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Colorado Law to Speed Up Death Penalty Appeals Has Faltered and Failed

Thu, 07/28/2016 - 12:16pm

Twenty years ago, frustrated by what they perceived to be the slow pace of capital punishment, Colorado legislators adopted a law to "fix" their death penalty by speeding up appeals. Proponents and opponents of the state's death penalty agree on one thing: the law hasn't worked. As The Denver Post reports, the state law intended to streamline the death penalty appeals process by imposing a two-year deadline for decision and consolidating direct appeals and post-conviction appeals into a "unitary" system of review has failed. Colorado's two death row prisoners affected by the law have spent more than seven years at the first step in the appeals process, with no ruling on their cases in sight. The 1997 law changed the order of death penalty appeals, putting the lengthier post-conviction appeal (involving new evidence and claims of ineffective representation or prosecutorial misconduct) first, before the direct appeal (which involves only issues that were raised by defense counsel at the time of trial). Once the trial court rules on the post-conviction appeal, the Colorado Supreme Court would review and resolve both appeals together, in a single "unitary" appeal proceeding. But while the law originally allowed "no extensions of time of any kind" in post-conviction appeals, a 2010 Colorado Supreme Court ruling allowed extensions to be granted under "extraordinary circumstances" necessary to protect a defendant's procedural rights. Death row inmates Robert Ray and Sir Mario Owens both received extensions. Seven years later, Owens' case has had an extensive evidentiary hearing, but the appeal may have to be redone because the state supreme court fired the judge presiding over the case just before he was expected to issue his ruling. Ray's post-conviction hearings have not yet begun. Christopher Decker, a Denver defense attorney, voiced concerns about whether a fast appeals system would adequately protect defendants' constitutional rights: “If they just speed up the process and strip everyone of due process, we’ll have a very fast outcome that will be worth nothing. It won’t stand up to constitutional review.” Jeanne Adkins, the former state representative who sponsored the 1997 bill to speed up appeals, said, "I’m almost to the point where I would say, ‘Let’s do away with it and save the taxpayers the money.'" Expressing frustration with the death penalty system, she says “[t]he death penalty has become so politicized, truthfully, in the last decade or so in Colorado that I really think that a lot of what the legislature tried to do may actually be pretty pointless now.” 

(J. Ingold, "Colorado law to speed up death penalty is failing, advocates on both sides say," The Denver Post, July 25, 2016; J. Ingold, "Lawyers for Colorado death row inmate called judge’s firing “literally unprecedented”, The Denver Post, July 1, 2016.) See Costs and Recent Legislation.

Newly Constituted Pennsylvania Supreme Court Upholds Grant of New Trial in Death Penalty Case

Wed, 07/27/2016 - 10:20am

On July 19, the newly constituted Pennsylvania Supreme Court unanimously voted to uphold a trial court's order granting a new trial to Philadelphia death row prisoner, Christopher Williams. The court determined that Williams' trial and appellate counsel had been ineffective by failing to investigate and present expert forensic testimony on blood flow and gunshot wounds that would have demonstrated that the version of the murders presented by the prosecution's lead witness was incompatible with the physical evidence. The court also ruled that the trial judge had improperly prevented defense lawyers from cross-examining the state's expert witnesses on key matters. The case was the first time the new court was faced with a lower court judgment granting a capital defendant a new trial. A survey of Pennsylvania capital post-conviction appeals by the Death Penalty Information Center, updated through July 25, 2016, found that the Pennsylvania Supreme Court has issued orders affirming or denying post-conviction requests for new trials by capital defendants 257 times since the Commonwealth enacted its current death penalty statute in 1978. This decision was only the third time in this period that the court had ordered or affirmed the grant of a new trial. By contrast, the court had previously voted more than 99% of the time to uphold capital convictions. It had overturned 12 of the last 13 lower court rulings it had considered since April 2006 that had granted death-row prisoners new trials. The sole exception had been the case of Ronald Champney, in which the court split 3-3, with one vacancy on the court caused by the conviction of a justice for public corruption. The tie vote upheld the decision of the trial court in that case.

Last November, Pennsylvania elected three new justices to the court, filling the positions formerly held by avid death penalty supporters who had been forced to resign as a result of "porngate" (a far-reaching email scandal involving the dissemination of pornographic, misogynistic, racist, and other offensive emails on public computers), ethics violations, or criminal convictions. A fourth leading death penalty proponent, former Chief Justice Ronald Castille—who was the subject of the U.S. Supreme Court's judicial bias ruling in Terrance Williams v. Pennsylvania—left the court at the end of 2014 after reaching the state's mandatory retirement age. 

