Death Penalty Keynote: Why Mitigation Matters, Now and for the Future

This Article examines the current state of the death penalty in California and nationally through the lens of mitigation—the empathy-evoking evidence that has been a constitutional requirement to ensure individualized sentencing in the era of the modern American death penalty. It situates the discussion in the context of the extraordinary events of 2020: the Covid-19 pandemic, the heightened awareness of racial inequities reflected in the Black Lives Matter movement, and the federal execution spree in the final six months of the Trump administration. The Article began as the keynote address at California’s annual Capital Case Defense Seminar on February 13, 2021. In the spring of 2020, when the author was invited to give this keynote, no one knew what an unprecedented year was unfolding. No one anticipated that the keynote and the seminar would be virtual. While the keynote kept its focus on the author’s area of expertise (mitigation evidence in death penalty cases), it expanded to reflect on the pandemic, the emergence of Black Lives Matter, and the federal execution spree. The months of research that went into the keynote made it relatively straightforward for the author to transform a speech into a carefully documented Article. Nonetheless, the author has kept some of the colloquial tone of the original address in order to capture the unique framework for understanding the death penalty in California and nationally in 2021. For more than four decades, capital defense training in California and across the country has stressed the importance of developing humanizing evidence based on the diverse frailties of humankind, evidence that at once provides to the accused the effective representation guaranteed by the Sixth Amendment and to jurors the evidence that they need to make the reasoned moral decision they are asked to render in capital cases and without which there cannot be reliable results. Capital punishment had its ascendency in the 1990s when executions resumed in California. Annual death sentences and executions reached their highest numbers both in California and across the country. However, the trends reversed around the turn of the century. The requirement of mitigating evidence to ensure fairness and individualized sentencing was a built-in, self-destructive part of the modern American death penalty. The thirteen federal executions in the final six months of the Trump administration and in the midst of the pandemic were arbitrary and lawless, as prisoners were executed in spite of intellectual disability, mental illness, meritorious legal claims, and powerful evidence of remorse and rehabilitation. Some had spotless or near spotless records during their years on death row. In recent years, we have also seen many other examples of prisoners who were sentenced to death, or to die in prison without hope of parole, who have led exemplary lives after securing their release. The Supreme Court of the United States enabled the federal execution spree, overturning stays issued by numerous federal courts below and suggesting that, at least for now, we have lost the legal battle over the death penalty. However, the death penalty has become a damaged brand, increasingly abandoned by state after state, prosecutors, juries, and the American public. I submit that we are winning the narrative battle

\u3ci\u3eLockett\u3c/i\u3e Symposium: \u3ci\u3eLockett v. Ohio\u3c/i\u3e and The Rise of Mitigation Specialists

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led nonlawyers (and a few lawyers) to the role of mitigation specialists. In Part III, the article concludes by examining the further recognition that mitigation specialists have received in the 21st century, from court decisions to the revision of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (in 2003) and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (in 2008). This development coincides with a wider appreciation of the need for individualized sentences in noncapital cases, following the High Court’s decisions ending rigid federal sentencing guidelines and mandatory life without parole sentences for crimes committed by children. Mitigation specialists, meanwhile, are here to stay

Mitigation Reports in Capital Cases: Legal and Ethical Issues

The mitigation investigation that is essential in every capital case requires a multidisciplinary team. The duty to conduct this investigation is clearly established federal law, as well as an ethical obligation of counsel. The mitigation evidence that is uncovered is of vital importance to the rights of the individual accused of a capital offense, but also to reliable outcomes since all decisionmakers—including prosecutors, jurors, and judges—need the most complete and accurate picture of the person facing the punishment of last resort. This Article discusses some of the unique legal and ethical issues affecting the documentation of this investigation. The Authors address two specific problems: the changing landscape of discovery rules over the extraordinarily long life of a capital case from pretrial litigation to federal habeas corpus review, and the nature of mitigating evidence itself. The ubiquity of trauma in the capital client population affects the dynamics of disclosure of mitigating evidence and can explain apparent inconsistencies arising from these dynamics. There are no simple solutions to these problems, but capital defense teams have an obligation to adopt thoughtful strategies based on an awareness of these complexities

Sexual Risk Behaviors for HIV/AIDS in Chuuk State, Micronesia: The Case for HIV Prevention in Vulnerable Remote Populations

BACKGROUND: After the first two cases of locally-acquired HIV infection were recognized in Chuuk State, Federated States of Micronesia (FSM), a public health response was initiated. The purpose of the response was to assess the need for HIV education and prevention services, to develop recommendations for controlling further spread of HIV in Chuuk, and to initiate some of the prevention measures. METHODOLOGY/PRINCIPAL FINDINGS: A public health team conducted a survey and rapid HIV testing among a sample of residents on the outer islands in Chuuk. Local public health officials conducted contact tracing and testing of sex partners of the two locally-acquired cases of HIV infection. A total of 333 persons completed the survey. The majority knew that HIV is transmitted through unprotected sexual contact (81%), injection drug use (61%), or blood transfusion (64%). Sexual activity in the past 12 months was reported among 159 participants, including 90 females and 69 males. Compared to women, men were more likely to have had multiple sex partners, to have been drunk during sex, but less likely to have used a condom in the past 12 months. The two men with locally acquired HIV infection had unprotected anal sex with a third Chuukese man who likely contracted HIV while outside of Chuuk. All 370 persons who received voluntary, confidential HIV counseling and testing had HIV negative test results. CONCLUSIONS/SIGNIFICANCE: Despite the low HIV seroprevalence, risky sexual behaviors in this small isolated population raise concerns about the potential for rapid spread of HIV. The lack of knowledge about risks, along with stigmatizing attitudes towards persons infected with HIV and high risk sexual behaviors indicate the need for resources to be directed toward HIV prevention in Chuuk and on other Pacific Islands

