Eight death-row prisoners whom Arkansas has scheduled to be executed in the next four months have asked a judge to issue a preliminary injunction that would put their executions on hold. They argue that the state's execution procedures are unconstitutional for multiple reasons and that Arkansas' secrecy law violates a previous settlement agreement between death row inmates and the state. Arkansas, which has not carried out an execution since November 2005, has scheduled eight executions for four dates (two executions on each date) between October of this year and January 2016, even though legal challenges to the constitutionality of the state's execution procedures were pending in state court and were scheduled to proceed to trial. The state recently passed a bill that allows the Department of Correction to keep the source of execution drugs secret. Jeff Rosenzweig, an attorney for the death row inmates, said the secrecy law violates an agreement in which the state agreed to tell inmates the source of lethal injection drugs in exchange for the inmates dropping part of a prior lawsuit challenging the state's execution protocol. The inmates argue that, without knowing the manufacturer of the drugs, they cannot determine whether the execution may constitute cruel and unusual punishment. They are seeking a preliminary injunction blocking executions from proceeding until the case is decided. A state trial court has moved the hearing date for the inmates' lawsuit from October 23 to October 7. In June 2012, the Arkansas Supreme Court struck down the state's prior execution law as violating the state constitution.
(C. Lauer, "Arkansas Death Row Inmates Ask for Preliminary Injunction," Associated Press, October 1, 2015.) See Lethal Injection.Tweet
The U.S. Supreme Court has agreed to hear Williams v. Pennsylvania, a case challenging former Pennsylvania Supreme Court Chief Justice Ronald Castille's participation in an appeal of a case that had been tried in Philadelphia while Castille was the city's district attorney. Terrance Williams (pictured) was convicted and sentenced to death in Philadelphia in 1984 for the murder of a man prosecutors had described to the jury as "a kind man [who had] offered [Williams] a ride home." Williams was 18 at the time of the murder. His death sentence was reversed days before his scheduled execution in 2012 because prosecutors under Castille's tenure had withheld information that the victim, a church deacon, had sexually abused teenagers he had met through his church and that the trial prosecutor knew that the victim had sexually abused Williams. In 2014, the Pennsylvania Supreme Court reinstated Williams' death sentence. Williams' lawyers asked Castille to recuse himself from the case, saying he had "personally approved the decision to pursue capital punishment" against Williams, continued to head the office when it defended the death verdict on appeal, and, in his electoral campaign for the Pennsylvania Supreme Court, had touted "the number of defendants he had 'sent' to death row, including [Williams]." Castille denied the motion for recusal and authored a concurring opinion that criticized Williams' lawyers and the judge who had ruled in Williams' favor.
The U.S. Supreme Court will take up the question of whether Castille's failure to recuse himself violated Williams' rights, and whether it matters that Castille did not cast the deciding vote. Marc Bookman, director of the Atlantic Center for Capital Representation, said Castille's participation created a conflict of interest: "It is his former office that is being accused of hiding evidence. He has a stake in protecting the office that he led at the time that all this happened." Governor Tom Wolf granted Williams a reprieve of his death sentence and announced a moratorium on executions in Pennsylvania on February 13.
(M. Sherman, "Justices to Review Bias Claim Against Top Pennsylvania Judge," Associated Press, October 1, 2015; J. Roebuck, "U.S. Supreme Court agrees to scrutinize Castille's role in death-row inmate's case," Philadelphia Inquirer, October 1, 2015; Williams v. Pennsylvania, Petition for Writ of Certiorari, June 12, 2015.) See U.S. Supreme Court.Tweet
On October 2, Missouri Governor Jay Nixon commuted the death sentence of Kimber Edwards to life without parole. Edwards had faced execution on October 6 for the alleged murder-for-hire killing of his ex-wife. Prosecutors said Edwards had hired Orthell Wilson to kill his ex-wife to prevent her from testifying in a child-support hearing. Wilson pled guilty and was sentenced to life without parole. He subsequently recanted his story, saying that he had acted alone and had lied about being hired by Edwards. Edwards has professed his innocence, despite confessing to police. His lawyers argue that he has a form of autism that makes him vulnerable to falsely confessing in the face of coercive interrogation tactics. Edwards' case also sparked charges of racial bias. He is one of 7 black men on death row from St. Louis County - the home of Ferguson - and was sentenced to death by an all-white jury after prosecutors used their discretionary strikes to remove three black prospective jurors. Missouri courts have found that St. Louis County prosecutors have unlawfully excluded black jurors because of race at least five times since 2002, and several other black death row prisoners in Missouri - including Andre Cole, Herbert Smulls, and Leon Taylor - were executed after having been sentenced to death by all-white juries. In addition, a recent study reported stark racial and geographic disparities in Missouri's application of the death penalty, and St. Louis County has executed more defendants than any other county in the state.