(See R. Dunham, "Pennsylvania Supreme Court Capital Post-Conviction Appellate Decisions Under Current Death Penalty Statute (1978-2015)," July 25, 2016.)

Defendant Seeks Supreme Court Review of Prosecutorial Ghostwriting, A Widespread Practice in Capital Cases

Tue, 07/26/2016 - 12:49pm

Doyle Lee Hamm (pictured), an Alabama death row prisoner, has asked the United States Supreme Court to consider his case after Alabama's state and federal appellate courts upheld an order in which the trial court rejected his appeal by adopting word-for-word an 89-page order written by the state attorney general's office. In a process The Marshall Project's Andrew Cohen described as "a sham," the court dismissed Hamm's appeal one business day after receiving the prosecution's proposed order, without so much as removing the word "proposed" from the title of the order. In 1987, Hamm's jury had taken only 45 minutes to sentence him to death after his lawyer presented a 19-minute case for life that involved just two witnesses—Hamm’s sister and a bailiff. Twelve years later, Hamm’s post-conviction lawyers argued that he had received ineffective assistance of counsel in that penalty hearing and presented the court with extensive mitigating evidence that his trial lawyer had never investigated. This evidence included a childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse. Cohen reports that the jury never heard that Hamm was "a barely literate, brain-damaged man with little impulse control, someone who might have been perceived as having diminished criminal responsibility." Yet the attorney general's proposed order, signed by the judge, rejected this evidence as merely "cumulative" of the sparse case for life that had been presented at trial. Cohen reports that the practice of judges adopting opinions or orders written by prosecutors, often without making any substantive changes or even correcting typos, is surprisingly widespread in capital cases. In addition to Alabama, similar "ghostwritten" orders have been documented in states such as Georgia, Kentucky, Louisiana, Ohio, Pennsylvania, South Carolina, and Texas. In one Ohio case, a judge was sanctioned for violating the judicial code of conduct and an inmate's death sentence was vacated after the judge drafted an opinion with prosecutors, but in Hamm's case and many others, opinions written by prosecutors and signed by judges have been upheld in state courts and considered reasonable determinations of fact to which courts must defer in later federal proceedings challenging the constitutionality of capital convictions and death sentences. The U.S. Supreme Court has requested that it be provided the full record of Hamm's case and is scheduled to confer about the case on September 26. It could issue an order as early as October 3, the first Monday of its Fall Term, on whether it will hear Hamm's appeal.

(A. Cohen, "The Death Penalty Case Where Prosecutors Wrote the Judge’s ‘Opinion’," The Marshall Project, June 19, 2016; A. Cohen, "Letting Prosecutors Write the Law," The Marshall Project, July 18, 2016.) See Arbitrariness.

NEW RESOURCE: Political Party Platforms on Capital Punishment

Mon, 07/25/2016 - 2:58pm

As support for the death penalty has waxed and waned over the years, the views of the major U.S. political parties, as reflected in their national convention platforms, has changed. To track those changes, DPIC has created a new resource presenting the Democratic and Republican party platform positions on crime and the death penalty from 1960 to 2016. With the most recent views of both the Republican and Democratic parties expressed in their 2016 platforms, the new page now reflects changing views on the death penalty throughout the modern era of capital punishment, as well as in the decade leading up to the Supreme Court's 1972 decision in Furman v. Georgia striking down death penalty laws across the country. This year, the Republican party platform "condemn[s]" the U.S. Supreme Court for what the platform calls the "erosion of the right of the people to enact capital punishment." The draft of the Democratic party convention, expected to be adopted July 25, calls for abolition of the death penalty, which it says "has no place in the United States of America." To provide context for the changing platforms, the page provides public opinion data on the death penalty from Gallup polling since 1960, and opinion by party affiliation since Gallup first began providing that information in 1988. Alongside that data, it includes an Index of Death Penalty Public Opinion developed by Professor Frank Baumgartner at the University of North Carolina, Chapel Hill. (Click image to enlarge.) 

Neither party specifically referenced the death penalty from 1960 to 1972, until the Democrats, shortly after the issuance of the Furman decision, called for abolition. The first Republican platform in this period to discuss capital punishment was in 1976, when it stated, "Each state should have the power to decide whether it wishes to impose the death penalty for certain crimes." While the Republican party has consistently maintained its support for the death penalty, including a call for the reinstatement of the federal death penalty in 1988, the stance of the Democratic party has varied. After leaving the death penalty out of its platform for 20 years, Democrats promoted the expansion of the death penalty in 1996 and 2000, stated it "must not be arbitrary" in 2008 and 2012, and this year, as support for the death penalty among Democrats at large continued to fall, returned to its stance of 44 years ago, supporting the abolition of capital punishment.

