Spate of Scheduled Executions Highlight Broad Issues in Capital Punishment

An unusually high number of executions are scheduled for late September and early October - five states intend to carry out six executions in nine days. Pieces in the Los Angeles Times and the Washington Post describe the larger issues raised by the cases in this "burst of lethal activity." In the Los Angeles Times, Scott Martelle examined the three executions scheduled for consecutive days in Georgia, Oklahoma, and Virginia, concluding, "So here we have three pending executions: One of a woman who received a harsher penalty than the co-conspirator who committed the murder; one of a man who very possibly is innocent; and one of a man whose intellectual disability should make him ineligible for the death penalty." Mark Berman, of the Washington Post, noted the overall rarity of executions and the small number of states that carry them out. He says "most states have ... not been active participants in the country's capital punishment system" and "executions remain clustered in a small number of states, a dwindling number of locations accounting for an overwhelming majority of lethal injections." Berman notes that the number of executions, the states executing inmates and the number of death sentences have all fallen significantly since the 1990s and the upcoming executions share one common characteristic: "The states planning the executions this week and next — Georgia, Oklahoma, Virginia, Texas and Missouri — are among the country’s most active death-penalty states since the death penalty was reinstated by the U.S. Supreme Court in 1976." 

Looking Back at the Peak of Texas's Death Sentencing

So far in 2015, no one has been sentenced to death in Texas. The death row population has dropped to 257, down from 460 at its peak in 1999. In that year, Texas sentenced 48 people to death, the most in any year since the death penalty was reinstated. Among the reasons for the decline in death sentences has been the adoption of the alternative sentence of life without parole (adopted in 2005), and a change in the political climate that had led politicians to compete in trying to appear "tough on crime." The Austin American-Statesman recently examined the cases of the 48 defendants sentenced to death in 1999. Harris County (Houston) handed down more of the sentences (11) than any other county, even though the number of murders there had been declining. Of those sentenced to death in 1999, half have been executed. One, Michael Toney, was exonerated in 2009. Two died of natural causes. Six had their sentences reduced when the Supreme Court banned the execution of juveniles in 2005 - all six were 17 at the time of their crimes. The rest remain on death row.

USA Today Chronicles Declining Death Penalty: It "May Be Living on Borrowed Time"

In a sweeping look at the current state of the U.S. death penalty, USA Today reporters Richard Wolf and Kevin Johnson highlight several recent story lines that collectively illustrate a dramatic decline in the country's use of capital punishment. Their conclusion: "The death penalty in America may be living on borrowed time." Wolf and Johnson recount recent cases in which high-profile crimes resulted in a life without parole sentence, in many instances because victims' families raised concerns about the painful emotional impact of a lengthy appeals process. Skeet Glover, whose father and stepmother were killed in Texas, explained his family's support for a plea deal resulting in a life without parole sentence: "As a family, we were going to do this together. I couldn't help my dad anymore. I couldn't help (stepmother) Peggy ... and I didn't want to punish anyone else in the family...There are no regrets." The article also tells the stories of death row exonerees, including the seven men exonerated in the last two years after spending 30 years or more on death row, and persistent questions of innocence for inmates still facing execution. The story then turns to ongoing battles in courts and legislatures. It chronicles the difficulties surrounding lethal injection, from trade regulations and opposition from the medical community that has made it more difficult for states to obtain execution drugs to legal challenges against execution protocols. Legislative action has shown "a clear trend in favor of retreat or repeal," the article states, noting the seven states that have recently repealed capital punishment, and the four states where moratoriums are in place. (Click image to enlarge.)

Former Judge: Pennsylvania Moratorium is "Appropriate" and "Reasonable"

Robert Cindrich, a former U.S. District Judge and U.S. Attorney for the Western District of Pennsylvania, recently wrote an op-ed for the Harrisburg Patriot-News calling Governor Tom Wolf's moratorium on executions in Pennsylvania "appropriate" and "reasonable." Expressing concerns about "multiple, serious problems with the death penalty" in Pennsylvania, Judge Cindrich says Governor Wolf "was absolutely correct" that no executions should take place until the Pennsylvania Advisory Committee and Task Force on Capital Punishment completes its study of the state's death penalty and makes recommendations for reform. In particular, Cindrich is "highly concerned about the fairness of [Pennsylvania's] capital punishment system." He points to "the reversals of most death sentences, the poor compensation of public defenders in capital cases, and the racial bias in Pennsylvania's imposition of death sentences" as areas all "in dire need of improvement." More than half of the 400 death sentences imposed in Pennsylvania have been reversed "due to serious flaws or misconduct at trial," he says, which indicates "that far too many individuals received unfair and unwarranted sentences of death."

