Recent Legislative Activity

RACE: Research Experts Say Racial Bias Still Exists in Death Penalty

Renowned researchers David Baldus, Professor of Law at the University of Iowa, and George Woodworth, a fellow of the American Statistical Association, recently wrote about the ongoing problem of racial disparities in capital cases.  Professors Baldus and Woodworth were responsible for the acclaimed study on race and the death penalty in Georgia that was brought before the U.S. Supreme Court in 1987 in McCleskey v. Kemp.  In response to claims that North Carolina does not need to pass the Racial Justice Act, the researchers pointed to "several studies, including one done at UNC-Chapel Hill several years ago, that found that a defendant's odds of getting the death penalty in North Carolina increased by 3.5 times if the victim is white."  They wrote further: "Our published review of all studies completed up to 2003 reaches the same conclusion. No one who has read the research literature could claim that white-victim cases more frequently result in death sentences because they are more heinous and aggravated than black-victim cases. Studies that provide the strongest evidence that those who murder whites are substantially more likely to receive death sentences than those who murder blacks use well-accepted statistical tools to filter out the effects of these various non-racial factors."  Their entire op-ed may be read below:

RECENT LEGISLATION: Texas to Open First Capital Defense Office for Death Penalty Appeals

Following recently passed legislation, Texas will open an office with nine attorneys to manage post-conviction appeals in death penalty cases.  In the past, appointed attorneys sometimes missed filing deadlines or filed inadequate briefs, thereby jeopardizing their clients' cases.  The Office of Capital Writs will be funded by redirecting money already in the state budget: $500,000 formerly used to pay private attorneys for appeals and $494,520 from the state's Fair Defense account.  The office will oversee the part of the appeals process known as state habeas corpus where constitutional issues outside the trial can be raised.  This important phase can address issues such as new evidence of innocence, prosecutorial misconduct, and inadequate representation.  Eventually, this office will handle most state habeas appeals, which currently number about 10 a year.  "I think that everyone agrees (death row inmates) deserve one fair shot at presenting their issues," said Andrea Marsh, executive director of the Texas Fair Defense Project. "We saw too many cases where poor state habeas representation forced people to lose appeals."

Senator Kennedy Raises Concerns About Expansion of Federal Death Penalty

In response to an amendment to the Matthew Shepard Hate Crimes Prevention Act that would add the death penalty as a punishment for certain offenses under the Act, Senator Edward Kennedy (MA) entered a statement into the Congressional Record highlighting some of the risks of the death penalty.  An excerpt of his statement appears below:

Mr. KENNEDY. Mr. President, Senator SESSIONS has introduced an amendment that would create two new death penalty eligible offenses for crimes under the Matthew Shepard Act. I stand firmly in opposition to any new legislation that would radically expand the use of the death penalty, and I urge my colleagues in the Senate to oppose the Sessions amendment because it adds another new death penalty to the Federal Criminal Code. Since the reinstatement of the death penalty in the 1970s, the Death Penalty Information Center has reported that 135 people have been released from death row in the United States because of innocence—approximately one exoneration for every nine executions.

Racial Justice Act Passed In North Carolina House and Senate

On July 15, the House of Representatives of North Carolina voted 61-53 to pass the Racial Justice Act. A similar bill already passed the state senate, though that bill contained an amendment to bypass some objections to the state's execution process.  The new law, if finally approved, would allow judges to consider whether racial bias played a role in the decision to seek or impose the death penalty.  "This is a fairness bill," said Rep. Larry Womble, the Forsyth Democrat who helped champion the bill. "If we're going to kill people, we must be as fair and objective as we can. This allows one more chance for justice to be blind. ... It's not a get-out-of-jail free card for anybody."




