Nebraska Attorney General Jon Bruning said executions in the state are unlikely to resume for at least another year because of the scarcity of lethal injection drugs. "Death row is sort of in limbo today," he said, adding that efforts to find alternative drugs have been diverted due to other state concerns. Nebraska's last execution was in 1997, by electrocution. The state's execution protocol calls for use of sodium thiopental, which is no longer being manufactured for the U.S. Earlier, the state had obtained sodium thiopental from a distributor in India, but the drug expired this year. The Department of Corrections would have to rewrite its protocol to allow for different drugs. State Sen. Ernie Chambers said he would work to prevent such changes: “I would fight tooth and nail... against what Bruning is talking about.” Bruning, who is leaving office in two months, said it will be up to the new governor and attorney general to decide “if and when” they want to address the state’s death penalty.
In a recent op-ed in the National Law Journal, historian John Bessler described the ambivalence among American founders toward the death penalty. He noted, "Although early U.S. laws authorized executions, the founders greatly admired a now little-known Italian writer, Cesare Beccaria, who fervently opposed capital punishment. They also were fascinated by the penitentiary system's potential to eliminate cruel punishments." Thomas Jefferson wrote, "Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death." James Madison, the father of the Constitution, was one of several founding fathers who sought to reduce the number of executions, saying, "I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it." Bessler concluded, "[T]he Founding Fathers were deeply ambivalent about capital punishment. Indeed, they embraced the principle of Montesquieu and Beccaria that any punishment that goes beyond what is 'absolutely necessary' is 'tyrannical.' In an era of maximum-security prisons and life-without-parole sentences, the death penalty can no longer be considered necessary."
A group of 15 former state and federal judges, including a former Chief Justice of the Missouri Supreme Court, has filed an amicus brief with the U.S. Court of Appeals for the Eighth Circuit in support of a stay of execution for Mark Christeson in Missouri. Christeson is scheduled to be executed on October 29, but the judges said he has not received "any meaningful federal review of his death sentence." In their brief, organized by the Constitution Project, the judges stated: "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court." The supportive appeal was signed by judges from across the country, including Nathaniel Jones, formerly of the U.S. Court of Appeals for the Sixth Circuit, Karla Gray, former Chief Justice of the Montana Supreme Court, Gerald Kogan, former Chief Justice of the Florida Supreme Court, Marsha K. Ternus, former Chief Justice of the Iowa Supreme Court, and Michael A. Wolff, former Chief Justice of the Missouri Supreme Court.
Pope Francis called for an end to capital punishment in an address on October 23 to the International Association on Penal Law. "It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor," the Catholic leader said. He cited the Catechism of the Catholic Church, which says that the death penalty can be used only if it is the "only possible way of effectively defending human lives against the unjust aggressor," and that modern alternatives for protecting society mean that "cases in which the execution of the offender is an absolute necessity are very rare, if not practically nonexistent." Pope Francis said, "All Christians and people of good will are thus called today to struggle not only for abolition of the death penalty, whether it be legal or illegal and in all its forms, but also to improve prison conditions, out of respect for the human dignity of persons deprived of their liberty." In discussing a variety of criminal justice issues, he critiqued the tendency to focus solely on punishment, rather than addressing broader social issues.
In a Gallup poll released on October 23, support for the death penalty was 63%, remaining within the margin of error of a 40-year low of 60% last year. These results represent a dramatic shift in Americans' views on the death penalty since the 1990's, when support for the death penalty peaked at 80%. Opposition to the death penalty has grown significantly among Democrats, more than doubling over the last 20 years, from 22% in 1994 to 46% today. When offered the alternative punishment of life without parole, respondents are about evenly split, with 50% favoring the death penalty and 45% favoring life without parole. Gallup highlighted the dramatic drop in support since the 1990's, saying, "These trends toward diminished support seem to be reflected in state death penalty laws, as six U.S. states have abolished the death penalty since 2007, and no new states have adopted it." See below for a statement on the poll from DPIC's Executive Director, Richard Dieter.
Two recent international gatherings emphasized concerns about the death penalty in the U.S. and around the world. On October 14, the Organization of American States hosted an address by the President of the International Institute of Human Rights, Jean-Paul Costa, focusing on the relatively few countries still practicing capital punishment in North and South America. On October 21, the Delegation of the European Union to the U.S. presented a panel discussion featuring DPIC's Executive Director, Richard Dieter (r.), along with other national organizations. The event was cosponsored by the Netherlands, Sweden, and the United Kingdom. Panel members described the sharp decline in the use of the death penalty in the U.S. and future prospects for further change through legislation and court opinions. Among the issues discussed were the quality of representation in capital cases, changes in public opinion, and the effects of the EU's restrictions on drugs for lethal injections in the U.S.
On October 20, the U.S. Supreme Court agreed to hear Chappell v. Ayala (No. 13-1428), a death penalty case from California in which all the black and Hispanic potential jurors were struck from the defendant's trial. Hector Ayala was convicted in 1989 of three murders in San Diego. At his trial, Ayala's attorneys argued that the prosecutor was improperly striking jurors on the basis of race. The judge reviewed the prosecutor's explanation for the strikes without defense attorneys present, saying it was necessary to protect the prosecutor's trial strategy, and concluded the strikes were not racially motivated. The California Supreme Court found that any potential constitutional error related to the racial makeup of the jury or the subsequent closed review was harmless, rejecting Ayala's appeal. The U.S. Court of Appeals for the Ninth Circuit granted Ayala relief and ordered California to retry him. The 9th Circuit held that the constitutional issues could be reviewed without deference to the state court opinion because no ruling based on federal law had been made against Ayala, and that the errors made at trial had an injurious effect on the jury's verdict. The Supreme Court will consider whether more deference was due the state court's decision and whether the 9th Circuit used the correct standard in determining that the trial errors were harmful.
The same Commission that freed former death row inmates Henry McCollum and Leon Brown in September exonerated another man who had been convicted of murder, Willie Womble (l.). The North Carolina Innocence Inquiry Commission freed Womble on October 17, dismissing his 1976 first-degree murder conviction and life sentence. Womble had been convicted of acting as a lookout while another man, Joseph Perry, robbed a convenience store and killed the cashier. Both Perry and Womble received life sentences. Though Womble had always said he was innocent, he never filed a motion to challenge his conviction, perhaps because of his diminished mental capacity (a disability also present in McCollum and Brown). In 2013, Perry wrote a letter to the Innocence Commission stating that Womble was innocent. When Perry learned that his actual accomplice had died, he decided he could reveal Womble's innocence without putting the other man in prison. The Commission investigated Womble's case and found that his confession had been possibly coerced and written by a detective working on the case. Christine Mumma, executive director of the N.C. Center on Actual Innocence, said, “In 2008, the legislature passed a law requiring the recording of interrogations. This is another case showing how important that is.” Granville County District Attorney Sam Currin supported Womble's exoneration, saying, “I apologized to Mr. Womble and to the family of Mr. Roy Bullock, who was the victim. I just felt it was right. The system and the state of North Carolina failed them for 39 years.” Although not sentenced to death, Womble's case shows the risks of capital punishment and the difficulty in discovering innocence.