trafficker was beheaded Sunday, a Ministry of Interior statement said. Dhaher bin Thamer al-Shimry was convicted of smuggling marijuana into the kingdom...

The Saudis have beheaded 41 people so far this year, mostly for drug offenses. Last year the total was 49. It makes us nervous that Bush and Ashcroft keep asking for more death penalty-eligible offenses and that Orrin Hatch's "Victory Act" equates many drug offenses with terrorism, providing for correspondening penalties (under the rubric that they are "narco-terrorist" offenses.)

While the U.S. won't be advocating beheadings, re-read the article substituting "executed by lethal injection" for "beheaded" and it is not that far-fetched that it could happen here. Bob Barr used to call for the death penalty for drug traffickers.

Right now the death penalty for drug offenders is reserved for those that intentionally cause, command or counsel death in connection with their drug enterprises. How big a stretch is it for the government to increase its ambit further, bit by bit? First up might be meth manufacturers who deposit toxic byproducts from the lab by the roadside--then who knows?

Ten inmates facing texecution will get new hearings to determine if they are mentally retarded.

The Supreme Court banned executing the mentally retarded in June, 2002. Since then, 28 Texas death row inmates have been granted rehearings.

A North Carolina court has stayed the Friday execution of Henry Lee Hunt so that his claim that the state plans to use an illegal drug, potassium chloride, in killing him can be reviewed by the courts. Potassium chlorid stops the heart from beating. The North Carolina statute specifies the use of two drugs for executions, a barbituate and a drug that causes paralysis. The ruling could impact all the prisoners on death row.

Potassium chloride is a very caustic and burning drug if given while the person is still awake. Here is more on the lethal cocktail of execution drugs.

Hunt claims he is innocent. In 1989, a co-defendant signed an affidavit admitting to the killing and stating that Hunt was not involved in the murder. The Judge refused to hear that claim. But now that a stay has been granted, his lawyers will appeal the ruling.

Death and Justice, released Tuesday, is a new book exposing the corruption and injustice in the application of the death penalty in Oklahoma. The big surprise to us is the book's principal author: Former OJ cop, Mark Fuhrman.

We spoke with Fuhrman for about 20 minutes last night while we were both in the green room at Fox News in New York waiting to go on Hannity and Colmes. We are delighted to report that he is close to being born-again on the topic of the injustice in the death penalty system. He began the project as a death penalty supporter, thinking any mistakes that were made were few and far between and unintentional. He ended up believing the system is so untrustworthy, there should be a national moratorium until it can be determined whether the system can be fixed.

Fuhrman made four trips to Oklahoma while writing the book and interviewed dozens of officials, prosecutors and defense attorneys. Furman said he couldn't believe what these officals told him--and they weren't even ashamed.

Fuhrman said he absolutely believes there are more innocent people on death row in Oklahoma. He was shocked at what he found. In our conversation, he talked a lot about Joyce Gilchrist, the discredited police chemist. 11 people have been executed based on her work. Here's a paragraph from the book about Gilchrist (link below):

In 2001, the same year that the state of Oklahoma was executing inmates at an unprecedented rate, a series of high-court rulings, of ficial investigations, memos, and reports, as well as the usual chorus of outraged defense attorneys, had criticized Gilchrist for lying under oath "enhancing "the value of the evidence in her testimony and mismanaging the OCPD crime lab. Gilchrist had been a forensic chemist for more than twenty years. She had worked on more than fifteen hundred felony cases. Cops and prosecutors loved her; defense attorneys didn't.

"Joyce Gilchrist is a kick-ass expert witness, "Assistant District Attorney Richard Wintory told me. "That's why everybody is out to get her."

"Joyce Gilchrist is the most lyingest, cheatingest bitch on this earth, " said one prominent Oklahoma defense attorney …

Fuhrman told us there's only two options: Either Gilchrist is an incompetent chemist or a corrupt one. Either way, he said, the 1.500 felony cases she worked on are suspect.

You can read an excerpt of Chapter One of Furman's book, Frontier Justice, here.

We are impressed with Fuhrman and the work he did on this book. People change. We've met Fuhrman before and debated him numerous times, sometimes cordially, sometimes not--but we believe he's for real and we hope the book is a huge success--we 're glad to have him on our side on this one. The innocent people on death row in America really need this story told.

Death and Justice:
An Expose of Oklahoma's Death Row Machine
by Mark Fuhrman and Stephen Weeks

Those of you who don't regularly read The Washington Times may have missed the launch of a four-month series of the "Funky Winkerbean" comic (it started Labor Day and runs until Christmas) focusing on capital punishment. It raises a range of issues including ineffective assistance of counsel, jail house snitches, mistaken eye-witness identification, clemency, and more.

The comic, syndicated by King Features, runs in four hundred papers nationally. Those who can't find it locally can read it on a two-week delay on their web page, here.

From the press release:

"FUNKY WINKERBEAN" ADDRESSES THE ISSUE OF CAPITAL PUNISHMENT

National Syndicated Comic Strip Sheds a Personal Light on the Death Penalty

According to the U.S. Department of Justice, Bureau of Justice Statistics, 38 states and the federal government have capital statutes. Beginning on Monday, September 1, the controversial subject of capital punishment will be explored in more than 400 newspapers nationwide - not in the news section, but on the comics pages. The nationally syndicated comic strip Funky Winkerbean, created by cartoonist Tom Batiuk, will introduce a gripping four-month storyline, entitled "The Danny Madison Casebook," examining the complex personal issues behind a death penalty case.

Following a 2002 Supreme Court decision that ruled only juries, not judges, can decide to sentence a defendant to death, the 9th Circuit Tuesday invalidatead the death sentences of upwards of 100 inmates in California, Montana and Arizona, by finding the Supreme Court's decision applied retroactively to those on death row when the case was decided.

In an 8-3 vote, the San Francisco-based 9th U.S. Circuit Court of Appeals said all condemned inmates sentenced by a judge should have their sentences commuted to life in prison.

...."By deciding that judges are not constitutionally permitted to decide whether defendants are eligible for the death penalty, the Supreme Court altered the fundamental bedrock principles applicable to capital murder trials," Circuit Judge Sidney R. Thomas wrote for the court.

Defense attorneys hailed the verdict.

Oliver at Liquid List has this to say about the decision:

Add this ruling to the Pledge decision, the Citizens For Better Forestry decision, the Lo v. Ashcroft decision, and many other recent rulings, and you have a court that actually cares about civil rights, the Constitution, the environment, and other ideals that some call progressive or liberal, but I deign to call simply American.

Update: The Christian Science Monitor reports that 3,500 remain on death row....after the 100 plus 9th Circuit reprieves.