In a statement accompanying the commutation, Governor Nixon said: “After a thorough review of the facts surrounding the murder of Kimberly Cantrell, I am convinced the evidence supports the jury’s decision to convict Kimber Edwards of first-degree murder. At the same time, however, I am using my authority under the Missouri Constitution to commute Edwards’ sentence to life without the possibility of parole. This is a step not taken lightly, and only after significant consideration of the totality of the circumstances. With this decision, Kimber Edwards will remain in prison for the remainder of his life for this murder.”
(Jeremy Kohler, "Nixon commutes death sentence for Kimber Edwards," St. Louis Post-Dispatch, October 2, 2015; Editorial, "Too many black men sent to death by white juries," St. Louis Post-Dispatch, April 9, 2015.) See Clemency, Innocence, and Race.Tweet
On October 1, Virginia executed Alfredo Prieto (pictured) before the U.S. Supreme Court had decided whether to grant a stay on his challenge to Virginia's use of an execution drug obtained from Texas Department of Criminal Justice. Robert Lee, Prieto's attorney, said, "The Justices of the Supreme Court of the United States were considering Mr. Prieto’s request for a stay of execution but the Virginia Department of Corrections went ahead with the execution without waiting for a decision from the Justices." Earlier in the day, U.S. District Court Judge Henry Hudson held a hearing on a challenge to Virginia's lethal injection procedure. Virginia used compounded pentobarbital obtained from Texas, without any inquiry into the manufacture, purity, or storage of the drug. Prieto's lawyers raised questions about the safety and efficacy of the drug. Hudson denied the appeal and lifted a preliminary injunction that had put the execution on hold. The U.S. Court of Appeals for the 4th Circuit denied Prieto's appeal of this issue. Prieto's lawyers then filed a petition for review with the U.S. Supreme Court, but Virginia carried out the execution before the Court could issue a decision. The last time a state executed an inmate with appeals still pending was January 29, 2014, when Missouri executed Herbert Smulls.
On September 29, the Inter-American Commission on Human Rights also had sought to enjoin the execution, finding significant evidence that Prieto was intellectually disabled and had been denied a meaningful judicial determination of his eligibility for the death penalty. The human rights tribunal issued "precautionary measures" against the execution - the international law equivalent of a preliminary injunction - and directed the United States to report within 5 days of what steps it taken to halt Prieto's execution.
(C. Geidner, "Virginia Executes Serial Killer Before Supreme Court Rules On Final Request," BuzzFeed, October 1, 2015; Inter-American Commission on Human Rights, Resolution 32/2015, Precautionary Measure 489-15, September 29, 2015.) See U.S. Supreme Court, Lethal Injection, and International.Tweet
An unusually high number of executions are scheduled for late September and early October - five states intend to carry out six executions in nine days. Pieces in the Los Angeles Times and the Washington Post describe the larger issues raised by the cases in this "burst of lethal activity." In the Los Angeles Times, Scott Martelle examined the three executions scheduled for consecutive days in Georgia, Oklahoma, and Virginia, concluding, "So here we have three pending executions: One of a woman who received a harsher penalty than the co-conspirator who committed the murder; one of a man who very possibly is innocent; and one of a man whose intellectual disability should make him ineligible for the death penalty." Mark Berman, of the Washington Post, noted the overall rarity of executions and the small number of states that carry them out. He says "most states have ... not been active participants in the country's capital punishment system" and "executions remain clustered in a small number of states, a dwindling number of locations accounting for an overwhelming majority of lethal injections." Berman notes that the number of executions, the states executing inmates and the number of death sentences have all fallen significantly since the 1990s and the upcoming executions share one common characteristic: "The states planning the executions this week and next — Georgia, Oklahoma, Virginia, Texas and Missouri — are among the country’s most active death-penalty states since the death penalty was reinstated by the U.S. Supreme Court in 1976."
