Arbitrariness

LAW REVIEW: "The American Death Penalty and the (In)Visibility of Race"

In a new article for the University of Chicago Law Review, Professors Carol S. Steiker (left) of the University of Texas School of Law and Jordan M. Steiker (right) of Harvard Law School examine the racial history of the American death penalty and what they describe as the U.S. Supreme Court's "deafening silence" on the subject of race and capital punishment. They assert that the story of the death penalty "cannot be told without detailed attention to race."  The Steikers' article recounts the role of race in the death penalty since the early days of the United States, including the vastly disproportionate use of capital punishment against free and enslaved blacks in the antebellum South and describes the racial and civil rights context in which the constitutional challenges to the death penalty in the 1960s and 1970s were pursued. The authors contrast the "salience of race" in American capital punishment law and practice through the civil rights era with the "relative invisibility [of race] in the judicial opinions issued in the foundational cases of the modern era."

States Struggle with Determinations of Competency to Be Executed

A recent article in Mother Jones examines lingering questions in the determination of which inmates are exempt from execution because of mental incompetency. In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that a person could not be executed if he or she was "unaware of the punishment they're about to suffer and why they are to suffer it." The 2007 ruling in Panetti v. Quarterman updated that decision, with Justice Anthony Kennedy writing, "A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." Scott Panetti (pictured), the inmate involved in the 2007 case, knew that the state of Texas planned to execute him for the murder of his in-laws, but also sincerely believed that he was at the center of a struggle between God and Satan and was being executed to stop him from preaching the Gospel. Even after the case with his name was decided, Panetti remained on death row, and the Texas courts found him competent to be executed based upon the testimony of a single psychiatrist who claimed Panetti was faking his mental illness. Panetti came within hours of execution on December 3, 2014, before the U.S. Court of Appeals for the 5th Circuit issued a stay. In Missouri, Cecil Clayton -- a brain-damaged man with an IQ of 71 -- was executed on March 17, 2015 without a hearing to determine his competency. By contrast, a recent mental competency hearing for Indiana inmate Michael Overstreet included four days of testimony from 13 witnesses and nearly 1,300 pages of medical records. In a 137-page opinion, the state judge concluded, "Delusions or other psychotic symptoms cannot simply be discounted because a petitioner has a cognitive awareness of his circumstances." Indiana's Attorney General said that the decision adhered so well to the Panetti ruling that there was nothing for the state to appeal.

STUDIES: Most Likely Outcome of Death Sentence Is That It Will Be Reversed

A new study from researchers at the University of North Carolina at Chapel Hill finds that the most likely outcome for a capital case once a death sentence has been imposed is that the defendant's conviction or sentence will be reversed on appeal. Execution is only the third most likely outcome. Of the 8,466 people sentenced to death from 1976-2013, 3,194 (38%) had their sentence or conviction overturned. 2,979 (35%) remained on death row at the time of the study. Fewer than 1 in 6 defendants - 1,359 (16%) - were executed. The rest died on death row of suicide or natural causes, had their sentence commuted, or were removed from death row for miscellaneous reasons. The study also notes that these rates vary dramatically from state to state, with states averaging about a 13% likelihood of executing a death sentence, and only one state - Virginia - executing more than half of those sentenced to death. "Regardless of one’s view of the death penalty in principle, these numbers raise questions about how the death penalty is applied in practice," the authors note. "The wide differences across states in the odds of carrying out a death sentence are potentially troubling from an equal protection standpoint." They conclude, "A system that ensures prolonged court time, automatic appeals for the convicted inmate – most of whom are eventually successful – and only a small chance of actual execution is a system built on false promises for everyone, and indeed one that seems to verge on torture." (Click image to enlarge)

Ohio Officials Say Death Penalty System Has Serious Flaws

Legislators in Ohio are seeking to enact death penalty reforms as the state grapples with problems in the application of capital punishment. Sen. Bill Seitz, a Republican, and Sen. Sandra Williams, a Democrat, are working on four bills to address some of the reforms recommended by the Ohio Supreme Court Death Penalty Task Force last year. The bills would prevent the execution of defendants with serious mental impairments, establish a fund for indigent defense, require certification of crime labs and coroners, and prohibit convictions where the only evidence is testimony from a jailhouse informant. Since 2003, Ohio has removed 20 inmates from death row through exonerations, clemency, or sentence reductions because of intellectual disabilities. An additional 5 men who had once been on death row, but had their sentences reduced when capital punishment was struck down in the 1970s, were also exonerated and released. Ohio's executions are currently on hold until at least 2016 because of problems with lethal injection. In recent years, several Ohio officials who once supported capital punishment have spoken out against it. Among them is Paul Pfeifer (pictured), a senior justice on the Ohio Supreme Court and the legislative sponsor of the bill to reinstate Ohio's death penalty in 1981, who now says, "I really think it’s time to shake it up and have life in prison without the possibility of parole, to have that be the ultimate penalty available to juries. It is more of a death lottery instead of something that is evenly applied across the state. The correct thing to do is take it off the books."

