Some proponents of the death penalty—including the late Justice Antonin Scalia and the 2016 Republican Party platform—have asserted that the Supreme Court cannot declare the death penalty unconstitutional because the Framers included reference to the punishment in the text of the Fifth Amendment. An article by Duke Law School Professor Joseph Blocher, published in the Northwestern University Law Review, critically analyzes that argument and concludes that the Fifth Amendment's acknowledgment of the death penalty as an acceptable practice in the 1700s does not foreclose judicial review of the constitutionality of the practice under the Eighth Amendment or any other constitutional amendment. This, Blocher says, is because the Fifth Amendment contains restrictions on the exercise of government power, rather than affirmatively granting the government any constitutional power. The Fifth Amendment, Blocher writes, "contains three prohibitions on the use of capital punishment." The Grand Jury Clause prohibits the government from bringing charges against a person "for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The Double Jeopardy Clause prohibits twice placing any person "in jeopardy of life or limb" for the same offense. The Due Process Clause prohibits depriving any person "of life, liberty, or property, without due process of law." No one would argue that the mention of deprivation of limb in the Double Jeopardy Clause constitutionally legitimizes amputation as a criminal punishment. And by imposing constitutional limits on government conduct in attempting to take a defendant's life, Blocher says "there is no reason to suppose that [the Fifth Amendment] somehow nullifies other constitutional prohibitions—most importantly, the ban on cruel and unusual punishment." He notes that the Ninth Amendment reinforces this reading, "The Ninth Amendment indicates that the entire Bill of Rights—let alone any particular provision of it—cannot be read as an exclusive list. ...Compliance with the Fifth Amendment does not provide the death penalty a safe harbor against constitutional challenges, including those derived from the Eighth Amendment." Blocher concludes that to the extent reasons may exist not to abolish the death penalty, "the Fifth Amendment is not one of them."Tweet
Missouri Execution Pharmacy Calls Sale of Drugs to State Political Speech, Claims First Amendment Right to Secrecy
A pharmacy that has received more than $125,000 in cash payments from Missouri for providing lethal injection drugs that the state has used in 16 executions has argued in a court filing that its identity should remain secret, claiming that selling execution drugs to the state's Department of Corrections is political speech protected by the First Amendment. The supplier's information was requested in a subpoena by Mississippi death row inmates who are challenging that state's execution protocol, and seeking information about other state practices as part of their lawsuit. The pharmacy, which is identified in court documents as "M7," filed a motion stating that its "decision to provide lethal chemicals to the Department was based on M7’s political views on the death penalty, and not based on economic reasons. ...The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights." BuzzFeed News reports that Missouri paid the pharmacy $7,178.88 for two vials of pentobarbital per execution, which it describes as well above market value, amid concerns that the cash payments may have violated federal tax laws. Analyzing M7's claim, Bloomberg News columnist Noah Feldman described the pharmacy's constitutional argument as "deeply flawed." Feldman writes that "there’s an enormous difference between speaking and acting—particularly when that action is a for-profit commercial transaction with the government. ... [I]n a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency." M7 asserted in its filing that releasing its identity could subject the pharmacy to harassment and boycotts, relying on statements from a security consultant, Lawrence Cunningham, whose previous statements about the potential threats to execution drug suppliers have been exposed as unsupported or exaggerated. "The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business," Feldman writes. "Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them."
(C. McDaniel and C. Geidner, "Pharmacy Argues There’s A First Amendment Right To Secretly Sell Execution Drugs," BuzzFeed News, September 25, 2016; N. Feldman, "Death-Penalty Drugmaker Shouldn't Be Anonymous," Bloomberg, September 26, 2016.) See Lethal Injection.Tweet
As voters get set to cast ballots on death penalty questions in California, Nebraska, and Oklahoma, U.S. death row exonerees from across the country have been scouring those states in an effort to inform the public of the risks of wrongful executions. On September 19, 17 of the nation's 156 death-row exonerees appeared at a California press conference advocating approval of Proposition 62, which would replace the death penalty with life without parole plus restitution, and defeat of Proposition 66, which seeks to place limits on the capital appeals process. Many, including California exoneree Shujaa Graham (pictured), Florida exoneree Juan Melendez, Arizona exonerees Ray Krone and Debra Milke, and Louisiana exoneree Damon Thibodeaux urged a no vote on Prop. 66, arguing that they would have been executed without the chance to prove their innocence if a measure like it had been effect when they were sentenced to death. A few days earlier, Illinois exoneree Randy Steidl and Ohio exoneree Kwame Ajamu spoke to the Oklahoma Republican Liberty Caucus, a group described by its chairman, Logan County Commissioner Marven Goodman, as "disenfranchised conservatives" who, as a result of their distrust of government regulation are questioning the death penalty. Steidl and Ajamu told the caucus about their wrongful capital convictions and raised concerns about the effects of limitations on judicial review under Oklahoma ballot question 776, which would bar Oklahoma courts from ruling that the imposition of the death penalty constituted cruel or unusual punishment or "contravene[d] any provision of the Oklahoma Constitution." Steidl, who was wrongfully convicted in Illinois in 1987 and exonerated in 2004, stressed the importance of appellate review in securing his exoneration: "Without the judicial review I finally got, I’d be dead today or at least be languishing in prison," he said. "I really believe that Oklahoma’s track record so far is not very pretty when you’ve got 10 people that’s been exonerated." And in Nebraska, Maryland's Kirk Bloodsworth, the first former death row prisoner to be exonerated by DNA, taped an ad on behalf of Retain A Just Nebraska, the advocacy committee opposing a voter referendum that could overturn the state legislature's repeal of Nebraska's death penalty. In the ad, Bloodsworth says: "You could free a man from prison, but you cannot free him from the grave. You can not un-execute someone. ... If it can happen to an honorably discharged marine with no criminal record or criminal history, it could happen to anybody in America.”