(S. Martelle, "Three days, three planned executions, three wrong calls," Los Angeles Times, September 29, 2015; M. Berman, "The U.S. has six executions scheduled over the next nine days," The Washington Post, September 29, 2015.) See Arbitrariness, Innocence, and Intellectual Disability.Tweet
Virginia may execute Alfredo Prieto on October 1 despite concerns by disability advocates that he may be intellectually disabled. Governor Terry McAuliffe (pictured) announced on September 28 that he would not grant Prieto a reprieve. Gov. McAuliffe issued a statement saying "It is the Governor’s responsibility to ensure that the laws of the Commonwealth are properly carried out unless circumstances merit a stay or commutation of the sentence. After extensive review and deliberation, I have found no such circumstances, and have thus decided that this execution will move forward." Prieto's attorneys say he is intellectually disabled and therefore ineligible for execution and that an adverse Virginia state court determination of that issue employed a scientifically invalid strict IQ cutoff score. Later, in 2014, the U.S. Supreme Court ruled that the use of strict IQ cutoff for ruling out intellectual disability without considering other factors violated the Eighth Amendment. The Arc of Virginia, an advocacy group for people with intellectual and developmental disabilities, said, "We believe that allowing Mr. Prieto’s execution to go forward on the evidence as it stands is unjustified scientifically and would endorse a misunderstanding of intellectual disabilities that was refuted long ago."
Virginia courts ruled that Prieto waited too long after the Supreme Court's decision to raise the issue of intellectual disability. However, Prieto also faces the death penalty in California, and his lawyers argued that he should be granted a reprieve so he can receive a constitutionally appropriate intellectual disability determination in appellate proceedings in that state. "A determination that Mr. Prieto is a person with intellectual disability made in a California proceeding would supply the determination Virginia courts are powerless to make; it also would constitutionally prohibit execution," Prieto's lawyers said.
(T. Strong, "Group asks McAuliffe to put off Prieto's execution," Richmond Times-Dispatch, September 22, 2015; "Governor McAuliffe Statement on the Pending Execution of Alfredo Prieto," Bristol Herald Courier, September 28, 2015.) See Intellectual Disability and U.S. Supreme Court.Tweet
Defense lawyers have filed a motion in the case of Richard Glossip (pictured) alleging that two witnesses who have come forward with evidence of Glossip's innocence have been intimidated by prosecutors. Glossip was sentenced to death for the murder of Barry Van Treese, based upon the testimony of the actual killer, Justin Sneed, who was spared the death penalty in exhange for testifying that Glossip had offered him thousands of dollars to kill Van Treese. On September 23, Glossip's attorneys filed allegations that Michael Scott and Joseph Tapley had been arrested and interrogated by prosecutors in retaliation for providing statements that Sneed had acted alone. Prior to Glossip's scheduled September 16 execution, Scott had provided an affidavit stating that, "Among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river." On September 16, the Oklahoma Court of Criminal Appeals issued a two-week stay of execution to allow consideration of new evidence in the case, including Scott's allegations. Later, a second former inmate, Joseph Tapley, came forward to say he was "sure that Justin Sneed acted alone." Tapley, who had been Sneed's cellmate, said Sneed offered "very detailed accounts" of the murder, but "never gave me any indication that someone else was involved. He never mentioned the name of Richard Glossip to me." Tapley also said Sneed, "was very concerned about getting the death penalty. He was very scared of it. The only thing that mattered to him was signing for a life sentence." The defense filing alleges that, after the stay was granted, Scott was arrested for a parole violation and questioned by Oklahoma County District Attorney David Prater, whose office prosecuted Glossip. It says that "Mr. Prater specifically told Mr. Scott that he ordered this action so that Scott would be forced to talk with Prater and his investigator." An arrest warrant was also issued for Tapley after he told Prater he did not wish to speak with him. Prater sharply denied the allegations of intimidation, calling them "lies."