Lessons for non-VA care delivery systems from the U.S. Department of Veterans Affairs Quality Enhancement Research Initiative: QUERI Series

The U.S. Veterans Health Administration (VHA) may have a very different structure and function from the organizations and practices that provide medical care to most Americans, but those organizations and practices could learn a lot from the VHA's Quality Enhancement Research Initiative (QUERI). There are at least six topics of increasing importance for implementation research where QUERI experience should be of value to other non-VHA organizations, both within and external to the United States: 1) Researcher-clinical leader partnerships for care improvement; 2) Attention to culture, capacity, leadership, and a supportive infrastructure; 3) Practical economic evaluation of quality implementation efforts; 4) Human subject protection problems; 5) Sustainability of improvements; and 6) Scale-up and spread of improvements

Development of Resistance towards Artesunate in MDA-MB-231 Human Breast Cancer Cells

Breast cancer is the most common cancer and the second leading cause of cancer death in industrialized countries. Systemic treatment of breast cancer is effective at the beginning of therapy. However, after a variable period of time, progression occurs due to therapy resistance. Artesunate, clinically used as anti-malarial agent, has recently revealed remarkable anti-tumor activity offering a role as novel candidate for cancer chemotherapy. We analyzed the anti-tumor effects of artesunate in metastasizing breast carcinoma in vitro and in vivo. Unlike as expected, artesunate induced resistance in highly metastatic human breast cancer cells MDA-MB-231. Likewise acquired resistance led to abolishment of apoptosis and cytotoxicity in pre-treated MDA-MB-231 cells. In contrast, artesunate was more cytotoxic towards the less tumorigenic MDA-MB-468 cells without showing resistance. Unraveling the underlying molecular mechanisms, we found that resistance was induced due to activation of the tumor progression related transcription factors NFκB and AP-1. Thereby transcription, expression and activity of the matrix-degrading enzyme MMP-1, whose function is correlated with increased invasion and metastasis, was up-regulated upon acquisition of resistance. Additionally, activation of the apoptosis-related factor NFκB lead to increased expression of ant-apoptotic bcl2 and reduced expression of pro-apoptotic bax. Application of artesunate in vivo in a model of xenografted breast cancer showed, that tumors growth was not efficiently abolished as compared to the control drug doxorubicin. Taken together our in vitro and in vivo results correlate well showing for the first time that artesunate induces resistance in highly metastatic breast tumors

Exploring the interpersonal-, organization-, and system-level factors that influence the implementation and use of an innovation-synoptic reporting-in cancer care

<p>Abstract</p> <p>Background</p> <p>The dominant method of reporting findings from diagnostic and surgical procedures is the narrative report. In cancer care, this report inconsistently provides the information required to understand the cancer and make informed patient care decisions. Another method of reporting, the synoptic report, captures specific data items in a structured manner and contains only items critical for patient care. Research demonstrates that synoptic reports vastly improve the quality of reporting. However, synoptic reporting represents a complex innovation in cancer care, with implementation and use requiring fundamental shifts in physician behaviour and practice, and support from the organization and larger system. The objective of this study is to examine the key interpersonal, organizational, and system-level factors that influence the implementation and use of synoptic reporting in cancer care.</p> <p>Methods</p> <p>This study involves three initiatives in Nova Scotia, Canada, that have implemented synoptic reporting within their departments/programs. Case study methodology will be used to study these initiatives (the cases) in-depth, explore which factors were barriers or facilitators of implementation and use, examine relationships amongst factors, and uncover which factors appear to be similar and distinct across cases. The cases were selected as they converge and differ with respect to factors that are likely to influence the implementation and use of an innovation in practice. Data will be collected through in-depth interviews, document analysis, observation of training sessions, and examination/use of the synoptic reporting tools. An audit will be performed to determine/quantify use. Analysis will involve production of a case record/history for each case, in-depth analysis of each case, and cross-case analysis, where findings will be compared and contrasted across cases to develop theoretically informed, generalisable knowledge that can be applied to other settings/contexts. Ethical approval was granted for this study.</p> <p>Discussion</p> <p>This study will contribute to our knowledge base on the multi-level factors, and the relationships amongst factors in specific contexts, that influence implementation and use of innovations such as synoptic reporting in healthcare. Such knowledge is critical to improving our understanding of implementation processes in clinical settings, and to helping researchers, clinicians, and managers/administrators develop and implement ways to more effectively integrate innovations into routine clinical care.</p