On June 29, the U.S. Supreme Court held (5-4) in Glossip v. Gross that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."
Lester Bower was executed in Texas on June 3 despite maintaining his innocence throughout the 30 years he spent on death row. The evidence of Bower's innocence included testimony from a woman who said that her boyfriend and three of his friends -- not Bower -- had committed the murders for which Bower was executed. The witness came forward in 1989, after reading that Bower had been sentenced to death for the crime her boyfriend had confessed to committing six years earlier. In 2012, a judge rejected Bower's request to present the testimony to a jury, saying, "the new evidence produced by the defendant could conceivably have produced a different result at trial...it does not prove by clear and convincing evidence that the defendant is actually innocent." Maurice Possley, a senior researcher for the National Registry of Exonerations, explained the judge's decision: "He points out in pretty clear terms that this guy probably would have been found not guilty had this evidence been available at trial. But now, all these years later, he can’t meet the new standard, which is actual innocence. That was not the standard at trial. Then it was guilty beyond a reasonable doubt." Samuel Gross, editor and co-founder of the registry, said, "To me it’s one of the most troubling features of our justice system. In the absence of procedural error, you have no effective escape valve. We don’t have a procedure for reviewing convictions for accuracy."
In an interview with The Marshall Project, Bryan Stevenson (pictured), director of the Equal Justice Initiative and author of Just Mercy, discussed the role the history of slavery, lynchings, and racial terrorism in the South played in the racially-motivated killings of nine black people in an historic black church in Charleston, South Carolina. In the interview, Stevenson described the historical use of the death penalty as a tool to reinforce a racially discriminatory social order. This, he says, is manifest in race-of-victim disparities in death penalty cases: "In Alabama, 65% of all murder victims are black, but 80% of all death sentences are imposed [when victims] are white. And that’s true throughout this country. We’ve used it particularly aggressively when minority defendants are accused of killing white people." Occasionally, he says, states will seek the death penalty for a white man accused of a racially-motivated murder, masking the need for an open and honest discussion of this country's race problems. "You'll see lots of people talking enthusiastically about imposing the death penalty on this young man in South Carolina. But that’s a distraction from the larger issue, which is that we’ve used the death penalty to sustain racial hierarchy by making it primarily a tool to reinforce the victimization of white people." Given its historical legacy as tool of racial oppression, Stevenson urges the abolition of the death penalty, saying, "If I were the governor of South Carolina, I’d say: 'We’re going to abolish the death penalty, because we have a history of lynching and terror that has demonized and burdened people of color in this state since we’ve became a state.'...And I think every southern governor should do the same. That’s when you’d get the different conversations starting in this country. Then you might get some progress."
This fall, the U.S. Supreme Court will hear a Georgia case, Foster v. Humphrey, in which an all-white jury sentenced a black man to death after prosecutors struck every black prospective juror in the case. The Court will determine whether prosecutors violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. In anticipation of the case, The New Yorker published an analysis of tactics used to evade Batson challenges by providing race-neutral reasons for striking jurors. In Philadelphia, a training video told new prosecutors, "When you do have a black juror, you question them at length. And on this little sheet that you have, mark something down that you can articulate later. . . . You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race." In the 1990s, prosecutors in North Carolina -- whose use of peremptory strikes have been held to violate that state's Racial Justice Act -- held training sessions featuring a handout titled, "Batson Justifications: Articulating Juror Negatives." Defense attorneys can challenge these reasons, but such challenges are rarely successful. Stephen Bright, president of the Southern Center for Human Rights, who is representing Foster, said, "You’re asking the judge to say that the prosecutor intentionally discriminated on the basis of race, and that he lied about it. That’s very difficult psychologically for the average judge.” Justice Thurgood Marshall recommended banning peremptory strikes so as to stop racial bias in jury selection. Louisiana Capital Assistance Center director Richard Bourke suggests a more politically realistic reform: track the racial makeup of juries in order to raise public awareness of bias.
Recent editorials from leading newspapers in three of the largest death row states critique flaws in the death penalty and call for its abolition. The Sacramento Bee quoted federal district court judge Cormac Carney's recent ruling finding California's death penalty unconstitutional because executions are so rare that they "serve no retributive or deterrent purpose." The Bee called the state's capital punishment system "an abject failure" and said, "[t]he death penalty has not worked, and never will." In the wake of the exoneration of Alfred Brown from Texas' death row, the Dallas Morning News said, "Brown’s release underscores the unacceptably high potential for killing innocent people despite clear flaws in the prosecutorial system." That editorial concluded,"The criminal justice system is too riddled with imperfections to merit reliance on a sentence that cannot be revisited or reversed once it’s carried out. Not when life without parole is an alternative." In Pennsylvania, The Harrisburg Patriot-News said, "The state should not be in the business of killing people." It urged Gov. Tom Wolf to go beyond the moratorium he imposed on the death penalty earlier this year and "seek an end to the practice entirely." Citing the rarity of executions in Pennsylvania and the difficulties in obtaining lethal injection drugs, the editorial said, "Justice can be served through imprisoning a murderer for the rest of his or her life. Vengeance against the accused is not justice."
A new study by North Carolina's Center for Death Penalty Litigation examines the financial and human costs of cases in which, "prosecutors sought the death penalty despite a clear lack of evidence, resulting in acquittal or dismissal of charges." The report found 56 such cases in North Carolina since 1989, in which innocent people spent a total of 112 years spent in jail, with $2.4 million spent in defense costs alone in these weak death penalty cases. The authors compare these cases to those in which people were wrongfully convicted and sent to death row, saying, "We found cases in which state actors hid exculpatory evidence, relied on junk science, and pressured witnesses to implicate suspects. In several cases, there was no physical evidence and charges were based solely on the testimony of highly unreliable witnesses, such as jail inmates, co-defendants who were given lighter sentences in return for cooperation, and paid informants. Reliance on such witnesses was a factor in more than 60 percent of the cases we studied." In addition to the clear-cut time and financial costs, the study also describes the effects of wrongful prosecutions on the defendants: "In addition to leaving many in financial ruin, the state does not even do these exonorees the favor of clearing their criminal histories. They must request a court order to expunge their criminal records, an expensive and lengthy process. Those who were already living at the margins of society often struggled to find jobs, and some fell into homelessness after they were released from jail." The authors conclude by contrasting the intended use of the death penalty with their findings: "A punishment as serious as execution should be pursued only in the most ironclad cases: those with the strongest evidence of guilt and in which the circumstances of the crime make the defendant more culpable than most—the 'worst of the worst.' Yet, the reality is entirely different. This report uncovers a system in which the threat of execution is used in the majority of cases, regardless of the strength of the evidence."
84 years after Pennsylvania executed a black 16-year-old for the 1931 murder of his white school matron, the descendants of the boy's trial lawyers are trying to exonerate him. Samuel Lemon, the great-grandson of Alexander McClay Williams' defense attorney, William Ridley (pictured), has researched the case and concluded that Williams was innocent of murdering Vida Robare. He is trying to obtain a posthumous pardon for Williams. Robare had been granted a divorce from her ex-husband -- whom Lemon believes committed the murder -- on grounds of "extreme cruelty." She was stabbed 47 times with an ice pick during the murder and suffered two broken ribs and a skull fracture. The day after the murder, Chief County Detective Oliver N. Smith declared that "[t]his crime was committed by a full grown and strong man. The woman was unmistakably athletic and could have fought off a boy." Two days later, Williams gave a confession after police interrogation in undocumented circumstances. The confession, which Lemon believes was coerced, did not match the details from the crime scene. "He didn't have the motive. He didn't have the time. He didn't have the ability," Lemon said. When he was sentenced to death, Williams shouted that he had been promised he wouldn't be executed if he confessed. The case bears striking similarities to the case of George Stinney, a 14-year-old black boy who was wrongfully convicted and sentenced to death by an all-white jury in South Carolina in 1944 for the murder of two young white girls.
CORRECTION: On June 18, the U.S. Supreme Court announced its decision in Brumfield v. Cain, a Louisiana death penalty case dealing with intellectual disability. The Court held that the federal district court was entitled to conduct an evidentiary hearing to determine whether Kevan Brumfield has intellectual disability and is therefore ineligible for execution. It reversed a ruling of the United States Court of Appeals for the Fifth Circuit that would have deferred to a Lousiana state court decision permitting Brumfield to be executed without a hearing on his claim of intellectual disability. After an extensive evidentiary hearing, the district court held that Brumfield was intellectually disabled. By a vote of 5-4, the Supreme Court ruled that Louisiana had unreasonably determined the facts when it decided that Brumfield had not presented sufficient evidence of intellectual and adaptive impairments to warrant an evidentiary hearing in state court. Writing for the majority, Justice Sotomayor said, "After Atkins was decided, petitioner, a Louisiana death-row inmate, requested an opportunity to prove he was intellectually disabled in state court. Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected petitioner’s claim. That decision, we hold, was 'based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' Petitioner was therefore entitled to have his Atkins claim considered on the merits in federal court." The case returns to the Fifth Circuit for consideration of whether the district court's findings are supported by the record.
The Spring 2015 update to the NAACP Legal Defense Fund's publication, Death Row, USA, reports that 3,002 men and women were on death rows across the United States as of April 1, 2015. This reflects a continuing decline in the size of death row, down 13% since Spring 2005, when 3,452 people were on America's death rows. Several states saw significant drops in their death row populations over that period while carrying out few or no executions: Pennsylvania dropped from 230 to 184 (no executions), North Carolina fell from 197 to 157 (9 executions), and Idaho declined by half, from 22 to 11 (2 executions). The nation's largest death row states are: California (746), Florida (401), Texas (271), Alabama (201), and Pennsylvania. The racial demographics of death row nationwide are 43% white, 42% black, 13% Latino/a, and 2% other races. Only 54 death row inmates (1.8%) are female. The most racially concentrated death rows are Delaware (76% racial minorities); Texas (72%), Louisiana (71%), California (66%), and Pennsylvania (65%).
Third Circuit Rebuffs "Concerted Effort" to Exclude Capital Habeas Lawyers from Pennsylvania State CasesPosted: June 16, 2015
On June 12, a unanimous panel of the U.S. Court of Appeals for the Third Circuit rebuffed what it described as "a concerted effort" by Pennsylvania prosecutors to bar lawyers from the Philadelphia federal community defender's capital habeas unit from representing death row inmates in Pennsylvania state-level appeals. The former Chief Justice of the Pennsylvania state courts had sharply critized the unit -- which has overturned more than 100 Pennsylvania death sentences -- for what he termed its "abusive" litigation tactics and its "commitment of . . . manpower" at the level "one would expect in major litigation involving large firms." Pennsylvania state and county prosecutors subsequently attempted to remove the habeas unit lawyers from representing death-row inmates in seven separate cases, alleging that its participation in state post-conviction proceedings constituted misuse of federal funds. The Third Circuit ruled that the habeas unit's appearance in state court was governed by the terms of its federal sustaining grant as determined by federal court administrators, and that Pennsylvania could not exclude the habeas unit from representing its capital clients in state court. "It is difficult not to wonder why the commonwealth is attempting to bar concededly qualified defense attorneys from representing condemned indigent petitioners in state court," Chief Judge Theodore McKee said in a concurring opinion. "A victory by the commonwealth in this suit would not resolve the legal claims of these capital habeas petitioners. Rather, it would merely mean that various cash-strapped communities would have to shoulder the cost of paying private defense counsel to represent these same petitioners, or that local pro bono attorneys would have to take on an additional burden."