Sneed received a life sentence in exchange for his testimony against Glossip. Unless another stay is issued, Glossip is scheduled to be executed on September 30.
(L. Segura, "The Case Against Richard Glossip Is Crumbling, But He Is Still Scheduled to Die in a Week," The Intercept, September 23, 2015; K. Miller, "Attorneys for Oklahoma inmate allege witness intimidation," Associated Press, September 23, 2015.) See New Voices and Innocence.Tweet
Former Georgia Supreme Court Chief Justice Norman Fletcher and former State Corrections Deputy Director Vanessa O’Donnell have joined the effort to spare Kelly Gissendaner, who is scheduled to be executed in Georgia on September 29 for recruiting Gregory Owen, with whom she was romantically involved, to murder her husband. Owen made a deal with prosecutors for a life sentence and will be eligible for parole in 8 years. Justice Fletcher wrote a letter to the Georgia Board of Pardons and Paroles, who hold the power to grant clemency in Georgia, saying that - given Owen's sentence - Gissendaner's death sentence is disproportionate to her role in the murder. "The State of Georgia has not executed a person who did not commit the actual killing since the death penalty was reinstated in 1976," he wrote. "There is a reason for this. Kelly Gissendaner should not be the first." Fletcher said the process the court used to conduct proportionality review at the time of Gissendaner's appeal "was deeply flawed" and that he had been wrong to join with other justices in ruling that Gissendaner's sentence was proportionate to the sentences imposed for other similar murders. O'Donnell, who was the warden from 2001 to 2004 at the state prison in which Gissendaner was incarcerated, urged the Board to grant Gissendaner clemency because of her "exceptional prison adjustment, her role in the crime as compared with her co-defendant who is serving a life sentence, her remorse, and the pleas of the Gissendaner children." O'Donnell told the Board that Gissendaner had "reached out to other inmates at their lowest ebb of despair and helped them to recognize their worth and to see a path out of prison" and, if spared, "can provide hope to the most desperate female offender in a manner no one else could possibly understand."
Dozens of prison spiritual advisors, inmates, and prison staff, as well as two of her children, have requested clemency for Gissendaner.
("Officials seek clemency for Ga. mother on death row," USA Today, September 27, 2015; 11 Alive Staff, "Former high-ranking state officials join growing chorus asking for Gissendaner clemency," WXIA-TV, September 26, 2015.) See New Voices and Clemency.Tweet
A group of former Georgia prisoners is calling for clemency for Kelly Gissendaner, who is scheduled to be executed on September 29. The women say Gissendaner gave them hope and helped them turn their lives around. Nikki Roberts said she spoke to Gissendaner through a heating vent after Roberts had been placed in "lockdown" for trying to slit her wrists. Gissendaner told her, "Don't wish death on yourself. You sound like you've got some sense." Gissendaner encouraged Roberts to take taching courses and study theology. Roberts joined a choir and became a prayer leader. She was paroled last year and now teaches adult literacy. "Killing Kelly is essentially killing hope. Kelly is the poster child for redemption," Roberts said. Another woman, Nicole Legere, said Gissendaner helped her and many others. "I saw the change in (other inmates) who talked to her. There needs to be people like her, someone to be a mentor. She’s a lot of hope. And there’s not much hope in there." Gissendaner was convicted for her role in facilitating the murder of her husband, based upon the testimony of the actual killer, who received a deal in which he will become eligible for parole. If Gissendaner is executed, she will be the first woman executed in Georgia since 1945 and the only person who did not directly commit the killing to be executed in Georgia since the state reestablished the death penalty in the 1970s.Tweet
Sun Pharma, which is based in India, has publicly dissociated itself from the use of its drugs in upcoming Arkansas executions. The company said it prohibits the sale of its products to entities that might use them for killing. Sun Pharma was notified of the possible misuse of its products by the Associated Press, which had obtained redacted photographs of the drugs Arkansas planned to use in eight scheduled executions. A recently passed secrecy law allows the state to withhold the source of its execution drugs from public scrutiny. (Virginia's Supreme Court also recently shielded some information about executions from the public.) Other companies whose drugs might be used by Arkansas have also objected. Hikma Pharmaceuticals said it was investigating whether Arkansas had obtained midazolam from one of its subsidiaries, and Hospira, which was identified as a possible source of the potassium chloride that Arkansas plans to use, was one of the first companies to bar its drugs from executions.
