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After 28 Years, Judge Spares Life of Inmate With Mental Disabilities

Edward Lee Elmore, South Carolina’s longest-serving death row inmate, was spared from execution when a state circuit court ruled he suffered from mental retardation.  The sentence reversal came almost 28 years after Elmore was sent to death row in 1982 for a sexual assault and murder, and 8 years after the U.S. Supreme Court held in Atkins v. Virginia that the execution of the mentally retarded is a cruel and unusual punishment, and therefore violates the Eighth Amendment. The decision left defining “mentally retarded” to individual states. Elmore failed and repeated first grade twice, failed and completed second grade once, and did not finish third grade until he was 12. He then withdrew from fifth grade when he was 15. In 1971, at age 12, Elmore's IQ tested at 72 and 58 on separate tests.

NEW VOICES: Past President of Prestigious American Law Institute Says Death Penalty "Unworkable"

Michael Traynor, President Emeritus of the prestigious American Law Institute (ALI), called the ALI’s recent withdrawal of its model death penalty law “a striking repudiation from the very organization that provided the blueprint for death penalty laws in this country.” He noted that the ALI had carefully reviewed the death penalty process, and that "Now, after searching analysis by our country's top legal minds, the institute has concluded that the system it created does not work and cannot be fixed."  The ALI, with membership of more than 4,000 lawyers, judges and law professors, is the leading independent organization in the United States producing scholarly work to clarify and improve the law. Its model penal code became the prototype for death penalty laws across the United States after the old state laws were struck down by the Supreme Court in 1972. Last fall, Traynor noted, the ALI withdrew its support for the model death penalty law, effectively concluding that “we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.”

Texas Inmate Facing Execution Denied DNA Testing

Henry Skinner is scheduled for execution in Texas on February 24 despite the lack of DNA testing of critical evidence from the crime scene that could lead to his exoneration.  Skinner has always maintained his innocence of the 1993 murder of his girlfriend and her two grown sons in Tampa, Texas.  At his trial, the prosecution presented the results of selective DNA testing on some of the crime evidence that tended to prove Skinner's presence at the scene, which was his place of residence, a fact he has never disputed.  But the state has repeatedly refused his request to test other evidence, including material found on the victim, that could point to another suspect.  In addition, an investigation by journalism students from Northwestern University in 1999 and 2000 revealed that a key witness from the trial had recanted her testimony linking Skinner to the crime.  Texas has already executed a number of individuals who may have been innocent, leaving a cloud of doubt on the fairness of the criminal justice system.  By conducting relatively routine DNA tests before his execution, the doubts surrounding Skinner's case could be resolved one way or the other.

NEW VOICES: Medical Society of New Jersey Urges AMA to Oppose Death Penalty

The Medical Society of New Jersey recently approved a resolution calling upon the American Medical Association (AMA) to advocate for the "abolition of capital punishment by each jurisdiction in the United States of America ... and replace it with life in prison without the possibility of parole." Among the stated rationales for the resolution, the society noted that "Numerous reports document pernicious and recurring errors and other fallibilities associated with the judicial process of capital punishment as currently imposed that include flawed testimony provided by medical scientists." The Society also pointed to the fact that New Jersey had recently abolished the death penalty.  Currently, the American Medical Association Code of Medical Ethics states: "A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution."  The New Jersey delegation is scheduled to speak for the resolution at the AMA's annual meeting in June 2010.

NEW VOICES: Prosecutors in Texas Cite High Costs and Uncertainty as Reasons for Less Use of Death Penalty

More prosecutors in Texas are opting not to seek the death penalty, according to Randall County District Attorney James Farren, a trend that has been evident over the last decade and will likely continue.  Many prosecutors weigh the uncertainty in securing a death sentence against the high litigation costs as reasons for opting for other alternative sentences even when the death penalty is available.  "The facts of the case are a tremendous factor in the decision on whether to pursue a death penalty or not," said District Attorney Randall Sims of the 47th judicial district.  "You need to have a dead-bang cinch guilt-innocence case and one that you'll prove very easily the person on trial is the person who did it."

Farren points to the case of Levi King as the "quintessential example" of why district attorneys do not seek the death penalty in some cases. District Attorney Lynn Switzer of the 31st judicial district opted to pursue a death sentence against King, who was accused of killing three people in 2005. Even though he pleaded guilty to the crimes, the jury did not impose the death penalty. Switzer's office spent over $750,000 to bring King to trial, about 10% of the county's annual budget. The cost of the trial was a reason why county commissioners were forced to raise taxes and withhold employee raises last year.

