Arbitrariness

STUDIES: Use of Death Penalty Declining in Ohio

Two recent reports released in Ohio show a decline in the use of the death penalty, with one of the reports raising concerns about the fairness of the system. The number of death-penalty cases filed in Ohio in 2013 was the lowest number in over 30 years. The number of capital indictments was down 28% from 2012 and 63% from 2011, according to a report from Ohioans to Stop Executions, "The Death Lottery: How Race and Geography Determine Who Goes to Ohio's Death Row." Ohio had 4 death sentences in 2013, compared to 24 in 1985. The report noted concerns about arbitrary application of the death penalty, even as the number of cases decreased: "While Ohio’s overall use of the death penalty is slowing, it has become clearer ... that the race of the victim and location of the crime are the most accurate predictors of death sentences," the report stated. Almost 40% of all capital indictments in Ohio come from just one county (Cuyahoga), which represents just 11% of the state's population. Nearly 77% of the executions in the state involved cases where the murder victim was white, despite the fact that generally 66% of murder victims in Ohio are people of color. A report from Ohio's Attorney General Office, "Capital Crimes Annual Report," indicated that 52 inmates have been executed since 1981, while 126 death-row inmates had their sentences reduced or died of natural causes.

Instead of an Execution, Mississippi Supreme Court Throws Out the Conviction

In a case in which the state's Attorney General had asked for an execution date of March 27, the Mississippi Supreme Court instead threw out Michelle Byrom's murder conviction and death sentence and ordered a new trial just four days later. The case was plagued with numerous problems, including inadequate representation, critical evidence not presented to the jury, confessions by another defendant, and the prosecution's lack of confidence in its own story of what actually happened. In its order reversing the conviction, the court described Byrom's case as "extraordinary and extremely rare." Prosecutors said that Byrom hired a friend of her son's to murder her husband, despite several confessions from her son, who said he killed his father because he snapped from years of abuse. The jury that convicted Michelle Byrom never heard evidence from a forensic psychologist who had told the judge that Byrom's son had confessed to the murder, nor were they presented with two letters from Byrom's son describing why he murdered his father. Byrom's son and his friend pled guilty to conspiracy in the crime and are now free after serving time in prison. David Voisin, an attorney advising Byrom's legal team, said, "We are grateful to the Mississippi Supreme Court in recognizing the extreme injustice in this case and taking the swift and extraordinary step of vacating Michelle Byrom's conviction so that she can have a fair opportunity to have her case heard in court."

NEW VOICES: Former New Hampshire Justices Support Death Penalty Repeal

Two former justices of the New Hampshire Supreme Court recently voiced their support for repealing the death penalty. In an op-ed, Joseph Nadeau (l.) and John Broderick (r.) emphasized the death penalty's lack of deterrent effect, saying, "New Hampshire has not executed anyone for three quarters of a century. Yet, it registered the second lowest murder rate in the nation every year of this century." Murder rates were higher in heavy-use death penalty states, they noted. The former justices said the decision to seek the death penalty is often "random" and "easily influenced by public opinion, political pressure and media attention." They justices said the sentence of life without parole is an appropriate alternative, protecting society and punishing the offender. They concluded: "Abolishing the death penalty will not compromise public safety, but it may replace rage with reason, retribution with self-respect, and enrich the character of our people as a whole." Read the op-ed below.

EDITORIALS: Mississippi Paper Calls Pending Execution "Gravely Inhumane"

A recent editorial in the Jackson Free Press in Mississippi called for a halt to the scheduled execution of Michelle Byrom, saying she is "clearly not guilty of the crime for which the state plans to execute her next week." The editorial noted that Byrom's son had confessed to the crime four times." He said the story he originally told sheriffs implicating his mother was made up because he was "scared, confused and high" when he was interrogated. The paper pointed to mitigating evidence about Byrom that could have been considered by a sentencing jury: "Byrom suffered a lifetime of abuse that had a jury heard about it could have been sufficiently mitigating for her to receive life imprisonment rather than death for the capital offense of murder-for-hire." The editors concluded: "It would be gravely inhumane to execute a woman as mentally and physically ill as Michelle Byrom—and a frightening contrast to all the brutal woman-killers that previous Gov. Haley Barbour pardoned....To execute Michelle Byrom for a crime that she did not commit would be one of the worst miscarriages of justices in modern Mississippi history. This execution must not happen." Read the full editorial below.