(J. White, "Capitol Alert: Exoneration Nation," Sacramento Bee, September 19, 2016; J. Coburn, "Oklahoma conservative group examines death penalty," Edmond Sun, September 16, 2016; C. Tolan, "This former death row inmate has a powerful message for Nebraskans voting on the death penalty," Fusion, July 12, 2016) See New Voices and Oklahoma. You can see the Facebook livestream of the California press conference featuring 17 death-row exonerees here.Tweet
OUTLIER COUNTIES: Legacy of Racism Persists in Caddo Parish, Which Had Nation's Second-Highest Number of Lynchings
The death-sentencing rate per homicide in Caddo Parish, Louisiana was nearly 8 times greater between 2006 and 2015 than the rest of the state, making a parish with only 5% of Louisiana's population responsible for 38% of the death sentences imposed statewide. Caddo currently has more people on death row than any other parish in the state. Known as "Bloody Caddo," the parish had the second highest number of lynchings of any county in the nation. The Confederate flag flew in front of the steps to the courthouse until 2011 (pictured), where a monument to the Confederacy still stands. Inside that courthouse, 80% of defendants sentenced to death between 2010 and 2015 were Black, and no White person has ever been executed for killing a Black person in Caddo Parish. Caddo received national attention in 2015 when Acting District Attorney Dale Cox said he believed the state needed to "kill more people." Cox was personally responsible for one-third of the death sentences in Louisiana from 2010 to 2015. His controversial statements were in response to questions about the exoneration of Glenn Ford, a Black man convicted by an all-White jury, who spent 30 years on death row for a crime he did not commit. Ford's case illustrated many of the factors that have contributed to the overproduction of death sentences in Caddo Parish: racial bias in jury selection and the application of death sentences, inadequate representation, and official misconduct. A 2015 study by Reprieve Australia found that prosecutors used peremptory strikes against 46% of Black jurors, but only 15% of other jurors. One Black prospective juror was removed from a jury pool in 2009 for objecting to the presence of the Confederate flag in front of the courthouse. Like Ford, who was represented by two appointed attorneys who had never represented a criminal defendant at trial, most Caddo Parish defendants have not received adequate representation. In the last decade, 75% of people sentenced to death in Caddo Parish were represented by at least one lawyer who does not meet recently-imposed standards for capital attorneys. Official misconduct, like the false police testimony in Ford's trial, has also contributed to the high number of death sentences in Caddo. In 2014, Dale Cox wrote a memo regarding the capital trial of Rodricus Crawford in which he stated that Crawford, "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was convicted and sentenced to death for allegedly killing his infant son, despite medical evidence that the child actually died of pneumonia. Caddo prosecutors have a history of seeking death against the most vulnerable Black defendants: Lamondre Tucker and Laderrick Campbell were 18 years old at the time of their offenses and both had IQs in the intellectually disabled range; Corey Williams, who was 16 and removed from death row after being found to be intellectually disabled, is still serving a life sentence despite powerful evidence that his confession was coerced and that others committed the offense for which he was condemned. In November 2015, Caddo Parish elected its first Black District Attorney, James E. Stewart, Sr., who pledged, "to bring professionalism and ethics back to the district attorney’s office."
("Too Broken to Fix: Part I," The Fair Punishment Project, August 23, 2016; A. Cohen, "The Corey Williams Story," Brennan Center for Justice, December 17, 2015; A. Burris, "Prisoners sentenced to die by Caddo juries lingering on death row," Shreveport Times, November 18, 2015.) See Race, Innocence, and Prosecutorial Misconduct.Tweet
Field Poll: California Death Penalty Repeal Leads Among Likely Voters as Majority Say They Prefer Life Without Parole
A poll of likely California voters conducted jointly by The Field Poll and the Institute of Governmental Studies at the University of California, Berkeley has found continuing erosion of support for the death penalty in the state and near-majority support for Proposition 62, a ballot question to replace the state's death penalty with a system of life imprisonment without parole, plus restitution. The poll found significant voter confusion about a rival ballot measure, Proposition 66, that claims to "reform" the state's death penalty by purportedly speeding up capital appeals. A plurality of voters said they are undecided about that ballot question. Although support for both propositions led opposition, neither commanded a majority. 48% of likely voters say they plan to vote yes on Prop. 62, with 37% planning to vote no and 15% undecided. 35% say they plan on voting yes on Prop. 66, with 23% currently opposing, but 42% undecided. (Click image to enlarge.) The poll presented likely voters with the summaries of each initiative that will appear on the November ballot. It found that support for repeal was strongest among Democrats (63%), liberals (71%), voters under 30 (55%), and voters with no religious preference (59%). Latinos were nearly evenly divided and constituted the only racial or ethnic group in which more voters said they opposed Prop. 62 (43%) than supported it (42%). Nearly one-third of African-American voters (32%) reported that they were undecided. A plurality of most demographic groups was undecided about Prop. 66, but support for the measure was highest among Republicans (42%), conservatives (45%), and Protestants (41%). The poll also asked voters whether they prefer the death penalty or life without parole for those convicted of first degree murder. A 10-percentage-point majority (55%-45%) said they prefer life without parole, continuing a trend of increased support for alternatives to the death penalty since the Field Poll first asked the question in 2009. At that time, a plurality (44%) prefered the death penalty. Support for Prop. 62 is polling 6 percentage points higher than it did for Proposition 34, the ballot initiative to repeal the death penalty that narrowly failed in 2012, at the same time in the election cycle. A Field Poll of likely voters in September 2012 showed 42% in favor of the repeal initiative, 45% opposed, and 13% undecided. Prop. 34 ultimately garnered 48% of the vote. The poll of 942 likely voters was conducted online by YouGov September 7-13, 2016 and released on September 22.
