Recent Legislative Activity

Nebraska Supreme Court Hears Challenge to Death Penalty Referendum

The Nebraska Supreme Court heard oral argument on May 25 in a challenge to the proposed November referendum that could reverse the state legislature's 2015 repeal of the death penalty (vote results pictured left). Christy and Richard Hargesheimer, who oppose the death penalty, are challenging the documents submitted by Nebraskans for the Death Penalty, the organization supporting the referendum, on the grounds that the group violated state law when they failed to list Governor Pete Ricketts as a sponsor of the referendum. Nebraska state law requires proponents of a ballot initiative to disclose all of the sponsors of the proposed referendum. Ricketts vetoed the legislature's 2015 repeal of the death penalty, but the legislature voted 30-19 to override his veto. Ricketts then personally contributed $200,000 and, in combination, he and his father donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. Much of the argument Wednesday focused on the definition of who is a "sponsor" for the purposes of a referendum campaign. Alan Peterson, an attorney for the Hargesheimers, said the sponsor is the primary initiating force, "the initiator, the instigator." Attorneys for Nebraskans for the Death Penalty argued that the sponsor is someone willing to take legal responsibility for the petition paperwork and said Peterson's definition was "unworkable and would chill involvement in the democratic process." Peterson also argued that a key document required to place the referendum on the November ballot had been filed improperly because it was not an affidavit or sworn statement, as required by Nebraska law. A trial court ruled in February in favor of Nebraskans for the Death Penalty, leading to the Hargesheimer's appeal.

Florida Judge Sentences Man to Death Under Sentencing Law That Supreme Court Ruled Unconstitutional

A Florida trial judge in St. Lucie County sentenced Eriese Tisdale to death on April 29 for the killing of a sheriff's sergeant, relying on sentencing procedures from the version of Florida's death penalty law that the U.S. Supreme Court declared unconstitutional in Hurst v. Florida. The jury in Tisdale's case considered the evidence in the penalty phase of Tisdale's trial under the old Florida law, voting 9-3 to recommend a death sentence without specifying the aggravating factors that would make Tisdale eligible for the death penalty. The Supreme Court struck down Florida's sentencing procedure in Hurst because a judge, rather than a jury, made the factual determination of aggravating circumstances that were necessary to impose a death sentence. In response to Hurst, Florida enacted a new law, which went into effect March 7, requiring juries to make unanimous determinations of aggravating factors, and preconditioning any death sentence upon a jury vote of at least 10-2 vote in favor of death. The statute declares "If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole." In those circumstances, the law states, "the court shall impose the recommended sentence." Tisdale's penalty phase was tried in October 2015, before the Supreme Court declared the sentencing procedures unconstitutional, and the jury's 9-3 recommendation for death came before the new law adopted the 10-2 requirement. His lawyers argued that he could not be sentenced to death because the old procedures were unconstitutional and the jury vote did not qualify as a death recommendation under the new law. But a St. Lucie County judge ruled that the jury's unanimous vote to convict Tisdale for the murder of a law enforcement official amounted to a unanimous finding of an aggravating circumstance, accepted the jury's 9-3 death recommendation, and sentenced Tisdale to death. Tisdale is the first person sentenced to death in Florida since the new law went into effect.

Tennessee Legislature Unanimously Passes Bill to Require Preservation of Biological Evidence in Capital Cases

On April 13, the Tennessee House of Representatives joined the Tennessee Senate in unanimously approving a bill that would mandate the preservation of biological evidence in cases involving a death sentence. The House voted 94-0 in favor of the bill after the Senate had passed the bill on April 4 by a 31-0 vote. If the governor signs the bill, such evidence must be held until the defendant is executed, dies, or is released from prison. Destruction of evidence will be handled as criminal contempt. At the House hearing for the bill, Ray Krone (pictured), who was exonerated from Arizona's death row and now lives in Tennessee, testified to the importance of DNA evidence. Krone was exonerated after DNA from the victim's shirt was tested and was found to match neither the victim nor Krone. "That DNA not only saved my life.” Krone said. “It also, because it was preserved by the Phoenix Police Department, it identified the true murderer.” DNA testing also played a key role in the Tennessee death row exonerations of Paul House and Michael McCormick. A March 2007 Tennessee Death Penalty Assessment Report by the American Bar Association's Death Penalty Moratorium Implementation Project (now the ABA Death Penalty Due Process Review Project) had found that Tennessee death penalty law failed to comply with ABA recommendations on the collection, preservation, and testing of DNA and other evidence. The ABA Death Penalty Due Process Review Project has found that only 2 of the 14 states whose death penalty procedures it assessed complied with the ABA recommendations on preservation of biological evidence in death penalty cases.

