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Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight ExecutionsPosted: June 24, 2016
A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.
The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?"
Pennsylvania's taxpayers have paid an estimated $272 million per execution since the Commonwealth reinstated its death penalty in 1978, according to an investigation by The Reading Eagle. Using data from a 2008 study by the Urban Institute, the Eagle calculated that cost of sentencing 408 people to death was an estimated $816 million higher than the cost of life without parole. The estimate is conservative, the paper says, because it assumes only one capital trial for each defendant and it does not include the cost of cases in which the death penalty was sought but not imposed. The total cost may exceed $1 billion. An earlier investigation had estimated a cost of at least $350 million, based on the 185 inmates who were on death row as of 2014, but additional research into the cases that had already been overturned, or in which inmates died or were executed prior to 2014, revealed a total of 408 people who had been sentenced to death. Pennsylvania has carried out only three executions under its current death penalty statute. State Senator Stewart Greenleaf, a Republican and chairman of the Senate Judiciary Committee, said, "We're scratching for every dollar that we can right now. To continue to spend that kind of money is hard to justify." The Eagle's investigation also uncovered geographic disparities in the application of the death penalty. 60% of all death sentences came from just four counties: Philadelphia, Allegheny, York, and Berks. Death sentencing rates also varied dramatically, with about a third of counties handing down zero death sentences, while three (Columbia, Cumberland, and Northumberland) had 5 or more death sentences per 100 murders. Somerset District Attorney Lisa Lazzari-Strasiser, who has filed one death penalty case in five years as District Attorney, said, "I think our system is broken. It doesn't do justice to any one of the stakeholders, in my opinion, not the taxpayers, the victims or the defendants. It doesn't work."
The U.S. Supreme Court granted writs of certiorari in three jury discrimination cases on June 20, vacating each of them and directing state courts in Mississippi, Alabama, and Louisiana to reconsider the issue in light of the Court's recent decision in Foster v. Chatman. Two of the petitioners, Curtis Flowers of Mississippi and Christopher Floyd of Alabama, are currently on death row. The third, Jabari Williams, was convicted in Louisiana of second-degree murder. Earlier this year, the Supreme Court granted Timothy Foster a new trial because prosecutors illegally excluded blacks from his jury. Flowers, Floyd, and Williams all raised issues of racial discrimination in jury selection that were rebuffed in the state courts. As in Foster's case, the prosecutor's notes in Floyd reflect race-conscious jury strikes. Floyd's prosecutor marked African American potential jurors with a "B" on its list of jurors to remove, then struck 10 of 11 black prospective jurors. Flowers has been tried six times. His first two convictions were overturned because of prosecutorial misconduct, and his third as a result of racial bias in jury selection. His fourth trial ended in a mistrial and his fifth trial resulted in a hung jury. At his most recent trial, eleven white jurors and one black juror convicted him after just 30 minutes of deliberation. The Equal Justice Initiative, which represents Floyd, released a statement saying, "Racial bias has been a longstanding problem in Alabama, where more than two dozen cases have been reversed after courts found that prosecutors engaged in intentional racial discrimination during jury selection." EJI Executive Director, Bryan Stevenson, said racial bias in jury selection “undermines the integrity of the criminal justice system.” He told the Montgomery Advertiser, "What we’ve found is regardless of the race of the defendant, a lot of prosecutors appear not to trust black people in juries, which is illegal and unconstitutional.”
Sharon Risher, whose mother, Ethel Lance (pictured), and cousins, Susie Jackson and Tywanza Sanders, were killed in the racially-motivated shooting at Charleston's Emanuel AME Church one year ago, says she has not foregiven Dylann Roof, the accused perpetrator, but does not think he should be sentenced to death. In an article for Vox, Risher shared her experiences since the shooting, discussing her emotional reactions to her mother's death and her views on gun control, the removal of the Confederate flag from South Carolina's statehouse, and capital punishment. Risher, who is a church chaplain, says that "[t]here is no right way to grieve." Unlike her sister, Nadine Collier, who publicly voiced her forgiveness of Roof just days after the shooting, Risher is "still in the anger stage" of grieving and says she has not forgiven Roof. Still, she does not believe a death sentence is appropriate. "Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her. That’s my conviction because of my faith," she said. "I don’t believe as human beings that we should take away someone’s life just because we have the power to do so." A recent poll found that nearly two-thirds of black South Carolinians prefer a sentence of life without parole for Roof if he is convicted.
The Texas Court of Criminal Appeals has granted a stay of execution to Robert Roberson (pictured), who had been scheduled to be executed on June 21 for the 2003 death of his two-and-a-half-year-old daughter, Nikki Curtis. The court's June 16 stay order halts Roberson's execution under a recent Texas law permitting court challenges based on new scientific evidence of innocence. Prosecution experts had testified at Roberson's trial that his daughter died of Shaken Baby Syndrome, asserting that the child exhibited symptoms that she must have been shaken or beaten. Roberson said she had fallen out of bed during the night, but that she seemed fine and went back to sleep. Hours later, when he checked on her again, she was blue and could barely breathe. Prosecutors charged him with murder and with sexually assaulting his daughter - although there was no evidence that she had been sexually assaulted. The sexual assault charges were later dropped, but only after the prosecution had discussed them in open court in front of the jury. The court granted Roberson review of four issues: that (1) new scientific evidence establishes that he would not have been convicted; (2) the State's use of "false, misleading, and scientifically invalid testimony” about Shaken Baby Syndrome violated due process; (3) Roberson is "actually innocent of capital murder"; and (4) "the State’s introduction of false forensic science testimony that current science has exposed as false" made his trial fundamentally unfair. "Instead of taking Robert’s explanation about a fall seriously or exploring all possible causes of the injury sustained by a chronically ill child who had been at the doctor’s office with 104.5-degree temperature only two days before," Roberson's lawyer, Gretchen Sween wrote, "a tragedy was hastily deemed a crime and a father, doing the best he could to care for his daughter despite severe cognitive impairments, was branded a murderer." Roberson presented affidavits from four medical experts challenging the accuracy and scientific validity of the State's shaken baby testimony. Forensic pathologist Dr. Harry Bonnell, in an opinion shared by all four defense experts, wrote: "it is impossible to shake a toddler to death without causing serious neck injuries—and Nikki had none." They suggest several alternate theories for Curtis' death, including meningitis caused by an ear infection, a fall like the one Roberson described to investigators, or a congenital condition. Roberson's appeal argues that, "[w]hen the trial record is viewed through the lens of current science and evidence-based medicine, it is clear that he is innocent of capital murder." The court returned the case to the trial court in Anderson County to conduct an evidentiary hearing on Roberson's claims.
The Delaware Supreme Court heard oral argument on June 15 in Rauf v. State, a case challenging the constitutionality of the state's death sentencing statute on the grounds that it violates the Sixth Amendment right to trial by jury. The challenge arose in the wake of the U.S. Supreme Court decision in January 2016 in Hurst v. Florida, which struck down Florida's sentencing scheme, saying that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough." Delaware, Florida, and Alabama are the only states that permit a judge to make the final sentencing decision in capital cases after receiving a non-unanimous sentencing recommendation from a jury. At the time of Hurst, Florida death penalty jurors were asked to consider and weigh aggravating and mitigating circumstances without reporting which factors they found, and then make a recommendation of sentence. However, the trial judge ultimately determined whether aggravating factors existed that made the defendant eligible for the death penalty and decidede whether to impose a life sentence or the death penalty. After Hurst, the state amended its statute to require the jury to unanimously find aggravating circumstances and vote at least 10-2 for death before the judge could impose a death sentence. The Delaware Supreme Court must decide whether Delaware's system, which requires a jury to unanimously determine whether an aggravating factor exists, but allows a judge to weigh aggravating and mitigating factors, meets constitutional requirements. Santino Ceccotti, a public defender who argued on behalf of Benjamin Rauf, a defendant whose capital case is pending, said the weighing of aggravating and mitigating factors is a fact finding, and therefore should be done by a jury. "The Sixth Amendment requires not a judge, but a jury, to find each fact," he said. Deputy Attorney General Sean Lugg, who argued for the state, conceded that Delaware's weighing process was a fact finding necessary before a death sentence could be imposed, but said the jury fact finding required by Hurst was limited to determining whether the defendant was eligible for the death penalty, not what the ultimate sentence should be. A Florida trial court ruled last week that Florida's new statute violated Hurst because the determination that aggravating circumstances outweigh mitigation is a fact finding that must be made by the jury. An Alabama trial court has also ruled that its judicial sentencing statute violates Hurst. All capital trials in Delaware are on hold while the court considers the case.
On June 13, 1966, the U.S. Supreme Court decided Miranda v. Arizona, granting suspects critical constitutional protections designed to combat abusive police interrogation practices. In commentary for The Marshall Project, Samuel Gross (pictured) and Maurice Possley of the National Registry of Exonerations discuss the interplay between false confessions, the death penalty, and wrongful convictions and describe how Miranda's famous rights to remain silent and to be represented by a lawyer during an interrogation have failed to prevent numerous false confessions and false charges against others. Nearly a quarter of the 1,810 exonerations recorded in the National Registry of Exonerations involve false or fabricated confessions, including 227 (13%) cases in which suspects falsely confessed and 195 (11%) cases in which they falsely implicated someone else. Despite being given their "Miranda warning," many suspects agree to speak with interrogators without a lawyer present and confess to crimes they did not commit, as a result of the mental stress of interrogation, threats of severe punishment if they do not cooperate, deceptive interrogation practices, or because they do not understand what they are doing. 72% of all exonerees with reported mental illness or intellectual disability had falsely confessed. Among them was Earl Washington, a man with an IQ of about 69, who was convicted of a rape and murder after falsely confessing during two days of interrogations, despite the fact that his confession was full of errors about the facts of the crime. He spent 16 years on death row in Virginia before being exonerated by DNA evidence. Gross and Possley explain that "some innocent suspects ... blame others to deflect responsibility and reduce their punishment." They point to the case of Richard Ochoa, who, to avoid the death penalty, falsely implicated his roommate Richard Danziger as the actual killer in a 1988 murder in Austin, Texas, pled guilty to a murder he did not commit, and testified against Danziger at trial. In 2002, both were exonerated by DNA. The authors praise the Miranda decision as an important step in regulating coercive interrogation practices, but say additional reforms are needed. In particular, they recommend that all interrogations, especially in homicide cases, be recorded, as already required in 23 states. They write, "Recording greatly helps us evaluate any claim that a confession was false, and it has taught us how to improve the conduct of interrogations."
POLL: By 2:1 margin, Black South Carolinians Support Sentencing Church Shooter to Life Without ParolePosted: June 14, 2016
A recent poll conducted by the University of South Carolina reveals deep racial divisions in the state over the death penalty and over the appropriateness of applying it in the case of Dylann Roof, the white defendant who faces state and federal capital charges in the race-based killings of nine black members of Emanuel AME Church in Charleston. According to the poll, 64.9% of African Americans in South Carolina oppose the death penalty, while 69.4% of white South Carolinians say they support it. Blacks were also more than twice as likely to support a sentence of life without parole for the church killings than to support the death penalty. Nearly two-thirds of black South Carolinians (64.7%) said that Roof should be sentenced to life without parole if convicted of the nine killings, while less than a third (30.9%) favored the death penalty. 4.4% said they did not know what sentence should be imposed. The views of white South Carolinians were diametrically opposite, with 64.6% saying they think Roof should be sentenced to death if convicted and 29.9% prefering life without parole. 5.6% of whites said they did not know which sentence should be imposed. Monique Lyle, who conducted the poll, said the results reflect consistent opposition to the death penalty among most black South Carolinians. Kylon Middleton, senior pastor of Mount Zion AME Church in Charleston, said the black community's opposition to capital punishment is tied to racial bias in the criminal justice system, adding, "We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment." A recent study of South Carolina's death penalty found significant racial disparities in death sentences. For example, the study found that although 48% of South Carolina murder victims are black males, those cases account for only 8% of the state's death sentences. Earlier studies also found striking evidence of geographic and racial arbitrariness in South Carolina's application of capital punishment. The new poll also found profound differences in the views of South Carolinians as to how they believed African Americans were treated in the U.S. criminal justice system. 82.3% of blacks say that the justice system is biased against blacks. 59.5% of whites say it treats blacks fairly and 3.9% say it is biased in favor of blacks.
Highlighting Growing Problem, California Attorney General Says Death Row Prisoner Too Mentally Ill to ExecutePosted: June 13, 2016
Saying that he has a permanent condition that makes him too mentally ill to execute, the office of California Attorney General Kamala Harris (pictured) recently asked the California Supreme Court to remove Ronnie McPeters from California's death row and resentence him to life without parole. The action is rare because McPeters is not facing an imminent execution date, but Chief Deputy Attorney General Nathan Barankin said his office now considers some death row prisoners so "grievously incompetent" that they will never be able to be executed. The office says that such prisoners should be declared incompetent to be executed and removed from death row. McPeters has been on death row for 30 years, and is one of nine California death row prisoners whom federal judges have found incompetent to assist their attorneys in habeas corpus appeals. His mental condition has further deteriorated while on death row, where he has received inconsistent mental health care: some prison doctors have involuntarily medicated him for schizophrenia, while another had him involuntarily retrained for five days before asserting that McPeters was faking his illness. According to prison records, McPeters has at various times spread his feces on himself and the walls, hoarded it for safekeeping, soaked himself in urine, and carried on conversations with a wife and children who do not exist, and is "tormented by the inner voices of the relatives" of the woman he murdered. He was first declared incompetent in 2007 by U.S. District Judge Lawrence O'Neill, who at a status conference six years later said, "We don’t have one scintilla of evidence ... that he is anything but incompetent." McPeters' case highlights a growing problem in California and across the nation. A Los Angeles Times investigation found 20 inmates, including McPeters, who had been diagnosed with schizophrenia, psychosis, or paranoia, and California recently became the first state to open a death row psychiatric ward, which was full to capacity within a year.