(M. DiCamillo, "DEATH PENALTY REPEAL (PROP. 62) HOLDS NARROW LEAD, BUT IS RECEIVING LESS THAN 50% SUPPORT. MOST VOTERS AREN'T SURE ABOUT PROP. 66, A COMPETING INITIATIVE TO SPEED IMPLEMENTATION OF DEATH SENTENCES," The Field Poll, September 22, 2016; M. DiCamillo and M. Field, "VOTERS CLOSELY DIVIDED ON PROPOSITION 34 TO REPEAL DEATH PENALTY," The Field Poll, September 25, 2012.) See Public Opinion.Tweet
A September 20 report by the Texas Defender Service says that Texas "has failed to ensure effective counsel" for appellants in capital cases and that the state's system of reviewing death penalty cases on direct appeal is "in dire need of reform." The report, titled Lethally Deficient, reviewed all 84 capital direct appeals decided by the Texas Court of Criminal Appeals (CCA) from 2009 to 2015 and identified numerous "persistent deficits in the provision of counsel on direct appeal in death penalty cases." Among those problems, the report found that the Texas capital defense system "fails to meaningfully evaluate attorney qualifications" before assigning a lawyer to handle a capital appeal; "understaffs the defense" by appointing only one lawyer—frequently a solo practitioner—to the case; improperly "subjects defense counsel to political pressures"; provides inconsistent and often inadequate resources and compensation; and fails to control attorney workload to ensure that appointed lawyers have time to provide appropriate representation. The report said that, these "fundamental flaws ... led to multiple instances" in which appeal lawyers recycled boilerplate arguments relying on outdated legal authority that had already been rejected in other cases, failed to meet or consult with their clients before filing briefs, failed to file replies to prosecutors' briefs, and failed to seek review of the case by the U.S. Supreme Court. During the period examined, the CCA upheld every capital conviction and more than 94% of all death sentences, and overturned just three death verdicts. Looking at 1,060 capital direct appeal decisions between 2005 and 2015 by courts in the other 30 death penalty states, the study found that Texas's reversal rate was 2.8 times lower than the national average. “The tragedy of direct appeals in Texas capital cases is not simply that lawyers underperform, often pasting together briefs, skipping oral argument, or declining to do other basic tasks such as filing reply briefs. It is that everyone knows that this is happening, from the Texas Court of Criminal Appeals on down. It is an embarrassment to the legal profession and a testament to the low expectations in Texas surrounding defense representation in capital cases,” said Jordan Steiker, Co-Director of the Capital Punishment Center at The University of Texas School of Law. The Texas Defender Service offers three major reform recommendations, suggesting that Texas should 1) "establish a statewide capital appellate defender office," 2) "create a statewide appointment system with effective caseload controls and uniform attorney compensation," and 3) "appoint two lawyers to represent death-sentenced defendants on direct appeal." Kathryn Kase, executive director of the Texas Defender Service, said "Texas has made enormous strides in its effort to reform indigent legal services in general, and in capital indigent representation, since 2001." These new measures, she said "are the necessary next steps in delivering a promise that the first Texas Code of Criminal Procedure laid out in 1857, promising adequate legal assistance to indigents facing the mighty powers of the state."
("Lethally Deficient: Direct Appeals in Texas Death Penalty Cases," Texas Defender Service, September 20, 2016; M. Ward, "Report: Texas death penalty appeals process deeply flawed," Houston Chronicle, September 20, 2016; San Antonio Express-News, September 20, 2016; Press Release, "New Report Examines Texas Death Penalty Direct Appeal Process and Practices," Texas Defender Service, September 20, 2016.) See Representation.Tweet
Newspaper editorial boards in California are overwhelmingly supporting a November ballot initiative to abolish the state's death penalty and replace it with life without parole plus restitution, and are uniformly rejecting an opposing initiative that purports to speed up the appeals process. At least eight California newspapers have published editorials supporting Proposition 62 and opposing Proposition 66, and Ballotpedia reports that it is aware of no editorial boards that have supported Proposition 66. A Los Angeles Times editorial characterizes the death penalty as "both immoral and inhumane," adding, "[e]ven those who do not object to capital punishment on principle ought to support abolition because of the system’s inefficiency, exorbitant costs and long delays. Proponents of Proposition 66 say they can speed up the process and make the death penalty work, but there are serious doubts that their proposal would achieve the kind of fast-tracking they promise, and critics argue persuasively that the system might become even more expensive." The San Francisco Chronicle writes that "all sides agree [California's death penalty] has produced enormous legal bills, no semblance of deterrence to would-be murderers and too little justice to victims’ loved ones over the past four decades." It says Prop. 62 "offers a straightforward and certain solution," while criticizing Prop. 66 as "a highly complex, probably very expensive and constitutionally questionable scheme for streamlining the appeals process." Many of the editorials are particularly critical of Prop. 66's proposal to conscript appellate lawyers to represent death row inmates. The (Santa Rosa) Press Democrat's critique is representative: "Rather than funding an expansion of the state public defender’s office, which handles almost all death penalty appeals, Proposition 66 would require all attorneys who practice in California appellate courts, regardless of specialty and training, to accept judicial appointments to capital cases. Claims of inattentive and incompetent counsel already are common in death penalty appeals, and conscripting lawyers would only invite more such challenges." The Bakersfield Californian, which offered no opinion on Prop. 34, California's prior ballot initiative to abolish the death penalty, has also weighed in on the death penalty this year, calling for an end to the state's "costly, toothless death penalty." Other newspapers urging voters to vote yes on Prop. 62 and no on Prop. 66 included Monterey Herald, the Bay Area News Group (Mercury News and East Bay Times), and the Santa Clarita Valley Signal.
