Written by: Frank Draper
Dear Defender Nation,
The fight against capital punishment in the United States continues. Through our dauntless advocacy, we are seeing fewer defendants sentenced to death and even fewer executions than we have seen in a long time. In 2020, the pandemic, racial justice movement, and election of reform minded prosecutors helped fuel a continuing decline in the death penalty. Despite a six-month spree of federal executions without parallel in the 20th and 21st century, fewer executions (17) were carried out in in 2020 than in any other year in nearly three decades.
As of today, only nine prisoners have been executed in the United States in 2021 by the federal government and three states. What’s more, on March 24, 2021, Virginia—the state with the most executions of any—became the 23rd state to abolish the death penalty, and the first southern state in the United States to do so.
Yet actions in the Supreme Court this week remind us of the barbarity of capital punishment. At 4:25 pm CT on Thursday, October 28, John Marion Grant became the first inmate executed by Oklahoma after nearly seven years. The execution occurred shortly after the United States Supreme Court vacated a Tenth Circuit stay of execution. The Tenth Circuit had entered an injunction in a long running lawsuit enjoining the imminent execution of John Grant and Julius Jones before, in the words of the Tenth Circuit, they are able to “present what may be a viable Eighth Amendment claim to the federal courts.” The Supreme Court’s one sentence order granted Oklahoma’s emergency request to vacate the stay without explanation. Justices Breyer, Sotomayor, and Kagan dissented.
According to news reports, almost immediately after the first drug was administered (midazolam), John Grant began “convulsing, so much so that his entire upper back repeatedly lifted off the gurney.” As convulsions continued, Grant vomited several times and medical staff had to wipe away the vomit from the still-breathing Grant.
The sedative midazolam has been at the center of a years-long lawsuit brought by more than two dozen Oklahoma death row inmates arguing that Oklahoma’s lethal injection protocol poses a risk of severe pain in violation of the Eighth Amendment. That lawsuit arose from two botched executions in 2014 and 2015 and was scheduled for trial in February 2022, after the district court had already determined based on a robust summary judgment record that there are issues of fact concerning whether the Oklahoma’s execution method presents a substantial risk of severe pain, and whether alternative methods proposed by the plaintiffs are feasible and readily implemented. On April 29, 2014, a botched execution that used midazolam left Clayton Locket writing and clenching his teeth, causing Oklahoma prison officials to halt the execution before his eventual death from a heart attack. On April 15, 2015, after being administered midazolam, Charles Warner said, “My body is on fire.” Witnesses reported they saw twitching in Warner’s neck about three minutes after the execution started that lasted for about seven minutes before he stopped breathing. But since Oklahoma’s second drug is a paralytic that would have prevented Warner from moving, “acting as a chemical veil,” according to his attorney, “we will never know whether he experienced the intense pain of suffocation and burning that would result from injecting a conscious person with vecuronium bromide and potassium chloride.”
The fight will continue.
Training and resources for federal capital trial and federal capital habeas counsel though the capital defense network (www.capdefnet.org), which includes Habeas Assistance and Training, Federal Capital Habeas Project, and Federal Death Penalty Resource Counsel.
Webinars and CLE
We are pleased to continue presenting free interactive virtual training programs to assist with your training needs and CLE fulfillment. Please check fd.org (here) for a list of upcoming programs scheduled in the coming year. Our calendar remains fluid, so please check back frequently.
Please register and save the date for our upcoming programs:
- Webinar – Dancing in the Dark: Fentanyl Analogues on November 3, 2021 at 2:00-3:15 p.m. (EDT). Register here.
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- Since fiscal year 2016, there has been a massive 5,725% increase in federal prosecutions involving fentanyl analogues. Across the country, these substances are cropping up in many different types of drugs prosecutions. But what is a fentanyl analogue, exactly? This presentation will explain what fentanyl analogues are, recommend strategies for building your defense, and identify sentencing arguments to help you advocate for lower sentences for your clients.
- Webinar – JSIN: A Defense Attorney Guide to the Commission’s New Tool on November 9, 2021 at 1:00-2:15 p.m. (EST). Register here.
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- On September 28, 2021, the U.S. Sentencing Commission publicly released the Judiciary Sentencing INformation platform, or “JSIN”. The Commission describes JSIN as a data tool “specifically developed with the needs of judges in mind.” According to the Commission, JSIN provides judges with easier access to sentencing data for “similarly-situated defendants.” In this presentation attendees will learn how JSIN works and the data it reports. We will explore JSIN’s capabilities and limitations and discuss how the tool may affect defense strategies at sentencing (and beyond).
