Attorney General Jeff Landry last week proposed a political red meat trifecta — bring back hanging, firing squads and electrocutions — to break the logjam of executions and bring peace to victims’ families.
The putative Republican challenger to the re-election of Democratic Gov. John Bel Edwards won accolades among conservative talk show hosts and bloggers, as expected, but also among some who have been frustrated by the dysfunction of a capital punishment scheme that hasn’t put anyone — except a volunteer — to death in 16 years.
Landry blames Edwards, but both politicians were a part of the request for what became the fourth moratorium on executions issued earlier this month by the federal court. The state doesn’t have the appropriate drugs on hand to perform a lethal injection and the pharmaceutical companies refused to sell the state more. State law says lethal injection is the only legal means to execute convicted murderers.
Change the law, Landry says.
That’s what led Landry to propose bringing back other methods of execution. It all sounds good, at least to some voters. But capital punishment in the 21st century is no longer as easy as finding a tall oak tree to string up the wicked, then retire to a local saloon to celebrate justice swift and sure.
“It’s not just about the drugs,” said James LeBlanc, secretary for the state Department of Corrections. “Post-conviction relief is a challenge in the best of times. Only two have been scheduled for executions and they’re in litigation right now.”
Seventy-one inmates — 70 men, one woman — have awaited execution in Louisiana for an average of 17 years.
Since 2002, when the last convicted murderer was put to death against his will, statistics show that condemned Louisiana inmates are six times more likely to leave death row exonerated — as in charges dismissed, free to go — than strapped to a gurney. Seven condemned inmates have died of natural causes and 51 had their death sentences vacated since the last person was executed, according to the state Department of Corrections.
True, but too small a sample to be definitive, you say?
Consider, then, an independent study that counted four out of five Louisiana death sentences being reversed between 1976 and 2015. “Among 155 resolved death-sentence cases, there have been 127 reversals (of which nine were exonerations) and 28 executions,” wrote Frank Baumgartner, of the University of North Carolina, and researcher Tim Lyman in their “Louisiana Death Sentenced Cases and Their Reversals, 1976-2015.”
“Those are potent statistics,” said Gary Clement, director of the Capital Post-Conviction Project of Louisiana, that indicate deep flaws in how the death sentences are rendered and carried out in this state.
His New Orleans-based group handles death row cases after the convictions have been confirmed. He argues that even if the proper drugs magically appeared, even if the state brought back hanging and other forms of execution, even then the state wouldn’t be lining up the 71 condemned for swift execution.
“The vast, vast majority of those people are in litigation at varying stages, right now,” Clement said. “Those legal issues would have to be resolved.”
After trial results are reviewed by the Louisiana Supreme Court, then a series of appeals are considered. When those are exhausted, inmates can begin a series of post-conviction appeals under the constitution’s habeas protections.
Those issues vary depending on the case itself. There could have been too few minorities on the jury or ineffective lawyering. The U.S. Supreme Court recently sent back two cases — one to Livingston Parish and one to Orleans Parish — to consider evidence of prosecutorial misconduct.
Some legal questions about what conditions warrant a death sentence are still evolving.
The defendant’s mental health is one.
Generally, the U.S. Supreme Court has ruled that the mentally disabled can’t be executed, but the mentally incompetent and the mentally ill can be, under certain circumstances. How all of those vague terms are defined — what IQ test level takes the death penalty off the table, for instance? — are being worked out in the courts.
Based on recent court findings, prosecutors in Montana, which hasn’t executed anyone in 21 years, last week decided to stop pursuing the death penalty for a mentally ill inmate.
“Even in a perfect scenario, it’s slow, it's cumbersome and it's expensive,” said Paul Fleming, a public defender who handles capital cases in Jefferson Parish. “A lot of things need to be fleshed out."