(Editorial, "Props 62 and 66: California voters should end the death penalty, not speed it up," Los Angeles Times, September 3, 2016; Editorial, "Fight crime, not futility: Abolish death penalty," San Francisco Chronicle, August 25, 2016; Editorial, "Death penalty: Yes on Prop 62, No on Prop 66," The Press Democrat, September 15, 2016; Editorial, "End toothless, costly death penalty: Yes on Prop. 62; no on 66," The Bakersfield Californian, September 18, 2016; Editorial, "Death penalty: Yes on 62, no on Prop. 66," Monterey Herald, September 8, 2016; Editorial, "Our View: Yes on Prop 62," Santa Clarita Daily Signal, August 20, 2016; Editorial, "Abolish the death penalty; Vote yes on Proposition 62," Bay Area News Group, July 14, 2016.) See Editorials and Recent Legislation.Tweet
Today, DPIC launches a new podcast series, "Discussions With DPIC," which will feature monthly, unscripted conversations with death penalty experts on a wide variety of topics. The inaugural episode features a conversation between Texas Defender Services staff attorney Kate Black (pictured) and DPIC host Anne Holsinger, who discuss the case of Jeffery Wood and Texas' unusual legal doctrine known as the "law of parties." Wood's case garnered national media attention because he was sentenced to death despite having neither killed anyone nor even intended that a killing take place. His execution, which had been scheduled for August 24, was stayed by the Texas Court of Criminal Appeals to permit him to litigate a challenge to the prosecution's use of scientifically invalid predictions of future dangerousness by a psychiatrist who had been expelled from state and national psychiatric associations for similarly improper testimony in the past. In the podcast, Black explains the law of parties and its application in Wood's case, and discusses how the national dialogue that developed around Wood's case may affect the death penalty in the future.Tweet
Roger King, Former Philadelphia Prosecutor Who Once Held Record For Most Death Penalty Convictions, Dies
Roger King, a former prosecutor in Philadelphia who at one point was responsible for 20% of all the death sentences imposed in Pennsylvania, died of kidney cancer on August 24. When King retired in 2008, he held the record for most death sentences obtained by a single Pennsylvania prosecutor. None of the men he sent to death row has ever been executed. While King's aggressive pursuit of death sentences contributed to his "larger than life" reputation, it also involved charges of misconduct that included the pursuit of the death penalty against at least seven men who may have been innocent. William Nieves was prosecuted by King in 1994 and convicted based upon questionable eyewitness testimony. He was exonerated from death row in 2000 after his new attorney presented evidence that his first jury never heard that an eyewitness had originally identified the perpetrator as a short black man, not the tall, light-skinned Nieves. King also withheld exculpatory evidence in the trial of James Dennis (pictured) who was granted a new trial on August 23. The Pennsylvania federal appeals court found that King had suppressed "a receipt corroborating Dennis' alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder," which, the court said, "effectively gutted" the prosecution's case. A Philadelphia judge overturned the 1993 conviction of a third death row prisoner prosecuted by King, Frederick Thomas, who—as with Nieves and Dennis—were convicted on shaky eyewitness testimony and without any physical evidence against them. Before Thomas was granted a new trial in 2002, the state's two eyewitnesses recanted their testimony and police officer James Ryan—whom the defense said had framed Thomas—was convicted on corruption charges arising out of his conduct in other cases, including falsifying police reports and making false arrests. King also prosecuted four innocent men in Philadelphia's "Lex Street Massacre," the worst mass murder in Philadelphia history. No physical evidence linked any of the men to the killings, but King proceeded with one questionable witness and the coerced confession of one of the defendants. After 18 months in prison without being tried, the court dismissed all charges against the men. The four sued for their wrongful incarceration and obtained a $1.9 million settlement from the city.
(D. Love, "We Need an Accounting of America’s Innocent Prisoners," The Huffington Post, October 30, 2014; C. Palmer, "Roger King, 72, 'larger than life' retired Philly homicide prosecutor," The Philadelphia Inquirer, August 25, 2016; E. Lounsberry, "Hearing set for man dying on death row Frederick A. Thomas, 56, has liver failure. He was convicted of killing a FedEx driver in North Phila.," The Philadelphia Inquirer, January 11, 2002.) See Innocence and Prosecutorial Misconduct.Tweet
NEW VOICES: Former Ohio Attorney General Jim Petro Says Death Penalty Unfixable, "Not Worth It Any More"
In a recent commentary in the Columbus Dispatch, former Ohio Attorney General Jim Petro (pictured) criticized the state's death penalty as "a broken system that currently serves only the interest of Ohio prosecutors" and said that keeping "the death penalty is just not worth it any more." As a state legislator, Petro helped write Ohio’s current death-penalty law and he oversaw eighteen executions as Attorney General from 2003-2007. He says, at the time "[w]e thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong." Petro expressed his agreement with the conclusions in a report, “A Relic of the Past: Ohio’s Dwindling Death Penalty," released last week by Ohioans to Stop Executions (OTSE), which he says "details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases." The decline is exemplified by the fact that only one new death sentence was imposed in Ohio in 2015 -- the fourth consecutive year of decline -- and Cuyahoga and Summit counties, which are responsible for more than 25% of Ohio's death sentences, did not initiate any new death penalty cases last year. The change in death penalty practices in Cuyahoga, which through 2012 had sought death in dozens of cases a year, had nothing to do with crime rates: "there was a new prosecutor," Petro said. By contrast, Trumbull County had one of the lowest homicide rates in the state but the highest death-sentence-per-homicide rate. "It has become clear to me that what matters most is the personal predilections of a county prosecutor," Petro said. Petro also was critical of apparent legislative indifference to the flaws in Ohio's capital punishment system. Despite 13 wrongful convictions and exonerations in Ohio death penalty cases and 56 recommendations for reform made in 2014 by the Ohio Supreme Court's Joint Task Force on the Administration of Ohio’s Death Penalty, the legislature has seen fit to consider "[o]nly a handful of the recommendations ... , and not those which would make the biggest difference." Petro concludes: "I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. ... If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy."