(Posted by DPIC, July 22, 2016.) See Public Opinion.

Arkansas Court Puts Lethal Injection Ruling on Hold, Blocking Executions Pending U.S. Supreme Court Review

Fri, 07/22/2016 - 11:00am

On July 21, a divided Arkansas Supreme Court voted 4-3 to deny a request by state death row prisoners to reconsider its recent decision upholding Arkansas' lethal injection protocol and secrecy law, but in another 4-3 vote, the court issued an order staying the mandate, delaying the decision from taking effect until the U.S. Supreme Court has an opportunity to consider an appeal. The stay order prevents the state from setting new execution dates before the U.S. Supreme Court acts on the prisoners' appeal. The same three Arkansas justices who dissented from the court's initial lethal injection decision in June would have granted the rehearing requested by the death row prisoners. However, Arkansas Chief Justice Howard Brill joined the three dissenting justices in staying the ruling pending action by the U.S. Supreme Court on the lethal injection decision. Eight inmates have completed their standard appeals, and Governor Asa Hutchinson had indicated that he intended to set execution dates for those inmates as soon as possible. Executions were previously in doubt because the state's supply of the drug vecuronium bromide, used as a paralytic agent in the state's three-drug execution protocol, had expired. But Arkansas recently announced that it was able to obtain a new supply of the drug from an unnamed source. The state's supply of potassium chloride, the final drug used in executions to stop the prisoner's heart, expires on January 1, 2017. Because of the timeline for petitioning the U.S. Supreme Court, it is unlikely that Arkansas will be able to resume executions before its supply of that drug expires.   

(C. Geidner, "Arkansas Supreme Court Grants Stay, Keeping Executions On Hold," Buzzfeed News, July 21, 2016; C. Lauer, "ARKANSAS COURT DENIES REQUEST FOR NEW EXECUTION LAW HEARING," Associated Press, July 21, 2016; A. DeMillo, "Arkansas governor aims to set execution dates before January," Associated Press, July 13, 2016.) See Lethal Injection.

EDITORIAL: San Jose Mercury News Endorses Death Penalty Repeal, Says Competing Measure Would Magnify Inequity

Thu, 07/21/2016 - 12:02pm

Weighing in on California's competing death penalty ballot initiatives, the San Jose Mercury News editorial board urged voters to support repeal of capital punishment and reject a proposal to speed up executions. The editorial called California's death penalty system, "a failure on every level," noting that the state has spent $4 billion to carry out just 13 executions and the $150 million annual savings the independent Legislative Analysts Office says death penalty abolition would achieve could be better spent "on education, on rehabilitating young offenders or on catching more murderers, rapists and other violent criminals." The editorial also addresses the misperception that the death penalty deters crime: "District attorneys throughout the state argue that the death penalty is a tool to condemn society's most vicious criminals. But this claim flies in the face of actual evidence: For every year between 2008-2013, the average homicide rate of states without the death penalty was significantly lower than those with capital punishment." After describing the racially- and geographically-biased application of the death penalty in California, the editorial argues that Proposition 66, which proposes to speed up executions, "would actually magnify the inequity and sometimes outright injustice in the death penalty's application" by reducing the opportunities to catch mistakes. "In the United States, for every 10 prisoners who have been executed since the death penalty was reinstated in 1976, one person on death row has been set free." Speeding up executions, the editorial says, "is the opposite of what nations concerned with actual justice would do."

(Editorial, "Mercury News editorial: Abolish the death penalty; Vote yes on Proposition 62," The Mercury News, July 15, 2016.) See Editorials.

40 Years After Key Supreme Court Decision, Constitutional and Practical Problems Plague Death Penalty

Mon, 07/18/2016 - 12:42pm

The execution of John Conner on July 15 ended a two-month period without executions in the United States, the longest such period in the country since 2007-2008. A range of state-specific issues have contributed to this stoppage, including questions about the constitutionality of state death penalty practices, problems relating to lethal injection drugs and state execution protocols, and the fallout from botched executions. In an article for The American Prospect, Professor Frank Baumgartner outlines research showing that the death penalty, as applied today, remains error-prone, racially biased, and arbitrarily applied. Forty years after the U.S. Supreme Court's decision in Gregg v. Georgia allowed executions to resume, Baumgartner argues, the death penalty continues to fall short of meeting the constitutional requirements set forth by the Court. Baumgartner highlights studies that have found that the approximately one percent of death-eligible homicides that have resulted in executions are not necessarily the worst crimes, but rather, the crimes that happened to occur in jurisdictions that are prone to using the death penalty or that involved a white victim. As Chris Geidner explains in BuzzFeed, only three states - Georgia, Missouri, and Texas - have carried out any executions since January because other states are grappling with legal challenges to their sentencing procedures and lethal injection protocols, inability to obtain lethal injection drugs, or sometimes a combination of several issues. Challenges to the constitutionality of death penalty practices in Florida, Alabama, and Delaware—where non-unanimous jury recommendations for death have accounted for more than 20% of the nation's death sentences—have brought executions to a halt in those states and statutes in Nebraska and Montana may also face constitutional challenges for the role judges play in imposing death sentences in those states. The fallout from botched executions have halted executions in Arizona, Ohio, and Oklahoma. And gubernatorial moratoria and a variety of lethal injection issues have also contributed to the drop in executions. Geidner calls the situation "unprecedented," and predicts that the number of executions in the second half of 2016 will be even lower than the 14 carried out in the first half.

(F. Baumgartner, "Forty Years of Experience with the ‘New and Improved’ Death Penalty, 1976–2016," The American Prospect, July 5, 2016; C. Geidner, "Practically Speaking, The Death Penalty Is Disappearing In The United States," BuzzFeed News, July 11, 2016.) See Lethal Injection.

Court Hearing Under Way on Constitutionality of Federal Death Penalty

Fri, 07/15/2016 - 10:38am

A court hearing is under way in the capital trial of Donald Fell in a Vermont federal district court challenging the constitutionality of the federal death penalty. This week, death penalty experts testified for the defense about systemic problems Fell's lawyers say may render the federal death penalty unconstitutional. Fell was sentenced to death in 2006, but was granted a new trial because of juror misconduct. The hearing began on July 11 and is scheduled to continue until July 22. Judge Geoffrey W. Crawford, who is presiding over the hearing and is set to preside over Fell's second trial in 2017, said the hearing will, "create a rich, factual record for higher courts with broader authority to rule on the big questions." On Monday, Craig Haney, a psychology professor at the University of California Santa Cruz, discussed research on the effects of solitary confinement, the conditions under which Fell has been held on death row. "According to the National Commission on Correctional Health Care, anything greater than 15 days is inhumane, cruel and degrading treatment," Haney said. On Tuesday, Michael Radelet, a sociology professor at the University of Colorado, testified about the decline of the death penalty both in use and in public opinion, saying, "Attitudes toward the death penalty have changed more rapidly than any other social issue other than gay marriage." Radelet testified that research has disclosed no evidence that the death penalty deters murder or affects overall murder rates. He also emphasized the prevalence and causes of the 156 wrongful capital convictions as a major problem with capital punishment. “Last year six people were released, most having served 25 years. In 2014, seven were released from death row as innocent. One had been in for 30 years," he said. "The number one cause of error is prejudicial prosecutorial testimony. Prosecutorial misconduct, false confessions, fraudulent forensics.”

(K. Phalen Tomaselli, "Expert: death penalty inhumane," Barre Montpelier Times-Argus, July 12, 2016; K. Phalen Tomaselli, "Fell: Death penalty views changing," Barre Montpelier Times-Argus, July 13, 2016.) See Studies and Innocence.

Georgia Prepares to Execute John Conner Despite Evidence of Intellectual Impairment, Traumatic Upbringing

Thu, 07/14/2016 - 12:01pm

Georgia is continuing with preparations to execute John Conner (pictured) on July 14 after the state's Board of Pardons and Paroles denied his clemency petition and the Georgia Supreme Court denied him a stay of execution. In the clemency proceedings, Conner's attorneys presented evidence that he is intellectually disabled and that he was raised in poverty and extreme violence in a home filled with chronic drug and alcohol abuse and in which sexual and emotional abuse were the norm. Conner's lawyers wrote that, at a young age, he was "indoctrinated into a life that normalized drugs, alcohol, and violence, so much so that he drunkenly beat a friend to death in reaction to a lewd comment." They also said Conner's teachers had identified him as intellectually disabled. Conner's inexperienced trial attorney failed to present any evidence at trial or in the sentencing hearing and his appellate lawyer was not provided any resources to investigate his case. As a result, his lawyers said, neither the jury nor the state appellate courts heard any mitigating evidence of his intellectual impairments and horrifying upbringing, which they say might have changed the jury's sentencing decision. Though a federal court later ruled that his evidence of intellectual impairment did not reach the level of disability that would render him ineligible for execution, his lawyers argued that the court did not consider the mitigating aspects of his intellectual impairments or whether "Mr. Conner's poverty-, violence-, and trauma-filled family background ... should have justified a sentence less than death." On July 12, the Georgia Supreme Court declined to review Conner's claim that his execution more than 34 years after being sentenced to death constitutes cruel and unusual punishment and voted 5-2 to deny him a stay of execution. [UPDATE: Georgia executed Conner shortly after midnight on July 15. It was the sixth execution conducted by the state in 2016, more than in any previous calendar year since executions were allowed to resume in 1976.]

(K. Brumback, "PAROLE BOARD DENIES CLEMENCY FOR GEORGIA DEATH ROW INMATE," Associated Press, July 13, 2016.) See Intellectual Disability and Arbitrariness. Read the Georgia Supreme Court's order denying a stay, and dissenting opinion here.

BOOKS: "Race and the Death Penalty: The Legacy of McCleskey v. Kemp"

Wed, 07/13/2016 - 4:12pm

In a landmark ruling in McCleskey v. Kemp in 1987, a bitterly divided U.S. Supreme Court voted 5-4 vote that statistical evidence of racial discrimination in the application of the death penalty was insufficient to overturn an individual death sentence. A new book, Race and the Death Penalty: The Legacy of McCleskey v. Kemp, edited by David P. Keys, associate professor of criminal justice at New Mexico State University and R.J. Maratea of the Youth Research and Resource Center, Inc. explores the lasting effects of the McCleskey ruling. Race and the Death Penalty contains 12 chapters by death penalty experts, each discussing a different aspect of race in the post-McCleskey death penalty system, including research on the racial disparities in capital sentencing that persist today. In a review, Scott William Bowman, Assistant Professor of Criminal Justice at Texas State University, said the book "does a marvelous job of balancing the historical and contemporary narratives of how race and racism interact with the ongoing application of the death penalty.... Keys and Maratea have rejuvenated the dialogue."

(D. P. Keys and R. J. Maratea, editors, "Race and the Death Penalty: The Legacy of McClesky v. Kemp," Lynne Rienner, 2016.) See Books and Race.

NEW VOICES: Former FBI Agent Now Opposes Death Penalty, Seeks Exoneration of California Death Row Prisoner Kevin Cooper

Tue, 07/12/2016 - 11:28am

After 45 years in law enforcement, including 24 years with the Federal Bureau of Investigation, homicide investigator Tom Parker (pictured) has changed his view on the death penalty. "There were times during my career when I would gladly have pushed the button on a murderer,” he said. “Today, my position would be, life without parole." Parker says that seeing corrupt homicide investigations convinced him that innocent people could be executed. As result, he now opposes capital punishment and is supporting California's Justice That Works Act, a ballot measure that would repeal the death penalty. Parker says the worst case of police misconduct he has seen in a capital case is that of California death row prisoner Kevin Cooper. Parker has re-investigated the case pro bono for five years in an effort to free Cooper. “I’m convinced he was framed. We arrest and convict innocent people almost every day in this country. As long as we have a death penalty in America, we will continue to execute innocent people.” Cooper was sentenced to death for four 1983 murders, and has completed his appeals, meaning that he could be executed if California resumes lethal injections. Parker says Cooper's conviction was a result of "police tunnel vision" - making the evidence fit the suspect, rather than seeking a suspect who fit the evidence. Working as a consultant with Cooper's attorneys, Parker has found witnesses who say they saw three white men, two of whom wore blood-spattered clothing, acting strangely at a bar near the crime scene on the night of the murders. The initial statement from the one survivor of the crime pointed to three white men as the perpetrators, but Cooper is black. Cooper recently received support from the American Bar Association in his efforts to receive clemency from Governor Jerry Brown.

(M. Burns, "From FBI Boss to Death Penalty Foe," Santa Barbara Independent, July 7, 2016.) See New Voices and Innocence

Nebraska Exonerees Awarded $28 Million, Prosecutor Says Case Made Him Oppose Death Penalty

Mon, 07/11/2016 - 12:36pm

A federal court jury has awarded six Nebraska exonerees (pictured, at their exoneration) $28 million in damages for official misconduct that led to their wrongful convictions in the 1985 rape and murder of Helen Wilson. The "Beatrice Six," as the group came to be known, were falsely accused of the killing and threatened with the death penalty. Five of the defendants—James Dean, Kathy Gonzalez, Debra Shelden, Ada JoAnn Taylor, and Tom Winslow—agreed to plea bargains or pled no contest to avoid possible death sentences. The sixth—Joseph E. White—demanded a jury trial, and was convicted. All six were exonerated by DNA evidence tested in 2008. On July 6, the jury found that the Gage County, Nebraska Sheriff's Office had been reckless in its investigation and had fabricated evidence. The $28 million damages award exceeds the entire annual budget of Gage County by $1 million, and the county does not have an insurance policy to cover court judgments resulting from law enforcement misconduct. At a press conference on July 8, Randall Rintour, the Gage County prosecutor who reopened the Beatrice Six case in 2008, said the case had changed his views on the death penalty. “It happened right here in our backyard. We can’t say it’s not possible to make a mistake because we did, we made a huge one," he said. "Our ability to execute all the ... murderers we can is not worth the death of one innocent individual at the hands of the state." State Sen. Burke Harr, a former Douglas County deputy prosecutor, joined Rintour in urging Nebraskans to retain the state's repeal of the death penalty, which is the subject of a November referendum. Sen. Harr, one of 30 legislators who voted in favor of repeal, said, "The death penalty is just that, it’s forever. There’s no coming back."

(J. Duggan, "Beatrice Six win millions in civil rights claims, but 'no amount of money' will replace years lost, one family says," Omaha World-Herald, July 8, 2016; J. Duggan, "Ex-prosecutor opposes death penalty after 'huge' mistake in Beatrice Six case," Omaha World-Herald, July 9, 2016.) See Innocence and New Voices.

ABA Criminal Justice Report Covers Key Death Penalty Trends

Fri, 07/08/2016 - 1:52pm

In a chapter from the recently released American Bar Association publication, The State of Criminal Justice 2016, Ronald J. Tabak, chair of the Death Penalty Committee of the ABA's Section of Individual Rights and Responsibilities, describes significant trends and recent cases related to capital punishment. Tabak highlights the ongoing declines in death sentences and executions across the United States, as well as the increasing concentration of the death penalty in a small number of jurisdictions. The chapter details the lethal injection controversies that have slowed executions in many states and halted them in others. It also includes sections on key Supreme Court cases, particularly Glossip v. Gross, and on innocence, emphasizing recent exonerations. Tabak concludes with a prediction: "As more and more people recognize that our capital punishment system is inconsistent with both conservative and liberal principles, and with common sense, the opportunity for its abolition throughout the United States will arrive."

(R. Tabak, "Capital Punishment," The State of Criminal Justice 2016, June 2016.) See Studies.

Status of Arkansas Death Penalty Uncertain Following Expiration of Lethal Injection Drugs

Thu, 07/07/2016 - 11:26am

Just days after a split Arkansas Supreme Court upheld the state's execution protocol, Arkansas' supply of vecuronium bromide—a paralytic agent used in the state's three-drug lethal injection protocol—expired, leaving the status of future executions unclear. At that time, Governor Asa Hutchinson said that he wanted the Department of Correction to obtain a new supply of the drug rather than change the state's method of execution. In 2015, the state spent $25,000 for lethal injection drugs and set eight execution dates. Death row prisoners challenged the state's execution protocol and secrecy law, which they say violated the settlement in a challenge to an earlier protocol. The new litigation, which raised critical questions about whether the new protocol might result in an unconstitutionally cruel and unusual execution, took nearly a year to resolve, ending just before the June 30 expiration date of the execution drugs. Because every major manufacturer of pharmaceuticals in the U.S. opposes the use of their products in executions, Governor Hutchinson said it is "unknown" whether Arkansas will be able to obtain a new supply of the drugs. He again expressed hesitation at the idea of changing the state's lethal injection protocol, saying, "You don't want to deviate from what's already been tested and approved[;] otherwise you're starting all over again." The Arkansas Department of Correction would not disclose what efforts it has made to obtain new execution drugs. The state last carried out an execution in 2005.  

(D. Petrimoulx, "Expiring Drugs Leave Questions About AR Death Penalty," ArkansasMatters.com, June 30, 2016.) See Lethal Injection.

Fair Punishment Project Issues Report on Deadliest Prosecutors

Thu, 06/30/2016 - 11:24am

A new report by Harvard Law School's Fair Punishment Project has found that a small number of overzealous prosecutors with high rates of misconduct have a hugely disproportionate impact on the death penalty in the United States. The report, "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty," shows that, by themselves, these prosecutors are responsible for more than 440 death sentences, the equivalent of 15% of the entire U.S. death row population today. Exploring what it calls "the problem of personality-driven capital sentencing," the report details the effects of Joe Freeman Britt of Robeson County, North Carolina; Robert Macy of Oklahoma County, Oklahoma; Donald Myers of the 11th Judicial District of South Carolina; Lynne Abraham of Philadelphia, Pennsylvania; and Johnny Holmes of Harris County, Texas. Britt, Macy, and Myers personally prosecuted a combined 131 cases that resulted in death sentences, while Abraham and Holmes oversaw offices that the report says imposed 108 and 201 death sentences, respectively. They also disproportionately sent innocent people to death row, prosecuting 1 out of 20 of the nation's death-row exonerees. The report found similar patterns involving these prosecutors, including high rates of prosecutorial misconduct, statements and actions that revealed a win-at-all-costs mentality, and a sharp decrease in death sentences once they and their proteges left office. Britt, Macy, and Myers were found to have committed misconduct in one-third to 46% of the death penalty cases they prosecuted. Prosecutors in Abraham's and Holmes' offices were found to have engaged in misconduct, including racially-biased jury selection and failures to disclose favorable evidence. Of the five prosecutors profiled in the report, only Myers—who is not seeking re-election—is still in office. After the other four prosecutors left office, the number of death sentences has declined significantly. Robeson County has imposed two death sentences in the last 10 years, Oklahoma County and Philadelphia County have each imposed three in six years, and Harris County dropped from an average of 12 death sentences a year during Holmes' last decade as prosecutor to one a year since 2008.

The report also highlights eight other prosecutors who have collectively obtained more than 100 death sentences. The report says that the "over-aggressive and reckless" fervor with which the featured prosecutors pursue death sentences is "evidence that the application of the death penalty is—and always has been—less about the circumstances of the the offense or the characteristics of the person who committed the crime, and more a function of the personality and predilections of the local prosecutors entrusted with the power to seek the ultimate punishment." It concludes, "[t]his overzealous, personality-driven, win-at-all-costs pursuit of capital punishment seriously undermines the legitimacy of the death penalty today."

("America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty," Fair Punishment Project, June 30, 2016; E. Pilkington, "America's deadliest prosecutors: five lawyers, 440 death sentences," The Guardian, June 30, 2016; M. Ferner, "These Are America’s ‘Deadliest’ Prosecutors," The Huffington Post, June 30, 2016.) See Arbitrariness and Prosecutorial Misconduct.

BOOKS: "Executing Grace"

Wed, 06/29/2016 - 12:07pm

In his new book, Executing Grace, evangelical Christian speaker, activist, and author Shane Claiborne weaves together personal narratives, theology, and research to make a Christian case against the death penalty. Claiborne says "[t]he death penalty did not flourish in America in spite of Christians but because of us." Arguing that "[w]e can't make death penalty history until we make death penalty personal," he tells the stories of people affected by the death penalty in a variety of ways: family members of murder victims, executioners and corrections officers, death row exonerees, and death row inmates. Each chapter closes with an individual story he calls "Faces of Grace." Claiborne also explores biblical history and the Bible's teachings on capital punishment, forgiveness, and mercy. Archbishop Desmond Tutu said, "In these pages, Shane Claiborne exposes the harm that the death penalty does to us as humans–to executioners, judges, governors, to the convicted and the exonerated, and to all of us as citizens. Here is an invitation to build a world where we reject all forms of killing, both legal and illegal. It is a call to join a movement where grace gets the last word. Shane Claiborne’s brilliant book reminds us that without forgiveness, there is no future.”

(S. Claiborne, "Executing Grace," HarperCollins, 2016.) See Books and Religion. Shane Claiborne will speak at the Annual Fast and Vigil to Abolish the Death Penalty in Washington, DC on June 30.