The AP obtained redacted photographs and other information about Arkansas's drugs through a Freedom of Information Act request. The AP then contacted the drug companies based on whether their labels appeared to match the photos. Arkansas has not carried out an execution since 2005.
(Associated Press, "Arkansas: Objections Raised Over Use of Drugs in Executions," The New York Times, September 22, 2015). See Lethal Injection and Recent Legislation.Tweet
The U.S. Court of Appeals for the Fifth Circuit will hear arguments on September 23 regarding Scott Panetti's competency to be executed. Panetti is a severely mentally ill man who represented himself at his trial wearing a cowboy costume, and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ. As the court prepares to hear Panetti's case, opinion pieces in two Texas newspapers used it to illustrate larger problems with the death penalty and mental illness. In an op-ed in The Dallas Morning News, conservative commentator Richard Viguerie said Panetti's execution would not be "a proportionate response to murder," but "would only undermine the public’s faith in a fair and moral justice system." He wrote that people with severe mental illness, like juveniles and people with intellectual disabilities, should not be executed because they have diminished capacities to understand the consequences of their actions. "The rationales for the death penalty — retribution and deterrence — simply do not apply to a severely mentally ill individual like Panetti, who believes that a listening device has been implanted in one of his teeth." Executing Panetti, Viguerie said, would be "a moral failure for conservatives." A Houston Chronicle editorial discussed Panetti's case and the case of another mentally ill capital defendant, James Calvert. A Texas court terminated Calvert's self-representation after, in the words of the editorial, Calvert "took to defending himself with a farcical style that likely did more to hurt than help his case." Just before the court terminated Calvert's self-representation, a court deputy administered an electric shock to Calvert, causing him to scream for several seconds. The editorial said that "[t]he ultimate punishment - death - merits our highest standards of care" and that "judges must carefully balance the Sixth Amendment's right to represent oneself with the guarantee of competent representation." Calling for the end of the death penalty, the editorial board wrote, "Cases like Calvert and Panetti's show how something as serious as life and death can easily be turned into a farce."
In December 2014, Viguerie and more than a dozen other prominent national conservatives wrote a letter to then Texas Governor Rick Perry asking that he commute Panetti's sentence. The letter said: "As conservatives, we must be on guard that such an extraordinary government sanction not be used against a person who is mentally incapable of rational thought. It would be immoral for the government to take this man’s life."
(R. Viguerie, "Richard A. Viguerie: Executing Scott Panetti would be a moral failure for conservatives," The Dallas Morning News, September 16, 2015; Editorial, "Editorial: End executions," Houston Chronicle, September 16, 2015.) See Mental Illness and Editorials.Tweet
A shipment of sodium thiopental, an anesthetic once widely used in executions, was recently stopped in India before it could reach Nebraska. The Indian distributor sold more than $50,000 worth of sodium thiopental to the state in May, but the shipment was stopped before leaving the country because of "improper or missing paperwork." FedEx said it halted the shipment because it did not have Food And Drug Administration clearance: "As with any international importation of a drug, data about that shipment is transmitted to federal agencies in advance, including U.S. Customs and the Food and Drug Administration. If the shipment is authorized, we will deliver it to the recipient; if it is not, we will return it to the foreign shipper." Nebraska purchased the drugs despite the FDA's warning that importation of sodium thiopental for executions violates federal law. The FDA has consistently said that it will not allow execution drugs into the U.S. because the producers are not FDA-credited and the drugs are not approved for that purpose.