Key Witness In Cameron Willingham Trial May Have Testified In Exchange for Reduced Sentence

A previously undisclosed letter written by jailhouse informant Johnny E. Webb, a crucial witness in the trial of Cameron Willingham (pictured) in Texas, indicates that Webb's sentence may have been reduced in exchange for his testimony that Willingham had confessed to intentionally starting a house fire that killed his three daughters.  The defense had never been informed of the existence of any deal between Webb and prosecutors in the case. Willingham was executed in 2004, but he consistently maintained his innocence, and forensic evidence of arson in the case was later discredited. Webb testified that Willingham had confessed to him while they were held in the same jail, but later recanted that testimony. Prosecutor John Jackson is now under investigation by the Texas State Bar for his handling of the Willingham case and the alleged deal with Webb. Webb's 1996 letter to Jackson said, “Recently, as I was going over my case notes, I noticed that you had told me that the charge of aggravated robbery would be dropped, or lowered, to robbery. . . . You told me this would be done before my transfer to TDC [Texas Department of Corrections].” He added that if Jackson did not take care of the change, Webb might file a court motion, possibly making their deal public. In a recent interview, Webb told The Marshall Project, “I did not want to see Willingham go to death row and die for something I damn well knew was a lie and something I didn’t initiate. I lied on the man because I was being forced by John Jackson to do so. I succumbed to pressure when I shouldn’t have. In the end, I was told, ‘You’re either going to get a life sentence or you’re going to testify.’ He coerced me to do it.”

Supreme Court to Review Florida's Death Penalty Scheme

On March 9, the U.S. Supreme Court agreed to hear Hurst v. Florida, a challenge to the state's unusual sentencing procedure. In a prior ruling, Ring v. Arizona (2002), the Court held that the question of whether a defendant is eligible for the death penalty is entitled to a jury deteremination. Unlike almost every other state where unanimous juries are required for death eligibility and a death sentence, Florida only requires the jury to make a sentencing recommendation to the judge, who then makes the final decision on the existence of aggravating factors and the actual sentence. Timothy Hurst was sentenced to death by a judge, following a 7-5 recommendation for death by the jury. The jury's recommendation did not make clear which aggravating factors made him eligible for the death penalty or whether they found any aggravating factor beyond a reasonable doubt. The Supreme Court's decision in Hurst v. Florida could affect pending cases and other inmates on the state's death row.

Interested Parties Weigh in on Constitutionality of California's Death Penalty

On March 6, several stakeholders in California's death penalty system filed supportive briefs urging the U.S. Court of Appeals for the Ninth Circuit to uphold a District Court ruling that the state's death penalty is unconstitutional. The 9th Circuit is considering the state's appeal in the case of Ernest Jones, whose death sentence was overturned by Judge Cormac Carney (pictured). In an amicus brief on behalf of Jones, Bethany Webb, whose sister was murdered in 2011, said, "California's death penalty is a charade. My sister’s killer is going to die of old age before an execution will ever be carried out. The death penalty retraumatizes families like mine and forces them to endure a decades-long cycle of waiting, court hearings, and uncertainty. It is cruel to continue propping up a system that encourages victims’ families to wait decades for an execution that may never come." State legislators and legal scholars also filed briefs in the case. Senator Mark Leno, joined by other state legislators, wrote, "The facts are overwhelmingly clear: California’s death penalty system is broken and clearly there’s no political will to try to address the many flaws that plague the system. The death penalty is exorbitantly costly, arbitrarily applied, and serves no legitimate purpose whatsoever in its current condition. The only reasonable solution is to replace the death penalty with life in prison without the possibility of parole."

Georgia Board Denies Clemency for Sole Woman on Death Row

UPDATE: Gissendaner's execution has been rescheduled to Monday, March 2, due to a winter storm forecast to hit Georgia. Previously: On February 25 the Georgia Board of Pardons and Paroles denied clemency to Kelly Gissendaner, the only woman on the state's death row. Gissendaner was convicted of orchestrating the murder of her husband, but did not carry out the killing herself. At Gissendaner's clemency hearing, 21 people testified in favor of a reduction in sentence, including two of Gissendaner's children, several prison volunteers, and members of the clergy. Gissendaner's daughter, Kayla, said, "My father’s death was extremely painful for many people, but I’ve recently concluded that in many ways I was the person who was most impacted by his murder. The impact of losing my mother would be devastating. I can’t fathom losing another parent.” The man who committed the murder pleaded guilty in exchange for a life sentence. Gissendaner's attorney advised her not to take the same deal, saying that he thought a jury would not sentence her to death, "because she was a woman and because she did not actually kill Doug." Unless an appeals court halts the execution, Gissendaner will be the first woman executed in Georgia in 70 years.

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