Resources on the Death Penalty for Communities of Faith

The Death Penalty Information Center has recently updated its information packet entitled "Death Penalty Resources for Communities of Faith."  This packet was initially developed to help a wide spectrum of religious groups address the death penalty by providing information, discussion questions, and multi-media resources. These materials offer a framework useful for any discussion of capital punishment and do not directly involve religious or moral instructions.  Each packet contains a CD with statements on the death penalty from various religious denominations, death penalty fact sheets in English and Spanish, and answers to questions about the death penalty.  It also includes video clips, bulletin inserts, and discussion guides on four key death penalty issues: Innocence, Race, Victims and Costs.

The packet has been praised by such religious leaders as Bill Mefford of the United Methodist Church, Rabbi Leonard Beerman, and Sister Helen Prejean, who said, "The death penalty is one of the most critical issues of our time, and people of all faiths should contribute to the dialogue. The Death Penalty Information Center has rendered a wonderful service by offering religious leaders the key tools they need for raising this issue with their congregations.”

No Further Punishment Recommended for Presiding Judge Who Closed Door on Death Penalty Appeal

On January 20, a special master appointed to review the conduct of an appeals court judge who would not order her court to stay open late to receive a death penalty appeal, concluded that her conduct did not merit removal from office.  Special Master David Berchelmann of San Antonio found that the action of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, "does not warrant removal from office or further reprimand beyond the public humiliation she has surely suffered." Partly as a result of Judge Keller's refusal to keep the court open beyond 5 pm, Michael Richard's appeal was not filed and he was executed the same day.  Richard's attorneys had asked that the court stay open late to receive their appeal that had been delayed by computer problems.  The appeal challenged Texas' lethal injection process in light of an announcement by the U.S. Supreme Court that same day.  All other inmates around the country were routinely granted stays of execution after that day while the Supreme Court considered the constitutionality of lethal injection.  Judge Berchelmann's findings will be sent to the judicial conduct commission to decide whether any further action is warranted.

PARADE MAGAZINE: The Cost of Capital Punishment

A recent article in Parade magazine looked at the cost of the death penalty, especially in light of the budgetary crises confronting most states in today's economy. New Mexico and New Jersey recently abolished the death penalty, and costs played a significant role in their decisions. New Mexico State Rep. Gail Chasey (D., Albuquerque) noted, “We can put that money toward enhancing law enforcement, public works, you name it." In New Jersey a commission found that using the alternative sentence of life without parole would save the state $1.3 million per inmate in incarceration costs alone because a death row facility requires more personnel to operate. Finally, a recent study in North Carolina found that the state could save at least $11 million a year by repealing the death penalty.

In 2009, 52 prisoners (out of the total 3,279 on death row across the country) were executed. “People tend to think, ‘Oh, you get the death penalty, then there’s an execution,’” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “But more often than not, the death penalty turns out to be a very expensive form of life imprisonment."  Read full text below.

BOOKS: "Capital Punishment On Trial"

A new book by David Oshinsky entitled "Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America" takes a closer look at the groundbreaking Supreme Court case that stopped the death penalty in 1972. The author, a Pulitzer Prize-winning historian who is the holder of the Jack S. Blanton Chair at the University of Texas and a visiting professor at New York University, discusses the debates and controversy surrounding the case of Furman v. Georgia, including a focus on the issues of racial prejudice and arbitrariness. Austin Sarat called the book "A meticulously researched and elegantly written account by a masterful storyteller.... Filled with striking insights."  The book will be published by University Press of Kansas on April 14, 2010.

Declining Use of Death Penalty in North Carolina Challenges Wisdom of Retaining Costly Practice

In an opinion piece in the News & Observer, Professor Frank Baumgartner of the University of North Carolina-Chapel Hill, recently wrote that the declining use and high costs of the death penalty in the state put into question the wisdom of retaining the punishment in North Carolina. Baumgartner noted that while murder rates in the state have remained relatively unchanged, the number of capital punishment trials and death sentences have declined sharply. Prosecutors formerly sought the death penalty in 10%-12% of all murders but now seek it in less than 2% of the cases. Juries have likewise moved away from imposing death sentences. In 1996, 57% of all death penalty trials ended with the death penalty, a stark difference from the 8% in 2008.

Baumgartner cited a recent report by Duke University economist Philip Cook that estimated a statewide savings of $11 million annually if North Carolina abolished the death penalty. Baumgartner wrote, "Considering that prosecutors have been requesting death less and less, and that juries have been even more sparing in their willingness to impose it, Cook's estimate takes on additional meaning. If we can save that much money by making such a small change from current practices, why not?"  Read full text below.