(J. Petro, "Jim Petro commentary: Death penalty is in decline, but problems remain," Columbus Dispatch, September 10, 2016; 2015 Annual Report, “A Relic of the Past: Ohio’s Dwindling Death Penalty," Ohioans to Stop Executions, September 7, 2016.) See New Voices and Arbitrariness.Tweet
Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts
New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.
The jury votes in the four other Alabama death row exonerations were: Walter McMillian, 7-5 for life; Anthony Ray Hinton, 10-2 for death; and Wesley Quick, 11-1 for death. The other Alabama death row exoneree, Gary Drinkard, waived jury sentencing altogether.
(P. Mulvaney and K. Chamblee, "Innocence and Override," The Yale Law Journal Forum, August 8, 2016; S. Bousquet, "Senate panel OKs death penalty fix; requires unanimous juries," Tampa Bay Times, February 8, 2016; Press Release, Stephen Harper, February 8, 2016.) See Innocence and Sentencing.Tweet
The geographic arbitrariness, high rates of official misconduct, racial discrimination, and poor defense representation characteristic of outlier jurisdictions that disproportionately seek and impose the death penalty in the United States are all present in Clark County, Nevada's administration of the death penalty. From 2010 through 2015, nine death sentences were imposed in Clark County, while no one was sentenced to death in any other county in Nevada during that same period. In an analysis by Harvard University's Fair Punishment Project of the 16 counties that imposed the most death sentences in the United States over that period, Clark exhibited the highest levels of prosecutorial misconduct, with the Nevada Supreme Court finding misconduct in 47% of the Clark County death penalty cases it reviewed on direct appeal since 2006. Part of this, according to the Fair Punishment Project, is attributable to the "sloppiness that comes along with overextended lawyers," but that overextension was itself a by-product of prosecutorial decisionmaking. In 2011, Clark County had more pending capital cases per capita than any other county in the nation. David Roger, who was District Attorney until 2012 when he resigned to become counsel for the Las Vegas police union, refused to offer or accept plea deals in death penalty cases. At that time, Clark County exhibited another charactistic present in many counties that overaggressively pursue capital punishment: police violence against civilians. The county was the subject of numerous citizen complaints describing police brutality, deadly force, and excessive use of force disproportionately directed at racial minorities, and the ACLU and NAACP had petitioned the Justice Department to investigate what it called a pattern of civil rights abuses by law enforcement. In 2015, Clark ranked fourth in the nation in the per capita rate of police killings of civilians. Racial bias also plagues Clark County death penalty cases: the Nevada Supreme Court overturned two convictions in less than two years because of race discrimination in jury selection by Clark County prosecutors. In the period covered by the Fair Punishment Project report, 71% of victims in cases that resulted in a death sentence were white, though only 33% of murder victims in Las Vegas, which composes most of Clark County, were white. The exoneration of Roberto Miranda highlights another systemic problem in Clark County death penalty cases: inadequate representation. Roberto Miranda spent 14 years on death row before being exonerated, and later sued the county for poor public defense practices, including assigning inexperienced attorneys to capital defendants. In a court filing, the county responded, "As a matter of law, attorneys who have graduated from law school and passed the bar should be considered adequately trained to handle capital murder cases." Over the period of the Fair Punishment Project study, the case for life presented by defense lawyers in the cases that resulted in death verdicts lasted an average of only 1.1 days. Clark County's death penalty practices have also been extremely costly. A University of Nevada-Las Vegas study estimated in 2012 that the 80 capital cases prosecuted in the county would cost $15 million more than if they were to be prosecuted without the death penalty.
("Too Broken to Fix: Part I," The Fair Punishment Project, August 23, 2016; R. Balko, "America's Killingest Counties," The Washington Post, December 3, 2015; American Civil Liberties Union of Nevada & National Association for the Advancement of Colored People, Las Vegas Chapter, "In the Matter of a Petition for an Investigation Into the Las Vegas Metropolitan Police Department," January 14, 2012; J. German, F. McCabe, and K. Jourdan, "District Attorney Makes Retirement Official," Las Vegas Review-Journal, November 1, 2011.) See Prosecutorial Misconduct, Race, Representation, and Costs.Tweet
Calling racial bias in the administration of the death penalty "an undisputed fact," the National Hispanic Caucus of State Legislators (NHCSL), a group of 320 Hispanic legislators, has passed a resolution urging legislative action in all state and federal jurisdictions to repeal the death penalty across the United States. The legislators note that the criminal justice system subjects "Black, Latino, Native Americans, and all people of color" to more punitive treatment, including being "more likely to be sentenced to death." The resolution highlights racial inequities that occur at several key stages of capital cases. Citing studies that "white juries are more likely to sentence a Latino defendant to death," it also stresses that "racial bias extends beyond who is sentenced to death," as the mostly white prosecutors who have authority to make life and decisions in capital cases disproportionately seek death in cases involving white victims. The resolution points out that "every single one" of the ten counties with the largest death row populations in the United States "has large or majority Latino populations," magnifying the impact of capital punishment policies on the Hispanic community. NHCSL President and Pennsylvania State Representative Ángel Cruz said, "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities. We therefore call on the federal government and every other jurisdiction in this country to end a senseless policy and end the death penalty now." Referencing the high cost of capital punishment, the resolution proposes alternative uses for those tax dollars: "repeal of the death penalty will free up millions of tax dollars trapped in cash-strapped state budgets that could be redirected to violence prevention, combatting implicit bias, or supporting victims of violence in Latino communities." Colorado Representative Dan Pabón, co-sponsor of the resolution, said, "This is the civil rights issue of our time. Even if repealing the death penalty results in one innocent life being saved, it’s worth it. Our criminal justice system should focus on 'justice.'"
(A. Quijano, "Resolution Supporting Repeal of the Death Penalty," National Hispanic Caucus of State Legislators, August 11, 2016; Press Release, "Hispanic Legislators Call for Repeal of Death Penalty," National Hispanic Caucus of State Legislators, August 30, 2016.) See New Voices and Race.Tweet
Mississippi Attorney General Tries to Remove Defense Lawyers Who Challenged Suspect Bitemark Evidence
Attorneys for Mississippi death row prisoner Eddie Lee Howard (pictured) are seeking to prove his innocence and challenging the questionable expert bite mark testimony that persuaded jurors to convict him and sentence him to death in 1992. As part of the attack on that evidence, Howard's lawyers recently deposed Michael West, the discredited forensic odontologist who testified against Howard and many other defendants in the 1990s, primarily in Mississippi and Louisiana. A two-part story by Washington Post columnist Radley Balko recounts the combative deposition in which defense lawyers systematically picked apart the credibility of West's testimony in Howard's case, and the apparent retaliatory efforts by the office of Mississippi's attorney general to remove the lawyers from the case after they asked that charges against Howard be dropped. West, who was belligerent, openly contemptuous, and profane during the deposition, was popular as a prosecution expert witness because he purported to be able to match marks to a single individual, excluding all other possible suspects through an idiosyncratic technique that, he said, he alone was capable of using and could reveal bite marks that other experts couldn't find. In the mid-1990s, Newsweek and 60 Minutes profiled West and raised questions about the veracity of his techniques. He was later expelled from three professional organizations, and several people he testified against have later been proven innocent, including Kennedy Brewer, who was exonerated in 2008 after DNA evidence implicated another suspect, who then confessed to the crime. Bitemark claims such as those made by West were the subject of stinging criticism in a 2009 report of the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward. The report criticized the field of forensic odontology as lacking any "evidence of an existing scientific basis for identifying an individual to the exclusion of all others" and "lack[ing] valid evidence to support many of the assumptions made by forensic dentists during bite mark comparisons.”
In April 2016, Eddie Howard's attorneys arranged a deposition with West in advance of a hearing in which they planned to present DNA evidence to support Howard's innocence claim. West, who had refused to prepared for. the deposition, asserted that he stood by his testimony from Howard's trial, even as he contradicted that testimony. Days later, Howard's attorney, Tucker Carrington of the Mississippi Innocence Project, sent a letter to Mississippi Assistant Attorney General Jason Davis describing the deposition and the new evidence and asking Davis to drop the charges against Howard. Davis and Attorney General Jim Hood filed a motion the next day challenging the competency of Howard's attorneys, despite having vouched for their qualifications in a different context less than a year earlier. Howard is represented by respected and experienced death penalty attorneys, but a vaguely written Mississippi court rule known as Rule 22 could potentially have disqualified them. Hood's office has repeatedly used Rule 22 against well-qualified attorneys from out-of-state law firms or legal aid groups to attempt to exclude them from representing Mississippi prisoners. Almost immediately after Hood's motion was filed, the Mississippi Supreme Court revised Rule 22, effectively stopping the motion in its tracks. An evidentiary hearing in Howard's case was held in May, but the judge has yet to rule.
(R. Balko, "Expert witness goes nuts during questioning for Mississippi death penalty case," The Washington Post, August 24, 2016; R. Balko, "Mississippi Attorney General Jim Hood defends discredited forensic experts, harasses defense attorneys instead," The Washington Post, August 25, 2016.) See Innocence.Tweet
OUTLIER COUNTIES: Maricopa, Arizona—"Outrageously Exploited Power," "Crippled" Defense, and Five Exonerations
Maricopa County, Arizona imposed 28 death sentences between 2010 and 2015 and, as described in a BuzzFeed news analysis of a new report on outlier death penalty practices, "stands out for its stark examples of the problems found across the counties that most often sentence people to death." The report, Too Broken to Fix, by Harvard University's Fair Punishment Project, studied the nation's 16 most prolific death-sentencing counties and found that Maricopa County exhibited systemic problems with extreme prosecutorial misconduct, deficient defense representation, racial bias, excessive punishment, and innocence. The county's top prosecutor, Andrew Thomas, pursued capital charges at nearly double the rate of his predecesssor after winning election in 2004. His pattern of gross misconduct led a three-member panel of the Arizona Supreme Court to disbar him in 2012 for having "outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.” Three Maricopa prosecutors who served under Thomas accounted for more than one-third of all capital cases the Arizona Supreme Court has been called upon to review on direct appeal since 2006, "amass[ing] findings of improper behavior in eight [cases]." The excessive number of capital prosecutions in Thomas' tenure created a "capital case crisis" that "crippled the county's public defender system" and left a dozen murder defendants without lawyers. Four lawyers who were appointed accounted for nearly a quarter of all Arizona death cases that have reached the state supreme court since 2006. One Marciopa defense attorney, Herman Alcantar, represented five pretrial capital defendants at once, making it almost impossible for him to adequately represent his clients. In one of those cases, a month before trial, he had not filed any substantive motions or met with his client in over a year. Nathanial Carr represented four people now on death row, and spent less than two days presenting mitigation for each one. He wrote that one client, who had an IQ of 72, "looks like a killer, not a retard." In the six years covered by the Fair Punishment Project's report on outlier counties, 57% of Maricopa's death sentences were imposed on people of color. In that same period, no people of color were sentenced to death anywhere else in Arizona. Five Maricopa County death row inmates have been exonerated. Ray Krone (pictured) was convicted on junk science testimony after a prosecutor falsely claimed, "bite marks are as unique as fingerprints." He was later exonerated by DNA testing. Debra Milke spent 22 years on death row before her case was reversed and the state courts barred the prosecution from retrying her because of extensive official misconduct. An appellate court called her case, "a severe stain on the Arizona justice system."
This is the second in our 16-part What's New series on outlier counties that have sent the most number of defendants to death row since 2010.