Arizona Lacks Supply of Execution Drugs, "Presently Incapable of Carrying Out" Executions

Tue, 06/28/2016 - 11:01am

In a court filing in the federal lawsuit challenging its execution procedures, Arizona officials have declared that the state does not have the drugs necessary to carry out an execution, and is currently unable to obtain them. The filing states, "the Department’s lack of the drugs and its current inability to obtain these drugs means that the Department is presently incapable of carrying out an execution." Arizona has four separate multi-drug protocols it may use in executions. One involves the use of the anti-anxiety drug, midazolam, to sedate the prisoner before the other drugs are administered. The other three protocols involve the use of either pentobarbital or sodium thiopental. The state used midazolam in the botched execution of Joseph Wood in 2014, which was the last execution conducted in Arizona. The state attempted to import 1,000 vials of sodium thiopental from a supplier in India, but the shipment was seized at Phoenix airport by the Food and Drug Administration, which said the importation of pharmaceuticals without an approved medical purpose violated federal law. In its recent court filing, Arizona announced that it will abandon the use of midazolam and indicated that it has been unable to obtain the other sedatives. After Wood's execution, death row inmates challenged the state's lethal injection protocol, which called for midazolam followed by a paralytic drug, on the grounds that, "midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain." In May, U.S. District Court Judge Neil Wake permitted that claim to move forward, effectively delaying all executions until after the state's supply of midazolam had expired. Dale Baich, an attorney for the Arizona prisoners challenging the protocol, said, "As we have said all along, midazolam is not an appropriate drug for use in executions....Arizona now becomes the second state to abandon the experimental use of this drug in executions. Now, more than ever, we need to ensure that Arizona's execution protocol comports with the constitutional requirements for a humane execution....We need a much more specific, clear plan that has been vetted by the court and is understood by the public." A hearing will be held on June 29.

(C. McDaniels, "There’s A Standoff Between States And The Feds Over Illegal Execution Drugs," BuzzFeed, June 26, 2016; C. Geidner, "Arizona 'Presently Incapable Of Carrying Out An Execution,' State Lawyers Say,” BuzzFeed, June 24, 2016; M. Kiefer, "As another drug becomes unavailable, execution by lethal injection in Arizona remains uncertain," The Arizona Republic, June 24, 2016;  D. Baich, "Attorney Statement in Response to ADC's Announcement About Changes to Its Execution Protocol," June 24, 2016.) See Lethal Injection. Read the joint filing from June 24, 2016. Read the state's notice of change to the lethal injection protocol.

Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight Executions

Fri, 06/24/2016 - 11:32am

A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.

(C. Lauer, "ARKANSAS COURT UPHOLDS EXECUTION PROTOCOL, DRUG SECRECY LAW," Associated Press, June 23, 2016.) See Lethal Injection.

Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years

Thu, 06/23/2016 - 10:31am

The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?" 

(B. Rankin, "Georgia executions rise, while death sentences plummet," Atlanta Journal-Constitution, June 18, 2016.) See Arbitrariness and Sentencing.

Cost of Pennsylvania Death Penalty Estimated At $816 Million, Could Reach $1 Billion

Wed, 06/22/2016 - 1:11pm

Pennsylvania's taxpayers have paid an estimated $272 million per execution since the Commonwealth reinstated its death penalty in 1978, according to an investigation by The Reading Eagle. Using data from a 2008 study by the Urban Institute, the Eagle calculated that cost of sentencing 408 people to death was an estimated $816 million higher than the cost of life without parole. The estimate is conservative, the paper says, because it assumes only one capital trial for each defendant and it does not include the cost of cases in which the death penalty was sought but not imposed. The total cost may exceed $1 billion. An earlier investigation had estimated a cost of at least $350 million, based on the 185 inmates who were on death row as of 2014, but additional research into the cases that had already been overturned, or in which inmates died or were executed prior to 2014, revealed a total of 408 people who had been sentenced to death. Pennsylvania has carried out only three executions under its current death penalty statute. State Senator Stewart Greenleaf, a Republican and chairman of the Senate Judiciary Committee, said, "We're scratching for every dollar that we can right now. To continue to spend that kind of money is hard to justify." The Eagle's investigation also uncovered geographic disparities in the application of the death penalty. 60% of all death sentences came from just four counties: Philadelphia, Allegheny, York, and Berks. Death sentencing rates also varied dramatically, with about a third of counties handing down zero death sentences, while three (Columbia, Cumberland, and Northumberland) had 5 or more death sentences per 100 murders. Somerset District Attorney Lisa Lazzari-Strasiser, who has filed one death penalty case in five years as District Attorney, said, "I think our system is broken. It doesn't do justice to any one of the stakeholders, in my opinion, not the taxpayers, the victims or the defendants. It doesn't work."

(N. Brambila, "Executing Justice: Pennsylvania's death penalty system costs $816 million," The Reading Eagle, June 17, 2016; N. Brambila, "Executing Justice: The discretionary nature of the death penalty in Pennsylvania," The Reading Eagle, June 20, 2016.) See Costs and Arbitrariness.