Federal Judge: Delaware Execution "Highlights Profound Failings in Our Judicial Process"

U.S. District Court Judge Gregory M. Sleet has criticized the lack of judicial review provided by the state and federal courts prior to Delaware's 2012 execution of Shannon Johnson, saying Johnson's execution "highlights profound failings in our judicial process." In an article in the American Bar Association's Criminal Justice magazine, Judge Sleet - who was Chief Judge at the time of the case - called "[t]he Johnson case, and its result, ... by far the most troubling I have encountered." Johnson confessed to the crime and sought execution by waiving his appeals. Johnson's state court lawyer then advocated in support of his wish to be executed and opposed efforts by lawyers for Johnson's relatives to obtain review of his mental state. Questions about Johnson's mental competence and the state's process for determining competence were never reviewed by any court. Sleet stayed the execution twice, expressing concerns about flaws in the state competency proceedings, but the stays were lifted by the federal Court of Appeals for the Third Circuit. "[T]he case was and remains disturbing to me because, in the unnecessary haste to execute Johnson before his execution certificate expired — a haste arguably exacerbated by the State and the Third Circuit – I believe that the judiciary's fundamental role of ensuring due process, as realized through an adversarial process, was sacrificed or, at the very least, undermined," Sleet wrote. Sleet argued that Johnson's case illustrates larger problems in the death penalty system. "[I]f one of the goals of our adversarial process is, as I believe it to be, to 'preserve the integrity of society itself,' we must face the fact that, in so far as the administration of the death penalty is concerned, the process is broken," he said.

ANALYSIS: Do Recent Connecticut and U.S. Supreme Court Decisions Portend Downfall of Capital Punishment?

In an op-ed for The New York Times, Pulitzer Prize winning legal commentator Linda Greenhouse analyzes the significance of and interplay between the recent Connecticut Supreme Court decision striking down the state's death penalty and Justice Stephen Breyer's dissent in the U.S. Supreme Court case Glossip v. Gross. "[T]he Connecticut Supreme Court not only produced an important decision for its own jurisdiction; but it addressed the United States Supreme Court frankly and directly," Greenhouse says. "The decision engages the Supreme Court at a crucial moment of mounting unease, within the court and outside it, with the death penalty’s trajectory over the nearly four decades since the court permitted states to resume executions." As posed by the Connecticut court, the question is whether the broad discretion afforded to prosecutors and juries over whether to seek or impose the death penalty "inevitably allows in through the back door the same sorts of caprice and freakishness that the court sought to exclude" when it held U.S. death penalty statutes unconstitutional in 1972, "or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing." Justice Breyer's dissent similarly observed, “In this world, or at least in this nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both.”  Greenhouse concludes, "[F]rom two courts, the highest in the land and the highest court of one of the smallest states, a fruitful conversation emerged this summer that will inevitably spread, gain momentum and, in the foreseeable if not immediate future, lead the Supreme Court to take the step that I think a majority of today’s justices know is the right one."

Ninth Circuit Hears Arguments on Constitutionality of California Death Penalty

 On August 31, the U.S. Court of Appeals for the Ninth Circuit heard argument in Jones v. Davis, an appeal by California of the 2014 U.S. District Court ruling that declared California's death penalty unconstitutional. In 2014, U.S. District Court Judge Cormac Carney held that the decades-long delays caused by California's failure to provide lawyers for nearly 350 of its death-row prisoners made its death penalty system unconstitutionally cruel and unusual. He said that the “random few” whom California eventually executes - to date, just 13 out of more than 900 individuals sentenced to death - “will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.” Lawyer Michael Laurence (pictured, left), representing death row inmate Ernest Dewayne Jones, called the state's death penalty system "dysfunctional." He argued that California's death penalty produces the same type of arbitrary outcomes that led the Supreme Court to invalidate death penalty statutes nationwide in 1972 in the landmark case of Furman v. Georgia. Lawyers from the California Attorney General's Office argued that the delays in this case are different from the issues presented to the Court in Furman and that the lengthy appeals process is evidence of careful efforts to protect the constitutional rights of people who have been sentenced to death. The Ninth Circuit must decide whether to address the substance of Jones' claim or sidestep the issue on procedural grounds. If it upholds Judge Carney's ruling, the sentences of more than 700 people on California's death row could be overturned and replaced with sentences of life without parole.

Federal Court Rejects Duane Buck Racial Bias Appeal

The U.S. Court of Appeals for the Fifth Circuit rejected an appeal in the case of Texas death row inmate Duane Buck, who argued that his trial was tainted by ineffective representation and racial bias when Buck’s own mental health expert testified that he could be a future danger to society because he is black. Dr. Walter Quijano, a clinical psychologist, testified in the sentencing phase of Buck's case on the issue of future dangerousness. The prosecutor asked Quijano, "You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and the race factor, black, increases the future dangerousness for various complicated reasons, is that correct?" Quijano answered, "Yes." Buck, who is black, was sentenced to death. Buck's case was one of six capital cases identified in 2000 as tainted by Quijano's testimony. The other five have had new sentencing hearings, but Buck has not. Buck presented 11 arguments in his appeal, but the court said, "Jurists of reason would not debate that Buck has failed to show extraordinary circumstances justifying relief." Attorneys for Buck said, "This decision can only deepen the growing skepticism of the fairness of the criminal justice system. No competent capital defense attorney would invite the sentencing jury to make a life-or-death decision based on racial fears and stereotypes and no court should enforce a judgment in which race was explicitly proffered as the basis for a death sentence."