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The Atlantic: Should Veterans With PTSD Be Exempt From the Death Penalty?

PTSD Photo from The Atlantic

“PTSD is a severe mental disorder that can affect intellectual and adaptive functioning, trigger flashbacks to traumatic events, and impair one’s judgment. As its name implies, it can develop after exposure to a life-threatening event….

Despite the stigma attached to PTSD, the Department of Veterans Affairs emphasizes that most veterans suffering from the condition are not violent….“It’s extremely important that we recognize that the majority of people with PTSD don’t engage in criminal and violent actions[, said Paula Schnurr, executive director of the VA’s National Center for PTSD].”

…Some legal scholars and mental health experts suggest the criminal justice system should treat convicted veterans suffering from war trauma differently than other criminals. In a 2009 Fordham Law Review article, Anthony Giardino, an attorney and former Marine, argued that veterans suffering from service-related PTSD and traumatic brain injuries should receive a categorical exemption from the death penalty. “If the death penalty is truly only for the worst offenders, justice requires that combat veterans suffering at the time of their offenses from service-related PTSD or TBI [traumatic brain injuries] not be executed or sentenced to death,” he wrote….

Giardino isn’t alone in making this argument. Mental-health experts Hal S. Wortzel and David B. Arciniegas made a similar case for exempting veterans affected by war trauma from the death penalty. Military training and combat, combined with traumatic experiences, may have an impact on aggression and behavioral control, the authors said in a 2010 article….

It’s difficult for the legal system to truly grasp what veterans with PTSD have experienced. This lack of empathy is a key obstacle to change…. Until society realizes how combat can change service members, the fate of capital defendants with combat PTSD will remain an open question.”

Should Veterans With PTSD Be Exempt From the Death Penalty?, The Atlantic, Jan. 30, 2015.

On #PleaBargaining Conferences & @Serial

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined so it allows a defendant to opt out if he publicly acknowledges he understands what he is giving up. The proposal, however, provides a layer of review to protect the innocent from being pressured into pleading guilty, while potentially encouraging fairer plea bargains through the oversight of a neutral party. It creates a record of plea-bargaining efforts, so there can be no uncertainty as to whether an offer was requested or ignored. Finally, it might help guilty people make a more informed choice about how to resolve their cases.

Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty, JAN. 22, 2015

Breaking from @NYTimes: #SCOTUS to Hear Case on Execution Drugs

“The Supreme Court on Friday agreed to decide a case on the constitutionality of the new lethal injection drug combinations that some states are using for executions.

The court agreed to hear a challenge to Oklahoma’s choice of drugs even though on Jan. 15 the court declined to stay an execution there, using the same contested drugs.

…The case the court agreed to hear on Friday, Glossip v. Gross, No. 14-7955, involves three inmates who said the state’s three-chemical protocol violated the Eighth Amendment because it posed a significant risk of terrible suffering.”

NYTimes.com, Justices to Hear Case on Execution Drugs

@NYGovCuomo: Treat 16, 17 as children, not adults, in NY #criminaljustice system

“Sixteen- and 17-year-olds would be treated as juveniles rather than adults in New York’s criminal justice system under a series of policy changes Gov. Andrew Cuomo embraced today.

The recommendations, if passed by the New York State Legislature, would mark a major shift in the state’s criminal justice system.

…The new rules would allow more options for expunging or sealing criminal convictions for younger defendants… Raising the age to qualify as an adult criminal to 18 would require building and opening new facilities throughout the state to house younger people charged with misdemeanors and felonies, according to the report from the state’s Commission on Youth, Public Safety and Justice. It would also require hiring more judges to handle the new types of cases.

Removing lifetime criminal convictions from young people’s records — and getting them out of incarceration at an early age — eventually can drive down overall criminal conviction rates and prison costs to taxpayers, according to the commission’s findings. That long-term shift is part of the goal of advocates for “Raise the Age,” the key concept explored in the report.”

Cuomo: Treat 16, 17 as children, not adults, in NY criminal justice system, Syracuse.com, January 19, 2015

#DeathPenalty Not for the Worst Crime but for the Worst Lawyer

“[The] imposition of the death penalty [is often] not so much the result of the heinousness of the crime or the incorrigibility of the defendant-the factors upon which imposition of capital punishment supposedly is to turn-but rather of how bad the lawyers [are].

A justice of the Mississippi Supreme Court [provided the following testimony] before the U.S. Senate
Judiciary Committee:

I dare say I could take every death sentence case that we have had where we have affirmed, give you the facts and not tell you the outcome, and then pull an equal number of murder cases that have been in our system, give you the facts and not tell you the outcome, and challenge you to pick which ones got the death sentence and which ones did not, and you couldn’t do it.

Although it has long been fashionable to recite the disgusting facts of murder cases to show how deserving of death particular defendants may be, [v]irtually all murders involve tragic and gruesome facts. Whether death is imposed frequently turns on the quality of counsel assigned to the accused.

– From Stephen B. Bright’s article Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer