A majority of Americans prefer life without parole to the death penalty, according to the 2015 American Values Survey by the Public Religion Research Institute. The poll of 2,695 Americans found that 52% preferred life without parole, while 47% preferred the death penalty. The poll found that respondents' views on capital punishment tracked their views about racial justice and differed greatly by race. 53% of all Americans agreed with the statement, "A black person is more likely than a white person to receive the death penalty for the same crime," while 45% disagreed. But 82% of blacks and 59% of Hispanics agreed with the statement, while fewer than half (45%) of whites agreed. Only 37% of those who saw racial disparities in the application of the death penalty supported capital punishment, while the death penalty drew support from 59% of those who disagreed that blacks were more likely than whites to receive death sentences. White Americans' views on this question differed greatly by social class, with 54% of college-educated whites saying blacks were more likely than whites to receive the death penalty and 58% of white working-class Americans saying this was not the case. Views about the perceived fairness of the death penalty also split sharply along partisan lines. 64% of Republicans disagreed with the statement on racial disparities, as compared to 28% of Democrats. Independents were evenly divided. Overall, about two-thirds (65%) of Democrats said they preferred life without parole, while 67% of Republicans said they preferred the death penalty.
("Survey|Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey," Public Religion Research Institute, November 17, 2015; Full Report; News Release.) See Public Opinion and Race.Tweet
Caddo Parish Elects First Black District Attorney As Spotlight Shines on Death Penalty and Jury Selection Controversies
Caddo Parish, Louisiana, known nationally for its aggressive pursuit of the death penalty, has elected its first black District Attorney. In a November 21 runoff election conducted against the backdrop of controversial remarks about the death penalty by the current DA and a threatened civil rights lawsuit over systemic racial discrimination by Caddo Parish prosecutors in jury selection, former judge James E. Stewart, Sr. defeated current Caddo Parish prosecutor Dhu Thompson, 55% to 45%. Ten days before the election, the Roderick and Solange MacArthur Justice Center announced that it intends to sue Caddo Parish over the District Attorney's office's practice of striking black citizens from juries at three times the rate of other jurors. James Craig, co-director of the New Orleans-based non-profit law center, called the racially-biased jury strikes "a blight on our criminal justice system." A recent study by the human rights group Reprieve Australia had revealed that Caddo prosecutors used peremptory strikes against 46% of black jurors but only 15% of other jurors. (Click image to enlarge.) The study showed that Thompson's exercise of juror challenges was even more racially disproportionate, striking more than half of all prospective black jurors but fewer than 1 in 6 of all other jurors. Craig said that the announcement of the suit was not intended to influence the election: "This is not a problem of one person. This is a culture that needs to be acknowledged and changed...In the absence of concrete, specific changes in the office’s culture and approach to jury selection, this practice will continue under the administration of either of the two final candidates for district attorney. For this reason, no matter who prevails in the special election this month, the MacArthur Justice Center will proceed with the federal civil rights lawsuit that we are preparing to file." The suit is seeking an injunction to block practices that result in under-representation of blacks on juries. In his election-night victory remarks, Stewart pledged "to bring professionalism and ethics back to the district attorney’s office."
(A. Burris, "Caddo DA office facing federal civil rights lawsuit," Shreveport Times, November 13, 2015; A. Aguillard, "Days before election, Caddo Parish DA accused of violating black jurors' rights," Louisiana Record, November 16, 2015; A. Burris, "Stewart wins Caddo DA race," Shreveport Times, November 22, 2015.) See Race and Arbitrariness.Tweet
POLL: Majority of Oklahomans Favor Replacing Death Penalty With Life Without Parole Plus Restitution
A majority of Oklahoma voters favor abolition of the death penalty if it is replaced with a sentence of life without parole plus restitution, according to a new poll commissioned by News 9/News on 6. The survey by the non-partisan SoonerPoll.com found that 52.4% of Oklahomans would support abolition of the death penalty if the state replaced its system of capital punishment with the alternative sanction of life without parole, plus a requirement that the inmates pay restitution to victims' families. Nearly a third of respondents (30.5%) said they would "strongly support" abolition if this alternative punishment option were offered. The gap between support for replacing the death penalty versus retaining it as is was more than 18 percentage points, with 34.0% of respondents saying they would oppose abolition. A poll commissioned by The Oklahoman in October that asked the general question whether Oklahomans supported or opposed the death penalty reported that 67% of Oklahomans expressed support for the death penalty, down from 74% support reported in a 2014 poll by the Tulsa World. The Oklahoman poll showed that, at the same time, half of Oklahomans favored a moratorium on the state's death penalty. “A lot of people are in support of the death penalty right now, because they were never given an alternative,” said Bill Shapard, founder of SoonerPoll.com. “Right now the death penalty is really the only alternative to those who have committed some of the worst crimes in our society. But yet, now we are given an alternative, people are open to that.” The results of the Oklahoma polls are consistent with national polls, which find that respondents say they support the death penalty in the abstract, but prefer life without parole over the death penalty when offered a choice between the two.
The most recent polls polls have been conducted against the backdrop of ongoing investigations into a series of irregularities in recent Oklahoma executions. Oklahoma corrections officials violated the state's execution protocols in the botched execution of Clayton Lockett, in executing Charles Warner using a drug that was not authorized in its protocol, and in the failed execution of Richard Glossip, which was called off at the last minute when prison officials realized they had obtained the wrong execution drug.
("WEB EXCLUSIVE POLL: More Oklahomans Oppose Death Penalty If Given Alternative," News9, November 18, 2015; G. Brewer, "New poll shows more than half of Oklahomans support life sentences over the death penalty," The Oklahoman, Nov. 20, 2015; G. Brewer, "Oklahomans give overwhelming support to death penalty, poll finds," The Oklahoman, Oct. 26, 2015.) See Public Opinion.Tweet
Georgia is scheduled to execute Marcus Johnson (pictured) on November 19 despite ongoing concerns about his innocence. The execution would be Georgia's fifth since December 2014 - each raising serious questions about systemic problems in Georgia's application of the death penalty. In a commentary for The Marshall Project, Sara Totonchi, executive director of the Southern Center for Human Rights, says these cases "are emblematic" of death sentences imposed before Georgia's statewide capital defense office opened in 2005 and "encapsulate what’s wrong with capital punishment in Georgia." In December 2014, Georgia executed Robert Wayne Holsey, whose drunk lawyer failed to investigate and present mitigating evidence that Holsey had an IQ of 70 and had been seriously abused as a child. The lawyer was later imprisoned and disbarred for misconduct in another case. Andrew Brannan, a decorated Vietnam veteran with bi-polar disorder who was declared 100% disabled by the Veterans Administration as a result of combat-related PTSD, was executed in January, the first U.S. execution in 2015. The jury was never heard details of Brannan's military service or disability. Two weeks later, Georgia executed Warren Hill, a man with intellectual disabilities. A judge found that Hill had proven his disability by a "preponderance of the evidence," the standard of proof required by every other death penalty state, but Georgia requires defendants to prove intellectual disability "beyond a reasonable doubt." Even after the state's doctors admitted that Hill met this higher standard, the state and federal courts refused to consider this evidence on technical procedural grounds and Hill was executed. Kelly Gissendaner's execution in September hghlighted a different type of arbitrariness: she was executed for planning to murder her husband, while her boyfriend, who actually committed the killing, made a deal with prosecutors to serve a life sentence and will be eligible for parole in seven years. Finally, Marcus Johnson's case raises concerns that Georgia may be executing an innocent man. The DNA evidence from the murder scene that was tested was inconclusive, other blood evidence was not tested, and none of Johnson's DNA was found on or in the car where the victim's body was found. The trial judge wrote to the Georgia Supreme Court that the evidence in Johnson's case "does not foreclose all doubt respecting the defendant’s guilt."
(S. Totonchi, "Five Things Wrong With Georgia's Death Penalty," The Marshall Project, November 18, 2015; R. Cook, "Debate continues whether Marcus Ray Johnson murdered 35-year-old woman," Atlanta Journal-Constitution, November 15, 2015.) See Arbitrariness, Intellectual Disability, and Innocence. [UPDATE: Georgia executed Marcus Ray Johnson on November 19, 2015.]Tweet
Raphael Holiday (pictured) is scheduled to be executed in Texas on November 18 after appeals lawyers who were appointed to his case unilaterally decided not to seek clemency or pursue additional appeals and then opposed Holiday's efforts to replace them with lawyers who would. James "Wes" Volberding and Seth Kretzer say that they were unable to find new evidence on which to base any appeal and that seeking clemency from Texas Gov. Greg Abbott would give Holiday "false hope" and is pointless. When another attorney, Gretchen Sween, stepped in to help Holiday find new counsel, his current attorneys opposed her efforts to replace them. They then filed a clemency petition prepared so hastily that it twice gives the wrong execution date. The lawyers say they were exercising professional discretion in abandoning efforts to spare Holiday's life, but death penalty experts assert that counsel are required to pursue all available avenues to stop a client's execution. Stephen Bright, a Yale law professor and president of the Southern Center for Human Rights, said that in decades of practice in capital cases he has never seen appointed lawyers fight so vigorously to prevent their client from retaining new counsel. "This seems unconscionable," he said. "Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can." Jim Marcus, a University of Texas law professor and veteran death penalty lawyer, agreed that Holiday's attorneys are legally required to continue pursuing appeals: "There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether. The latter is not really permissible ...."
(B. Grissom, "Condemned man’s lawyers stop helping, cite ‘false hope’," Dallas Morning News, November 16, 2015.) See Arbitrariness and Representation. [UPDATE: Texas executed Raphael Holiday on November 18, 2015.]Tweet
In light of the FBI's acknowledgement in April that flawed forensic testimony by its expert hair-comparison analysts had tainted at least 268 cases, including 32 death penalty cases, forensic science is coming under increased scrutiny. A commentary in the Boston Review argues that "mounting horror stories," including instances of crime-lab "corruption and dysfunction, have created a moment of crisis in forensic science." Referencing "scores of individual cases in which forensic science failures have led to wrongful convictions" and highlighting the wrongful execution of Cameron Todd Willingham in Texas based upon scientifically invalid arson testimony, the commentary questions the continued high degree of confidence accorded forensic science testimony in the courts. A 2009 report by the National Academy of Sciences (NAS) sharply critiqued many of the techniques used by forensic examiners, saying, "Many forensic tests—such as those used to infer the source of tool marks or bite marks—have never been exposed to stringent scientific scrutiny." Even widely-accepted practices like fingerprint matching had no mechanism for independent confirmation, relying entirely on the examiner's opinion. Ultimately, the NAS report concluded, "With the exception of nuclear DNA analysis . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." Yet even DNA evidence can be tainted by faulty practices or intentional malfeasance. Close affiliations between forensic laboratories and police or prosecutors raise concerns of bias. As former FBI investigator Frederic Whitehurst put it, forensic scientists can "run into a sledgehammer" when their findings contradict the theory that prosecutors are trying to advance.Tweet
Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.
(J. Herskovitz, "U.S. death penalties, executions slow as capital punishment is squeezed," Reuters, November 15, 2015.) See Sentencing and Executions.Tweet
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit has overturned a California federal district court decision that had declared California's death penalty unconstitutional, saying that the issue presented "a novel constitutional rule" that was beyond the power of the federal courts to address in a habeas corpus proceeding. The appeals court did not address the constitutionality of California's death penalty, saying that because of technical procedural rules "we may not assess the substantive validity of [this] claim." U.S. District Court Judge Cormac Carney had ruled in 2014 in the case of Ernest D. Jones that the lengthy delays and arbitrariness in California's death penalty system rendered it unconstitutionally cruel and unusual. Judge Susan P. Graber (pictured), who wrote the 9th Circuit's decision, said, "Many agree with petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary." However, she said "the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing re-examination of final judgments based upon later emerging legal doctrine." California has the largest death row in the nation, but has carried out only 13 executions since 1978, and none since 2006. Jones has been on California's death row since 1995. The appeals court decision sends the case back to the district court to address other challenges to the constitutionality of Jones' conviction and death sentence that Judge Carney did not decide when he declared California's death penalty unconstitutional.
(D. Levine and E. Johnson, "U.S. appeals court rejects challenge to California death penalty," Reuters, November 12, 2015; Almasy, "California's death penalty process upheld by federal appeals court," CNN, November 12, 2015; M. Dolan and J. Serna, "Federal appeals court upholds California's death penalty," Los Angeles Times, November 12, 2015.) See Arbitrariness.Tweet
Oklahoma Execution Irregularities Mirror Previous Errors By Arizona Involving Same Corrections Official
Robert Patton (pictured), the director of the Oklahoma Department of Corrections who oversaw the botched execution of Clayton Lockett, the use of the wrong third drug in the execution of Charles Warner, and the failed execution of Richard Glossip, was also involved in a number of Arizona executions that violated that state's execution protocol, a BuzzFeed investigation revealed. Lockett was Oklahoma's first execution under Patton, just two months after he became corrections director. For the previous five years, he was part of the team that planned and oversaw executions in Arizona. A 2011 deposition given by Patton in a federal court challenge to Arizona's execution protocol disclosed similar failures to adhere to state execution protocols. BuzzFeed reports that, 3 years before the Lockett execution, Patton had been involved in several Arizona executions in which corrections personnel could not find an arm vein suitable for execution and instead, as in Lockett's execution, inserted the IV into an artery in the executed prisoner's groin. In direct violation of Arizona's execution protocol, the executioners covered the IV with a sheet, risking that officials would be unable to detect problems with the IV. In investigating the Lockett case, the Oklahoma Department of Public Safety found that the same deviation from Oklahoma's protocol prevented executioners from discovering problems with the IV until Lockett began to move during the execution, at which point prison personnel discovered clear liquid and blood under the sheet and noticed that Lockett had swelling "between the size of a golf ball and tennis ball" at the IV insertion site. Patton then called off the execution, but Lockett died 45 minutes after the execution began. In his 2011 deposition, Patton admitted that he never checked the forms that identified which drugs and what amounts of those drugs were to be used in Arizona executions. In January 2015, using the wrong third drug in its three-drug protocol, Oklahoma executed Charles Warner. An investigation into that execution is ongoing, and state officials have not said who was aware at the time that the wrong drug was being used. The state also halted the execution of Richard Glossip in September when prison officials became aware two hours before the execution that they had obtained the same wrong drug.
(C. McDaniel, "Execution Mistakes Followed Corrections Director From Arizona To Oklahoma," BuzzFeed, November 11, 2015.) See Lethal Injection.Tweet
In an op-ed for USA Today, three retired generals call for systemic review of the status of veterans on death row nationwide and urge decision-makers in capital cases to seriously consider the mental health effects of service-related PTSD in determining whether to pursue or to impose the death penalty against military veterans. Calling DPIC's new report, "Battle Scars: Military Veterans and the Death Penalty," "a wake-up call for an issue that few have focused on," Brigadiers General (Ret.) James P. Cullen, David R. Irvine, and Stephen N. Xenakis write that "[c]ountless veterans have endured violence and trauma that few others can fully imagine" but defense attorneys in capital cases "are often not adequately prepared to investigate and present" this evidence and prosecutors and judges often treat it dismissively. They say that, "at a minimum, when a judge or jury is weighing a person’s life or death, they should have full knowledge and understanding of that person’s life history. Veterans with PTSD — and, in fact, all those with serious mental illness at the time of their crime — deserve a complete investigation and presentation of their mental state by the best experts in the field." Citing DPIC's report, the generals discuss the cases of Andrew Brannan, James Davis, and John Thuesen, who suffered from combat-related PTSD but were sentenced to death without adequate consideration of their conditions. They contrast the often untreated "deeply debilitating" long-term wounds of combat PTSD to the physical wounds for which veterans do receive treatment. "PTSD can be treated," they write, "but in one study only about half of the veterans who needed treatment received it." They conclude with a call to action. "We should begin by determining the exact scope of this problem: Who are the veterans on death row? How could their military experience have affected their commission of a crime? How well were their disabilities investigated and presented in court? And what should be done when the system fails them? Veterans facing the death penalty deserve this assistance." (Click image to enlarge.)Tweet
On November 10, on the eve of Veterans' Day, the Death Penalty Information Center released a new report, Battle Scars: Military Veterans and the Death Penalty. The report examines the plight of U.S. military veterans who have been sentenced to death, estimating that about 300 veterans are currently on death row. Many of these veterans suffer from Post-Traumatic Stress Disorder (PTSD) or other mental disabilities caused or exacerbated by their time in combat. Often when these veterans were on trial facing the death penalty, their military service and related illnesses were barely presented to the jury. The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with PTSD, who had been granted 100% disability by the Veterans Administration. His combat trauma was largely unexplored at trial, and the Georgia Pardons Board denied him clemency. DPIC's press release noted: "As the country prepares to honor its military veterans on November 11, it may be a sobering and surprising revelation that many veterans have been adjudged as 'the worst of the worst,' condemned to death, and executed by the government they once served." The report urges more attention be paid to veterans facing execution: "Early intervention, peer assistance from veterans, and involvement of veteran officials with prosecutors, defense attorneys, and judges could all be instrumental in steering a case away from the death penalty," the report states.
Robert Dunham, Executive Director of DPIC, commented about the report, “At a time in which the death penalty is being imposed less and less, it is disturbing that so many veterans who were mentally and emotionally scarred while serving their country are now facing execution. It is our hope that a better understanding of the extreme and long-lasting effects of trauma and the resulting disabilities many veterans have experienced will lead to a larger conversation about imposing capital punishment on trauma survivors and other people with severe mental illnesses.”
(R. Dieter, "Battle Scars: Military Veterans and the Death Penalty," DPIC, posted November 10, 2015). See graphics and read the Executive Summary, Full Report, and Press Release. See other DPIC reports and Mental Illness.Tweet
On November 8, 1965, 50 years ago, the United Kingdom abolished capital punishment. On that date, Parliament transmitted to Queen Elizabeth II for royal assent the Murder (Abolition of Death Penalty) Act of 1965. The Act, which ended capital punishment in England, Wales, and Scotland subject to Parliamentary review after 5 years, took effect on November 9, 1965. When Parliament confirmed the Act in December 1969, the abolition of capital punishment in the United Kingdom became permanent. The movement to end the death penalty in the U.K. was spurred by three controversial executions in the 1950s. In 1950, Timothy Evans was wrongfully executed for the murder of his wife and young child. His neighbor, John Christie, who testified against Evans, was later found guilty of six other murders and confessed to killing Evans' family. Evans was given a posthumous royal pardon in 1966. In 1953, Derek Bentley was executed for the murder of a police officer during a robbery, although the actual killer was a teenager who was ineligible for capital punishment and Bentley was at most an accomplice to the robbery. Bentley's conviction was posthumously overturned in 1998. Finally, in 1955, Ruth Ellis was executed for killing her abusive lover. Her execution drew widespread public outrage and more than 50,000 people signed petitions unsuccessfully seeking a reprieve for Ellis.
The death penalty for murder was abolished in Northern Ireland on 25 July 1973 under the Northern Ireland (Emergency Provisions) Act 1973. The U.K.'s future commitment to abolition of the death penalty is further secured by its ratification of the European Convention on Human Rights. In 1983, Protocol 6 to the European Convention banned the death penalty for all domestic offenses and, in 2002, Protocol 13 abolished the death penalty in all circumstances.
(L. Blom-Cooper, "Fifty years on, the debate over what replaces the death penalty continues," The Guardian, November 4, 2015; "The Longer View: Capital punishment," BBC, November 8, 2015.) See History of the Death Penalty and International.Tweet
Calling the punishment "simply wrong," United Nations Secretary-General Ban Ki-Moon has vowed to "never stop calling for an end to the death penalty." Speaking at the launch of a new book by the Office of the UN High Commissioner for Human Rights, "Moving Away from the Death Penalty: Arguments, Trends and Perspectives," the Secretary-General highlighted the worldwide decline of capital punishment, noting that "more and more countries and States are abolishing the death penalty." Data from the book confirms these trends: in 1975, about 97% of countries were carrying out executions, as compared to only 27% today. Ban Ki-Moon appeared alongside Kirk Bloodsworth, the first death-sentenced person in the U.S. to have been exonerated by DNA evidence. The Secretary-General said of Bloodsworth, "[Mr. Bloodsworth] represents the reason we are here today. He is totally innocent of any crime. But like too many other people, he suffered the unforgiveable injustice of a death sentence…I am conscious that he says he was not exonerated because the system worked but because of a series of miracles." Bloodsworth explained his reasons for supporting abolition by saying, "It’s very simple: if it can happen to me it can happen to anyone; in America or anywhere. What I’m saying is that an innocent person can be executed and that should never happen. If it can happen to me it can happen to anybody anywhere in the world."
Ban Ki-Moon also emphasized the “harsh reality” that the death penalty discriminates. "Study after study proves that if you are poor, minority or mentally disabled, you are at higher risk regardless of guilt or innocence,” he said. “When we safeguard the human rights of the most vulnerable, we promote more peaceful, just and stable conditions for all.”
("‘I will never stop calling for an end to the death penalty,’ Ban vows at launch of new UN publication," UN News Centre, November 5, 2015.) See Books and International.Tweet
Oklahoma County has executed 41 prisoners since 1976, the third highest in the country, and is among the 2% of American counties responsible for 56% of the men and women currently on the nation's death rows. A ThinkProgress report chronicles the decades-long pattern of misconduct committed under its long-time District Attorney "Cowboy Bob" Macy (pictured). Macy sent 54 people to death row during his 21 years as District Attorney, more than any other prosecutor in the U.S. in that period. “Macy would pretty much do whatever it took to win,” including making inflammatory arguments and routinely withholding exculpatory evidence, says David Autry, an Oklahoma County public defender from the Macy era. 23 of the Macy capital convictions relied heavily on the testimony of disgraced police chemist Joyce Gilchrist, whom an FBI investigation in 2001 concluded had offered testimony "that went beyond the acceptable limits of science.” An internal police investigation discovered that evidence in many of Gilchrist's major cases was missing, along with three years of her blood analysis files. In the case of Curtis McCarty, one of three death-row exonerees prosecuted under Macy, Gilchrist falsely testified that hairs found at the crime scene matched McCarty's and that his blood type matched the semen found on the victim's body. A later investigation revealed that Gilchrist had altered her notes to implicate McCarty and that the hairs she had tested were missing. McCarty was exonerated in 2007 after independent DNA testing excluded him as a suspect. Almost half of the 23 people who were sentenced to death in trials where Gilchrist testified were executed before their cases could be reviewed and ThinkProgress reports that as many as 38 of those Macy sent to death row have been executed.
Macy's heavy reliance on the death penalty, and the misconduct he oversaw, has come under renewed scrutiny as national attention focuses on the case of Richard Glossip, whom Macy prosecuted. Glossip was convicted solely on the testimony of Justin Sneed, who committed the murder and claimed Glossip hired him to do it. Glossip was scheduled to be executed on September 30, 2015, but his execution was stayed when prison officials revealed they had procured the wrong lethal injection drug. All executions in Oklahoma are now on hold, pending an investigation into the state's lethal injection procedure.
(E. Hellerstein, "Cowboy Bob, Black Magic, and the Courtroom of Death," ThinkProgress, October 29, 2015.) See Arbitrariness and Innocence.Tweet
Deadliest Prosecutors, Worst Defense Lawyers Linked to High Rates of Death Sentences in Heavy-Use Counties
Prisoners sentenced to death in the small number of U.S. counties that most aggressively pursue the death penalty often suffer the "double whammy" of getting "both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers," according to an article in Slate by Robert L. Smith. In reviewing the the unusally high numbers of death verdicts from 3 counties that are near the top of the nation in disproportionately producing death sentences over the last 5 years, Smith found not only high rates of seeking death but a pattern of inadequate capital defense representation. In Maricopa County, Arizona, the nation's second highest producer of death sentences since 2010, two capital trial lawyers had, between them, represented 10 clients who were sentenced to death. Serious concerns about the quality of representation were also present in the two counties with the nation's highest level of death sentences per capita since 2010, Duval County, Florida, and Caddo Parish, Louisiana. 75% of defendants sentenced to death in Caddo Parish since 2005 were represented at trial by lawyers who would be found unqualified to try capital cases under capital defense standards recently put in place in the state. One Caddo Parish lawyer, Daryl Gold, was trial counsel for nearly 20% of the people sent to death row in Louisiana from 2005 to 2014. He has been suspended from practicing law three times and received 14 private reprimands, and was permitted to continue representing poor defendants in capital cases even though he was barred from taking on private clients. In Duval County, a newly elected public defender fired respected senior capital litigators and installed as deputy chief and head of homicide defense a lawyer, Refik Eler, who has at least 8 former clients on death row - the most of any lawyer in Florida. Eler has already been found ineffective by the Florida Supreme Court in three capital cases for failing to investigate both guilt and penalty issues.
In Maricopa County, Nathaniel Carr - who has represented four men now on death row - wrote that a possibly intellectually disabled client "looks like a killer, not a retard." The trial court "admonished him for both lacking candor and filing 'offensive' and 'incomprehensible' motions" and the Arizona Supreme Court said his actions could be described as "willful misconduct." Another of Carr's clients sought Carr's removal from his case because Carr had met with him only briefly in 15 months and the defendant had "lost all trust and faith in my attorneys." Another Maricopa attorney, Herman Alcantar, has six former clients on death row and represented five pretrial capital defendants at once in 2009 - a caseload so heavy that as one case approached its trial date, he had not met with his client in more than a year and hadn't filed a single substantive motion.
(R. Smith, "The Worst Lawyers," Slate, November 4, 2015.) See Representation and Arbitrariness. Read Stephen B. Bright's landmark law review article, "Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer."Tweet
Ernest Johnson (pictured) is scheduled to be executed in Missouri on November 3, despite strong evidence that he is intellectually disabled and therefore ineligible for execution. Johnson has shown signs of intellectual disability throughout his life: he walked and talked much later than his siblings, he was twice held back a grade in school, academic test scores placed him in the bottom 1-2% in math and reading, and his siblings say he struggled with basic skills like using a knife and fork. His IQ scores have consistently fallen around or below 70, a common IQ marker for individuals with intellectual disability. Despite all this evidence, Johnson faces execution because, in the words of former U.S. Attorney John N. Gallo, "the facts of Johnson’s disability were clouded in court by the prosecutor’s inflammatory rhetoric." A prosecutor argued that Johnson was not “a weak, little skinny, mentally retarded kid” and told his jury, "To decide it's more likely true than not that this guy is mentally retarded is an insult, an insult to these victims." The prosecutor also accused Johnson of intentionally lowering his IQ scores, based upon the opinion of a technician who lacked any training in administering IQ tests or making clinical observations about them. In an op-ed for the St. Louis Post-Dispatch, Gallo urged Missouri Governor Jay Nixon to commute Johnson's sentence to life without parole, saying, "to allow this execution to go forward would be to sanction a gross injustice." [UPDATE: The U.S. Supreme Court stayed Johnson's execution, but not as a result of his intellectual disability. The Court ruled that Johnson was entitled to pursue an appeal to determine whether Missouri's execution protocols are unconstitutionally cruel and unusual as applied to a person with Johnson's particular medical condition. Johnson has a brain tumor, lesions, and scarring that his experts say create a substantial risk of seizures and extreme pain if executed by lethal injection with pentobarbital.]
A number of Missouri's six executions so far this year have also raised serious legal issues. On March 17, the state executed Cecil Clayton, a man with an IQ of 71 who suffered from dementia and was missing part of his brain as a result of a sawmill accident that occurred before his crime. On April 14, it executed Andre Cole amid concerns about racial bias and his mental competency. Cole, a black man, was sentenced to death by an all-white St. Louis County jury. Richard Strong was executed on June 9 over the protests of four Supreme Court justices, who would have stayed the execution in order to hear a challenge to Missouri's secretive lethal injection process. Strong was also severely mentally ill, but his trial counsel failed to present evidence of his mental illness to the jury.
(J. Gallo, "Ernest Johnson cannot be legally executed," St. Louis Post-Dispatch, November 3, 2015; B. Stull, "If Nothing Happens Before Tomorrow Night, Missouri Will Execute an Intellectually Disabled Man," Huffington Post, November 2, 2015.) See Intellectual Disability and New Voices.Tweet
The U.S. Supreme Court heard oral argument in Foster v. Chatman on November 2. Timothy Foster, an intellectually limited black teenager charged with killing an elderly white woman, was convicted and sentenced to death in 1987 by an all-white jury after Georgia prosecutors struck every black member of the jury pool. Foster argued that prosecutors impermissibly exercised their strikes on the basis of race, in violation of the Court's 1986 decision in Batson v. Kentucky, to keep African Americans off his jury. Press reports described the Court as having "signaled support" for Foster during the course of the argument, with at least six justices indicating that black jurors had been "improperly singled out and kept off the jury." Justice Elena Kagan called the case as clear a violation of the Court's prohibition against racially discriminatory jury selection "as a court is ever going to see." The prosecution's notes of jury selection, obtained through an open records request nearly 20 years after Foster's trial, showed that prosecutors had highlighted in green the names of every black juror, included all 5 black jurors on the top of a list of 6 "definite no's," and ranked black jurors against one another "in case it comes down to having to pick one of the black jurors." In an op-ed in the New York Times, former deputy U.S. Attorney General Larry D. Thompson said prosecutors "routinely ignore" Batson and exclude black jurors for any number of ostensibly "race neutral" reasons. This is problematic, he says, "because interracial juries make fewer factual errors, deliberate longer and consider a wider variety of perspectives than all-white juries." Studies in nine southern death penalty states have documented "rampant" race discimination in jury selection, Thompson writes. However, "Mr. Foster’s case offers a rare instance of extraordinary and well-documented misconduct." Thompson concludes that "A judicial system that allows for obviously discriminatory jury selection is intolerable. If the court cannot establish discrimination in this case, then the lofty language of Batson rings hollow."
(A. de Vogue, "Jury and racial bias debate comes to the Supreme Court," CNN, November 2, 2015; M. Sherman, "Supreme Court troubled by DA's rejection of black jurors," Associated Press, November 2, 2015; L. Thompson, "How America Tolerates Racism in Jury Selection," The New York Times, October 30, 2015.) See Race and U.S. Supreme Court. For additional resources on the case, see Foster v. Chatman.Tweet
The U.S. Department of Justice released its annual FBI Uniform Crime Report for 2014, reporting no change in the national murder rate since 2013. In the Northeast, the region with the fewest executions, the murder rate declined 5.7%, from 3.5 to 3.3 per 100,000 population. The murder rate was 1.7 times higher in the South, which carries out the most executions of any region. That region saw a 3.4% increase in the homicide rate, and its 5.5 murders per 100,00 population remained the highest rate of any region. Murder rates in the West and Midwest declined by 3.8% and 5.4%, respectively. A DPIC analysis of weighted murder rates found that death penalty jurisdictions continue to have a higher murder rate than non-death penalty jurisdictions (including Washington, D.C.): 4.7 per 100,000 compared to 3.8 per 100,000. Ten of the eleven states with the highest murder rates have the death penalty, while six of the eight lowest do not.