Ohio's New Lethal Injection Procedures Include 'Pinching Inmate' to Test for Consciousness

The first execution under Ohio’s new lethal injection procedure was conducted on June 3.  Questions about the effectiveness of the first of the three drugs used, as well as recent botched executions, have brought Ohio’s procedures under scrutiny. The new procedures include a procedure for the warden to pinch the inmate to make sure the first drug works before administering the second, which has been described as excrutiatingly painful . "The warden will call their name, shake their shoulder a bit and give the upper arm a pinch just to see if he responds," explained Chief Legal Counsel for the Department of Rehabilitation and Correction, Greg Trout. "An unconscious person shouldn't respond. If there is no response, we assume the offender is unconscious." Prior to the procedure update, prison officials had trouble inserting shunts to carry the drugs during the execution of two inmates, Christopher Newton in 2007 and Joseph Clark in 2006. Newton’s procedure lasted so long he was given a break to use the restroom; Clark cried out during his execution that the injection “isn’t working.”  Ohio defense lawyer Jeffrey Gamso doubts the effectiveness of the new rules. "They are still using three drugs. There is no reason to use three drugs," said Gamso, the former legal director for the Ohio American Civil Liberties Union. "Here is what we know about three drugs: two of them serve no purpose in getting the guy dead ... Our expert and the state's expert have said using three drugs increases the risk of causing excruciating pain. So this new policy, it's nibbling around the edges."

Alabama's New Law Providing DNA Testing Has Limitations

Alabama has adopted new legislation that allows some inmates to obtain DNA testing on old evidence.  However, critics have pointed out important limitations in the new law.  The new procedure is limited to inmates who were convicted of capital crimes, including those on death row.  The Department of Forensic Sciences requested this limitation because they believed they did not have the resources to handle a larger class of cases.  Even those convicted of a capital crime face further hurdles.  For example, the law requires petitioners to show that the identity of the guilty party was “at issue in the trial that resulted in the conviction.”  In cases where a confession existed or the inmate pled guilty, DNA testing could be denied. DNA technology has cleared people in those circumstances before, yet this law precludes testing in such cases.  Some see the legislation as at least a beginning in a state that was one of the very last in the country to adopt a law to provide after-the-fact DNA testing in criminal cases.

Nebraska Governor Signs Bill Changing Method of Execution to Lethal Injection

On May 28, Nebraska’s Governor Dave Heineman signed a bill changing the state’s method of execution from electrocution to lethal injection.  Nebraska had been without a legal method of execution since February 2008 when the state’s Supreme Court found the electric chair unconstitutional.  Before executions in the state can resume, Nebraska still needs to develop procedures for lethal injections and the new law will be tested in court.  Nebraska was the last state to have the electric chair as its sole means of execution. 

NEW VOICES: 3 Connecticut Senators Change Opinion on Death Penalty

The recent 19-17 vote in the Connecticut Senate to abolish the death penalty was made possible by three senators who moved from supporting the death penalty to opposing it.  Sen. Gary LeBeau had long favored the death penalty, partly because of "political calculations."  His stance shifted in the last couple of years witnessing a series of high-profile exonerations of innocent people.  At 61, LeBeau, a retired schoolteacher, came to view life as a gift, one "we shouldn't take away from anybody ... in the name of the people of Connecticut. It's not our right to take away a person's life.''  Joining LeBeau’s change of heart were Senators Andrea Stillman and Edith Prague.  Prague said, "I always believed if someone was so cruel to take someone else's life ... they deserve it.  Then along came Mr. Tillman,'' Prague said, referring to James Tillman, an innocent man who served 18 years for a crime before he was exonerated on the basis of new DNA evidence. "I know that the mistake made [was] horrendous,'' she said.  "My sense is that the justice system makes mistakes.''  Sen. Stillman had first voted in support of the death penalty in 1995, but now says, “The world was different then,” and believes her own gradual shift in opinion mirrors that of her constituents.  Connecticut’s House voted 90-56 to abolish capital punishment as well, but Governor Jodi Rell has indicated she will veto the bill.