Doubts of Culpability Surround Upcoming Execution in Mississippi

Michelle Byrom is scheduled to be executed in Mississippi on March 27 for conspiring to murder her husband, Edward Byrom, Sr. Her son, Edward Byrom, Jr., known as Junior, confessed to the crime on multiple occasions, and wrote that he lied when he told police his mother and a friend were involved. "I was so scared, confused, and high, I just started spitting the first thought out, which turned in to this big conspiracy thing, for money, which was all BS, that's why I had so many different stories," he wrote. Junior testified against his mother in exchange for a reduced sentence and is now out of prison. Michelle Byrom was abused by her stepfather, ran away from home at age 15, and moved in with Edward, Sr., that same year, when he was 31. He verbally and physically abused her and threatened violence if she tried to leave. A forensic psychiatrist diagnosed Michelle with borderline personality disorder, depression, alcoholism, and Münchausen syndrome, saying the disorders were consistent with abuse. She was interrogated while in the hospital under the influence of 12 different medications, and only confessed when the Sheriff told her about her son's confession and encouraged her not to let her son "take the rap." Her trial attorneys, trying their first capital case, waived her right to have a jury decide her sentence, believing that would give them grounds for an appeal. They did not present evidence of her mental illnesses, thinking that evidence would be better saved for the appeal. The Mississippi Supreme Court upheld her conviction and sentence (5-3), with Justice Jess Dickinson writing in dissent, "I have attempted to conjure up in my imagination a more egregious case of ineffective assistance of counsel during the sentencing phase of a capital case. I cannot." UPDATE: Read Andrew Cohen's piece about this case The Atlantic.

Furman v. Georgia Reenactment Raises Questions of Arbitrariness

The Georgia State Bar's constitutional symposium recently staged a reenactment of Furman v. Georgia, the U.S. Supreme Court case that led to the temporary suspension of the death penalty in 1972. Stephen Bright (pictured), president of the Southern Center for Human Rights, played the role of Anthony Amsterdam, who argued on behalf of death row inmates in two of the four cases that the Court decided in Furman. The roles of the justices were performed by Georgia Supreme Court Chief Justice Hugh Thompson, Georgia Court of Appeals Chief Judge Herbert Phipps and Judge Beverly Martin of the U.S. Court of Appeals for the Eleventh Circuit. Bright argued that the death penalty violated the Eighth Amendment ban on cruel and unusual punishment because it was applied rarely and randomly. The judges asked about many of the details of Furman's trial, noting that the entire trial took just six hours, and that blacks and Jews were excluded from the jury. The judges in the reenactment did not offer their opinions on the case, but the real Furman v. Georgia resulted in a 5-4 decision to suspend the death penalty, with some in the majority saying it was imposed arbitrarily and others saying the death penalty was unconstitutional in all cases.

New Evidence Points to Possible Execution of an Innocent Man

New evidence in the case of Cameron Todd Willingham suggests Texas may have executed an innocent man in 2004. The key evidence presented against Willingham at trial was from an arson "expert," who said the fire that killed Willingham's children was intentionally set. That evidence has since been discredited by a series of other experts who concluded the evidence did not support arson. Now attorneys for the Innocence Project have uncovered a prosecutor's note implying that a jailhouse informant--who testified Willingham admitted to the crime--was given preferential treatment in exchange for his testimony. The note indicated charges against the informant should be reduced "based on coop in Willingham." Prosecutors had explicitly denied that a deal had been made with the witness. Barry Scheck, founder of the Innocence Project, called the new evidence a "smoking pistol," and added, “We’re reaching out to the principals to see if there is an innocent explanation for this. I don’t see one.”

Excerpts from Dissent Regarding Secrecy of Lethal Injection Drugs

In a dissent from a decision by the U.S. Court of Appeals for the Eighth Circuit allowing Missouri's execution of Michael Taylor on February 26, three judges sharply criticized the secrecy of Missouri's lethal injection protocol as a violation of Taylor's right to due process. The dissenters would have stayed the execution to allow Taylor to obtain information about the source of the execution drugs:

  • "Because Taylor seeks to determine whether the drug to be used in his execution will result in pain or in a lingering death, it bears repeating the importance of the identities of the pharmacists, laboratories, and drug suppliers in determining whether Missouri's execution of death row inmates is constitutional."
  • "[F]rom the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."
  • "If through lack of experience or lack of time to do adequate testing, the pharmacy has manufactured something which is quite painful, Taylor's constitutional rights would be violated."
  • "Missouri has a storied history of ignoring death row inmates' constitutional rights to federal review of their executions. I once again fear Missouri elevates the ends over the means in its rush to execute Taylor."

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