("Too Broken to Fix: Part I," The Fair Punishment Project, August 23, 2016; C. Geidner, "Report Aims To Explain 'Outlier' Counties Imposing Most New Death Sentences," Buzzfeed, August 23, 2016, R. Smith, "The Worst Lawyers," Slate, November 4, 2015.) See Prosecutorial Misconduct, Representation, Innocence, and Race.Tweet
In a new book, Against the Death Penalty, Professor John Bessler of the University of Baltimore School of Law presents Justice Stephen Breyer's historic dissent in Glossip v. Gross, which questioned the continuing constitutionality of capital punishment in the United States, in a new format intended to make the opinion more accessible to a broad audience. "I tried to contextualize the opinion by doing a longer introduction which makes the opinion into a book and summarize what the other justices did in their opinions," Bessler told the National Law Journal. In his Glossip dissent, which was joined by Justice Ruth Bader Ginsburg, Breyer raised—and set forth a potential blueprint for answering—a number of questions concerning the constitutionality of the death penalty. Breyer wrote: "Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." Bessler praised Breyer's efforts to make his dissent more widely available, saying, "One of the things Justice Breyer been really good at has been going out there with his books, trying to engage the public about the importance of the law and the Constitution. He wants to get his ideas out. ...I think this will be picked up and read by people and, hopefully, they will get a better understanding of the Eighth Amendment and the death penalty itself."
(S. Breyer, edited by J. Bessler, "Against the Death Penalty," Brookings Institution Press, August 23, 2016; M. Coyle, "An Annotated Justice Breyer on the Death Penalty," The National Law Journal, August 10, 2016.) See Books and U.S. Supreme Court.Tweet
Florida Prosecutor, Public Defender Tied to Outlier Death Penalty Practices Suffer Landslide Election Loss
In a primary election described as reshaping the political landscape of Northeast Florida, the region voted in a landslide Tuesday to oust State Attorney Angela Corey (pictured) and Public Defender Matt Shirk. The pair's controversial policies had made Duval County one of the most prolific death sentencing counties in the country and had led to national derision of its criminal justice system. Some legal experts touted Corey's defeat by political newcomer Melissa Nelson as evidence of voter backlash against overaggressive prosecutorial policies. Northeastern Law School professor Daniel Medwed said the election showed that “the era of tough-on-crime rhetoric is coming to a close" and Fordham University law professor John Pfaff said Corey’s defeat "continues a small—but important—trend of powerful, incumbent prosecutors losing primary elections for being too aggressive." Local legal experts drew a link between the election results and Corey's hard-line death penalty practices. University of Florida law school professor Kenneth Nunn, said that “[f]or too long, Duval County has been an outlier in its excessive use of the death penalty, its harsh punishment of juveniles, and its reliance on outdated sentencing practices." Florida International University Law School Professor Stephen Harper found it "refreshing to see a prosecutor who is so overly aggressive defeated in a conservative southern jurisdiction. This goes to show, among other things, that the death penalty is on its way out.” In the Public Defender election, incumbent Matthew Shirk had drawn criticism by firing the most experienced death penalty and juvenile court lawyers and installing as his chief of homicide a lawyer who had 16 clients on death row and whom courts had found to have provided ineffective representation is several death penalty cases. Shirk was defeated by retired Judge Charlie Cofer, who had spent 18 years in the Public Defender’s Office and then 17 years as a county judge. Last fall, voters in Caddo Parish (Shreveport), Louisiana voted out a prosecutorial regime known nationally for its aggressive pursuit of the death penalty and elected its first black District Attorney.
(By the Times-Union, "Voters reshape the political landscape in Northeast Florida," The Florida Times-Union, August 30, 2016; L. Hannan and S. Kitchen "Northeast Florida voters kick controversial State Attorney Angela Corey out of office," The Florida Times-Union, August 30, 2016; A. Pantazi, "John Legend, yes that one, is happy State Attorney Angela Corey lost Tuesday night," The Florida Times-Union, August 30, 2016; A. Pantazi, Former judge Charlie Cofer topples Public Defender Matt Shirk," The Florida Times-Union, August 30, 2016.) See Public Opinion, Prosecutorial Misconduct, and Representation.Tweet
FBI records show that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists are largely unsubstantiated and exaggerated, according to an investigation by BuzzFeed News. BuzzFeed found that "few concrete examples" of the alleged harassment, intimidation, and physical threats states claim have been made against drug suppliers, and that "the states’ marquee example — in which the FBI allegedly investigated a serious bomb threat sent to a drug supplier — is contradicted by internal FBI documents." Instead, BuzzFeed found, "the real danger to drug suppliers appears to be legal and economic risk, not risk of violence." Texas and Ohio have claimed secrecy was necessary to protect the safety of potential drug suppliers, citing an alleged threat against a disgraced and now defunct Tulsa, Oklahoma pharmacy, The Apothecary Shoppe, that had been supplying execution drugs to Missouri. That "threat" appears to have consisted of an email sent by a retired college professor who used his own name and included his own phone number, and which the professor has characterized as a warning to the pharmacy to be cautious. An expert witness for the two states—a former Secret Service officer named Lawrence Cunningham who is now employed by a private security company—testified in litigation over their secrecy policies that the email constituted a "serious threat," as evidenced by the fact that it was investigated by the FBI. However, FBI and Tulsa Police Department records show that neither agency was aware of any threats against the pharmacy until a reporter called the FBI months later to ask about alleged threats. The pharmacy had not filed any complaint about the email and, FBI records show, did not come forward with copies of any threatening emails after having been given an opportunity to do so. Cunningham also testified in the Ohio case that the Texas Department of Public Safety had investigated the email, including interviewing the professor—a claim that is contradicted by Cunningham's own sworn testimony in the Texas case and, BuzzFeed says, by Texas DPS documents, sworn statements of the DPS department head, and FBI internal documents. Indeed, Colonel Steven McCraw of Texas DPS testified in a deposition, “I did not do any investigations. We didn’t look at any people. We didn’t do anything.” Officials in Mississippi, Ohio, and Missouri also exaggerated threats by stating suppliers were "harmed" or "threatened" by facing lawsuits or disparaging comments in the media.