Rates are number of murders per 100,000 persons.Tweet
Capital punishment is dominating the discussion in the runoff election between James E. Stewart, Sr. and Dhu Thompson to succeed acting Caddo Parish, Louisiana District Attorney Dale Cox. Cox's controversial statements about the death penalty - including that the state needs to "kill more people" - have focused national attention on the parish, which ranks among the two percent of U.S. counties responsible for 56 percent of the inmates on death row nationwide. On October 27, defense attorneys in the death penalty retrial of Eric Mickelson requested Cox's removal from the case after they overheard him saying he wanted to "cut their (expletive) throats." The attention surrounding Cox, as well as the 2014 exoneration of Glenn Ford and charges that Cox may have put an innocent man, Rodricus Crawford, on death row has forced Stewart and Thompson to focus on their proposed capital punishment policies. Stewart said he would place an emphasis on ethics and professionalism in the DA's office: "The evaluation and screening of cases with an ethical and professional standard alleviates the Glenn Ford type of cases. You don’t get so caught up in the case that you miss certain things along the way, and that can happen if people are not looking at the case correctly." He said he'd like to get rid of peremptory challenges, in which prosecutors can strike jurors without cause. A recent study found that Caddo prosecutors had systematically employed peremptory challenges in a racially biased manner. Thompson said he believes the office has approached the use of the death penalty in a thoughtful way, adding, "What we do is seek justice based on the facts and merits of the case." He also said he does not believe that Glenn Ford was innocent and that the 30 years Ford spent in prison was appropriate.
In 2014, after securing a death sentence against Rodricus Crawford for allegedly suffocating his infant son, Cox wrote a memo saying that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies." The Innocence Network has filed a brief in the case saying that the medical evidence shows the boy was not murdered, but died from pneumonia. More than 100 Louisiana religious leaders also filed a brief on Crawford's behalf saying that Cox had made improper biblical argument in the case. Stewart said he would conduct his own evaluation of the Crawford case to see if the verdict was defensible. Thompson said he was confident the state courts would fairly decide Crawford's case. (Pictured: Caddo Parish Courthouse, 2010.)
(A. Burris, "In-depth: Caddo DA candidates," The Shreveport Times, October 27, 2015; A. Burris, "Exclusive: Cox accused of threatening defense counsel in death row case," The Shreveport Times, October 28, 2015.) See Arbitrariness and Innocence.Tweet
Pennsylvania Death-Row Prisoners Disproportionately Represented at Trial by Attorneys with Disciplinary Problems
15.1% of capital defendants sentenced to death in Pennsylvania since 1980 were represented at trial by a lawyer who has been disciplined for professional misconduct, and that has risen to 18.2% in the past decade, according to an investigative report by The Reading Eagle. These rates of discipline were between 5 and 6 times higher than the 3% disciplinary rate for Pennsylvania lawyers as a whole over the past 30 years. The disciplinary issues have disproportionately affected minority defendants: 83% of the death-row prisoners who had been represented by lawyers with disciplinary violations were black or Latino. The Eagle's review of more than 300 capital cases also revealed that two thirds of the disciplined lawyers had been found to have provided ineffective representation in at least one case in which their clients had been sentenced to death. Ineffectiveness accounts for nearly 60% of capital case reversals in Pennsylvania and is the most common reason a conviction or death sentence is overturned. In 2004, Pennsylvania created Rule 801, which established minimum experience requirements for attorneys in capital cases. However, the rule contains no quality controls, does not mandate any performance evaluations, and does not set any baseline for attorney compensation. Marc Bookman, director of the Atlantic Center for Capital Representation, said low pay for appointed capital attorneys is part of the problem. "Only the worst lawyers would consider taking these cases on a regular basis because you can't make a living doing it," he said. Pennsylvania is not alone in its high rates of misconduct for lawyers appointed to capital trials. In Texas, one in four death row inmates had been represented by attorneys who were disciplined for misconduct, and in Washington, the same was true of one in five.
In 58% of the Pennsylvania cases involving lawyers with disciplinary violations, the lawyer had already been disciplined for misconduct before receiving his appointment. In 1/4 of the cases in which death-sentenced defendants were represented by a disciplined lawyer, that lawyer had a criminal record at the time he was assigned to the case. Almost two thirds of the disciplined attorneys received the highest levels of disciplinary action: suspension or disbarment. 45% had been disciplined multiple times.
(N. Brambila, "Disorder in the court: Troubled attorneys often take on capital cases," The Reading Eagle, October 25, 2015.) See Representation and Race.Tweet