Virginia Governor Rejects Mandatory Use of Electric Chair, Proposes Lethal Injection Secrecy

Virginia Governor Terry McAuliffe rejected a bill that would have employed the electric chair as the state's method of execution if lethal injection drugs are unavailable. Instead, he offered amendments that would permit the Commonwealth's Department of Corrections to enter into confidential contracts to obtain execution drugs from compounding pharmacies, whose identities would be concealed from the public. His proposal is similar to legislation he backed last year that failed because of concerns about its secrecy provisions. McAuliffe's amendments will go before the Virginia legislature during their veto session, which begins April 20. Under Virginia law, the legislature may accept the amendments by a simple majority vote or override the governor's action again passing the unamended original bill by a two-thirds vote in both Houses of the legislature. If there is insufficient support for either option, the original bill returns to the Governor where he can veto it, sign it, or allow it to become law without his signature. Many states have adopted secrecy policies as they seek alternative sources of lethal injection drugs, but a Missouri judge recently ordered that state to reveal the sources of its execution drugs. The amendment proposed by Gov. McAuliffe states that pharmacies' identifying information, "shall be confidential, shall be exempt from the Freedom of Information Act . . . and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown." Virginia law currently directs condemned prisoners to choose between lethal injection and the electric chair, but the bill as initially approved by the legislature would have given the state authority to use the electric chair if lethal injection drugs were deemed to be unavailable, even if the prisoner had selected lethal injection.

EDITORIALS: Kentucky Newspaper Reverses Position on the Death Penalty

The Lexington Herald-Leader, Kentucky's second-largest newspaper, announced it was ending its long-held support for the death penalty, and now believes the state legislature should abolish capital punishment. Describing its previous position as "keep it but fix it," the editors stated, "we must now concede that the death penalty is not going to be fixed and, in fact, probably cannot be fixed at any defensible cost to taxpayers." Citing the 2011 American Bar Association assessment of Kentucky's death penalty, the Herald-Leader said the system was "rife with injustices and the potential for error." Among the reasons cited in the paper's editorial for the changing its position was the negative effects of the death penalty on victims' families and correctional officers. It quoted Dr. Allen Ault, who oversaw executions in Georgia, and who said, "I do not know one [correctional officer] who has not experienced a negative impact," noting an increased risk of depression, substance abuse, and suicide.

Florida Legislature Passes Bill Requiring Agreement of 10 Jurors Before Judge May Impose Death Sentence

UPDATE: Gov. Rick Scott signed the bill into law on March 7. Previously: The Florida legislature passed a bill on March 3 to restructure its death penalty statute in response to the U.S. Supreme Court's ruling in Hurst v. Florida, which declared the state's death penalty procedures unconstitutional. The bill modifies Florida's practice of permitting judges to impose death sentences without the unanimous agreement of jurors by requiring that at least ten jurors recommend death before the judge may impose a death penalty. It also directly addresses Hurst by requiring that jurors unanimously find any aggravating circumstances that the prosecution seeks to prove to make the defendant eligible for the death penalty. Previously, Florida judges made the determination whether the prosecution had proven aggravating circumstances that made the defendant eligible for the death penalty, and the statute permitted the judge to impose death based upon a simple majority recommendation or, in certain circumstances, when the jury had recommended life imprisonment. The new 10-2 requirement matches the standard applied in Alabama. Along with Delaware - which permits the court to impose death after a simple majority recommendation by the jury - these states stand alone in the country in allowing a death sentence after a jury's non-unanimous sentencing recommendation. Delaware and Alabama still permit judicial override. Delaware's system is currently under review by that state's highest court, and on March 3, an Alabama circuit court judge declared that state's sentencing procedure unconstitutional.

Missouri Likely to See Change After Historic High in Executions

A decline in executions is likely in Missouri after two years of unusually high numbers. In 2014, Missouri tied with Texas for the most executions in the U.S., and it was second to Texas in 2015. However, changing attitudes about the death penalty--similar to national shifts--are evident in Missouri's sentencing trends: no one was sentenced to death in Missouri in 2014 or 2015, and less than one person per year has been sentenced to death in the past seven years. Moreover, a bill with bi-partisan support has been introduced to repeal the death penalty. It passed the Senate General Laws committee in late January. An editorial in the Columbia Daily Tribune highlighted the political diversity in the legislative support for the measure. Among those who voted the bill out of committee were two Democrats and two Republicans. Sen. Paul Wieland cited his pro-life views as a reason for support, while Sen. Rob Schaaf said, as long as it is "not fairly applied...I'm going to be opposed to the death penalty."

PUBLIC OPINION: Support for Repealing Death Penalty Grows in California

A recent survey of Californians conducted by The Field Poll found that voters are evenly split between wanting to speed up the execution process (48%) and supporting repeal of the death penalty and replacing it with life without parole (47%). Support for repeal has grown since 2014, when the question was last asked. At that time, 40% favored replacing the death penalty with life without parole and 52% supported speeding up the process. Californians may face a choice between the two options in November, as competing initiatives have been proposed. Republicans, whites, and voters over age 50 were more likely to support speeding up executions, while Democrats, Hispanics, blacks, and voters under 50 favored repealing the death penalty. "There continues to be a very strong movement away from support for the death penalty in California,” said Matt Cherry, executive director of Death Penalty Focus, an organization that is supporting the initiative to repeal the death penalty. (click graphic to enlarge).

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