(C. McDaniel, "FBI Documents Don’t Back Up Claimed Threat To Execution Drug Supplier," BuzzFeed News, August 29, 2016.) See Lethal Injection.Tweet
In a 5-2 order, with two judges dissenting and two others not participating, the Texas Court of Criminal Appeals stayed the scheduled August 31 execution of Rolando Ruiz (pictured). The order did not specify the reason why the court issued the stay, saying only that after reviewing a new challenge to Ruiz's death sentence that his lawyers had filed, "we have determined that his execution should be stayed pending further order by this Court." Although Texas remains the most prolific state in carrying out executions and, along with Georgia, has executed six prisoners in 2016, this is the seventh consecutive time a scheduled Texas execution has been halted or postponed as a result of either a stay, a rescheduled execution date, or the withdrawal of the death warrant. Ruiz's stay came after his new lawyers filed a petition for relief in the Texas courts seeking relief from his death sentence on the grounds that his trial lawyer unreasonably failed to investigate and present mitigating evidence to spare his life at the punishment phase of his trial, violating his right to effective assistance of counsel, and that the lawyer Texas appointed to represent him in his initial state habeas challenge to his conviction and sentence also unreasonably failed to investigate and present that evidence. Ruiz also claimed that executing him more than two decades after his conviction would constitute cruel and unusual punishment in violation of the Eighth Amendment. This was Ruiz's third death warrant. He first faced execution in 2007, but he received a stay from a federal appeals court. The U.S. Supreme Court declined to review his case in May 2015 and he faced a second death warrant earlier this year, when his execution was set for July 27. That execution was rescheduled for Aug. 31, reportedly because Texas failed to provide Ruiz's lawyers with sufficient notice of the execution. Texas has four more executions scheduled for 2016, with the execution of Robert Mitchell Jennings scheduled for September 14. Its last execution was on April 6. Texas has not gone that long between executions since June 2008, when executions resumed after a nearly nine-month hiatus while the U.S. Supreme Court was considering the constitutionality of lethal injection.
(T. Nashrulla, C. Geidner, and C. McDaniel, "Lengthy Gap In Texas Executions To Continue As State Court Halts Yet Another," BuzzFeed, August 26, 2016.) See Stays of Execution and Upcoming Executions. Read the order of the Texas Court of Criminal Appeals granting the stay of execution here.Tweet
OUTLIER COUNTIES: Duval, Florida--Controversial Prosecutor, Inadequate Defense, Systemic Death Penalty Problems
Between 2010 and 2015, only 16 counties in the United States imposed five or more death sentences. Duval County, Florida, which consistently ranks among the most punitive death sentencing counties in the country, sentenced 25 capital defendants to death. According to a new report released by the Fair Punishment Project at Harvard University, Duval produced roughly one-quarter of the death sentences imposed in Florida during that period, although the entire Jacksonville Standard Metropolitan Statistical Area -- which includes Duval County and four other counties -- accounts for only about 9% of the state's murders. The Fair Punishment Project says the county's death-sentencing rate per homicide "is more than 40 percent higher than in the rest of the state." The county's prolific death-sentencing practices are attributable to a constellation of outlier practices. Only two states, Florida and Alabama, allow death sentences to be imposed without a unanimous recommendation for death by the sentencing jury. Since 2006, 88% of the 25 Duval death sentences reviewed by the Florida Supreme Court on direct appeal had non-unanimous jury recommendations. A second key factor is the county's prosecutor, state attorney Angela Corey (pictured), of whom The Nation asked, is she "the Cruelest Prosecutor in America?" In a piece for The New York Times, Emily Bazelon focused on Corey to explain the county's heavy use of the death penalty, saying that she "has made her reputation, in part, by winning verdicts that carry the death penalty." Bazelon writes that Corey "has one of the highest rates of death sentences in the country, with 24 (19 in Duval) in the eight years since she was elected." Corey has said "[i]t’s my statutory and constitutional duty to seek justice for this community and to give the victim’s family justice," but she is currently pursuing a death sentence against James Rhodes for the murder of Shelby Farah, despite strong opposition from Farah's family. The county's death sentences are also clouded by racial bias. The Fair Punishment notes that, since 2010, 87% of death sentences in Duval were imposed against Black defendants, up from 62% over the preceding two decades. Duval County Judge Mark Hulsey, who presided over the 2012 capital murder trial of a black teenager, Terrance Tyrone Phillips, is the subject of ethics charges after he allegedly told a staff member he "wished all blacks could be sent back to Africa on a boat." Analysts also fault substandard defense representation for affirmatively contributing to Duval's overproduction of death sentences. In 2008, Matt Shirk, the county's newly-elected public defender, a former intern of Corey's who had pledged fiscal responsibility and to "never call a cop a liar," slashed the office's budget and fired 10 lawyers, including senior capital litigators. The Nation reports, "Shirk has boasted that he consistently returns money to the state earmarked for the investigation of mitigation evidence for death-penalty clients." He then installed as his deputy and chief of homicide, Refik Eler, who the Fair Punishment Project reports had been defense counsel "on at least 16 cases that resulted in a death sentence." Courts have found that Eler has provided substandard representation in three capital cases, with a fourth ineffectiveness claim recently argued in the Florida Supreme Court. Both Corey and Shirk face challenges in the August 30 Republican primary election, but neither office has a general election challenger.
This is part one of a sixteen-part series on the counties responsible for the most death sentences since 2010.
(E. Bazelon, "Where the Death Penalty Still Lives," The New York Times, online: August 23, 2016, print: August 28, 2016; "Too Broken to Fix: Part I," The Fair Punishment Project, August 23, 2016; J. Pishko, "Is Angela Corey the Cruelest Prosecutor in America?," The Nation, August 11, 2016.) See Prosecutorial Misconduct and Arbitrariness.Tweet