Nebraska spent $54,400 to purchase enough drugs for 300 executions from the overseas supplier. After the shipment was halted, a state spokesperson confirmed that it does not have a usable supply of lethal injection drugs. Ten people are on death row in Nebraska, though the legality of their death sentences is being challenged based upon the legislature's repeal of the state's death penalty in May.
(C. McDaniel and T. Nashrulla, "$25,000 Shipment Of Illegal Execution Drugs To Nebraska Gets Held Back In India," BuzzFeed, September 17, 2015). See Lethal Injection and Recent Legislation.Tweet
So far in 2015, no one has been sentenced to death in Texas. The death row population has dropped to 257, down from 460 at its peak in 1999. In that year, Texas sentenced 48 people to death, the most in any year since the death penalty was reinstated. Among the reasons for the decline in death sentences has been the adoption of the alternative sentence of life without parole (adopted in 2005), and a change in the political climate that had led politicians to compete in trying to appear "tough on crime." The Austin American-Statesman recently examined the cases of the 48 defendants sentenced to death in 1999. Harris County (Houston) handed down more of the sentences (11) than any other county, even though the number of murders there had been declining. Of those sentenced to death in 1999, half have been executed. One, Michael Toney, was exonerated in 2009. Two died of natural causes. Six had their sentences reduced when the Supreme Court banned the execution of juveniles in 2005 - all six were 17 at the time of their crimes. The rest remain on death row.
Kathryn Kase, executive director of the Texas Defender Service, said county-level decisions to seek the death penalty are often determined by budgetary concerns: "[W]hat it has always boiled down to is which counties have the money to put people on death row and keep them there....Who is going to be executed and who is going to be left alive can be like a lightning strike."Tweet
In New Book, Media Interviews, Justice Breyer Addresses International Opinion, Arbitrariness of Death Penalty
In his new book, The Court and the World: American Law and the New Global Realities, and in media interviews accompanying its release, Supreme Court Justice Stephen Breyer discusses the relationship between American laws and those of other countries and his dissent in Glossip v. Gross, which questioned the constitutionality of the death penalty. In an interview with The National Law Journal, Breyer summarized the core reasons underlying his Glossip dissent: "You know, sometimes people make mistakes, [executing] the wrong person. It is arbitrary. There is lots of evidence on that. Justice Potter Stewart said it was like being hit by lightning, whether the person is actually executed. If carried out, a death sentence, on average takes place now 18 years after it is imposed. The number of people who are executed has shrunk dramatically. They are centered in a very small number of counties in the United States. Bottom line is, let's go into the issue. It is time to go into it again." In his book, Breyer argues that the laws and practices of foreign countries are relevant to and might be particularly informative on questions regarding the Eighth Amendment. He notes that international opinion has influenced decisions to end the death penalty for juveniles and for crimes that do not result in death. His Glossip opinion also mentioned international practices - that only 22 countries carried out executions in 2013 and that the U.S. was one of only eight that executed more than 10 people - among the reasons American capital punishment may be an unconstitutionally "cruel and unusual punishment." That phrase, he says in his book, is itself of foreign origin. "It uses the word 'unusual,'" Breyer says, "and the founders didn't say unusual in what context." Foreign law and practices, he argues, should form part of that context.
(R. Teague Beckwith, "Supreme Court Justice Argues World Opinion Matters on the Death Penalty," TIME, September 14, 2015; A. Liptak, "Justice Breyer Sees Value in a Global View of Law," The New York Times, September 12, 2015; T. Mauro, "Q&A: Justice Breyer's Interview With The NLJ," The National Law Journal, September 12, 2015.) See U.S. Supreme Court, International, and Books.Tweet