- Webinar – Greatest Hits in Defense of Our Noncitizen Clients on November 17, 2021 at 1:00-2:15 p.m. (EST). Register here.
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- The National Immigrant Justice Center (NIJC) provides immigration advice to defenders and CJA panel attorneys across the nation and has answered common questions that occur in federal criminal cases for noncitizen clients. This webinar will provide an overview on dominant issues that defense attorneys seek advice on from NIJC, along with practical tips in defending noncitizens, including providing immigrant-safe alternatives to controlled substance, firearm, and fraud related offenses.
- Webinar – Conditionally Speaking: Challenging Standard and Special Conditions of Supervised Release on December 1, 2021 at 2:00-3:15 p.m. (EST). Save the date.
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- Although mandatory in fewer than half of cases, most defendants convicted in federal court will receive terms of supervised release in addition to their sentences of imprisonment. The conditions of supervised release imposed at sentencing will have a tremendous impact on the defendant’s life after release from imprisonment, but most are vague, overly broad, ambiguous, and unnecessary. This session will demonstrate how to successfully challenge both standard and special conditions of supervised release in the district court and on appeal.
- Webinar – Managing Your Time, Maintaining Your Boundaries on
December 9, 2021 at 1:00-2:15 p.m. (EST). Save the date.
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- For many of us, it often appears there are not enough hours in the day. This feels especially true when you find yourself doing your work, the work of others, and managing home life responsibilities. In this session, we will talk about identifying common pitfalls that contribute to our general overwhelm, and we will discuss tips for refocusing your time on your goals and priorities.
We recognize the challenges concerning the training of new defense professionals joining Defender offices or working under the Criminal Justice Act Panel. The recordings of our 13-part Fundamentals of Federal Criminal Defense program, which is primarily designed for those new to federal criminal defense practice but is a wonderful refresher for everyone, are available online.
Fd.org Updates
- Defenders Send Letter Urging Senate Leadership to Pass 4 Pending Criminal Justice Reform Bills (Oct. 28)
The Federal Public & Community Defenders sent a letter, available here, urging Senate leadership to pass four pending criminal justice reform bills: (1) The First Step Implementation Act; (2) The COVID-19 SAFER Detention Act; (3) Prohibiting Punishment of Acquitted Conduct Act; and (4) The Equal Act.
President Joe Biden on Wednesday nominated Cindy K. Chung, 46, a current federal prosecutor, to become U.S. Attorney for the Western District of Pennsylvania. Chung is the first woman to be nominated to the post by a Democratic president and the first Asian-American to be nominated.
This past month, federal sentencing statistics became even more important for defense lawyers. The U.S. Sentencing Commission released the Judiciary Sentencing INformation platform, or JSIN — a new data tool that provides judges and the public with online access to limited sentencing data for similarly situated defendants. The problem is that JSIN has deep flaws that create a misleading picture of sentencing. For example, JSIN provides averages and medians for federal sentences in the last five years, but it deliberately omits almost all lower sentences and it deliberately retains all higher sentences. Most notably, its averages and medians are only for sentences of imprisonment.
JPay, a financial services contractor serving prisons, will pay $6 million in fines and restitution to settle claims brought by the Consumer Financial Protection Bureau that it took advantage of former prisoners by forcing them to pay fees to access their own money
Check the Latest News section of fd.org for news content of interest to defense professionals and the public. You will find links to selected news stories of interest, court decisions, and summary of court cases. To receive updates on fd.org, subscribe to our RSS feeds for delivery to your RSS aggregator Outlook mailbox.
Other Resources
The Training Division is at your service Monday-Friday during business hours (ET): 800-788-9908. Please continue to let us know how we can best serve you and your clients.
Please keep in mind that the Defender Services Office has a partnership with Heartland Alliance’s National Immigrant Justice Center (NIJC) to provide training and resources to CJA practitioners around the country on immigration-related issues. Federal defenders and CJA panel attorneys can call NIJC’s Defenders Initiative at (312) 660-1610 or e-mail defenders@heartlandalliance.org with questions regarding potential immigration issues affecting your clients. A NIJC attorney will respond to the inquiry within 24 business hours.
Please feel free to share this email with your staff and members of your CJA panels.
Be well,
Frank
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Franklin W. Draper
Chief, Training Division
Defender Services Office
Thurgood Marshall
Federal Judiciary Building
One Columbus Circle, NE
Washington, DC 20544
(202) 502-3418