Arbitrariness

Texas Inmate Held for Over 30 Years With No Conviction May Be Retried

A retrial date of Sept. 22 has been set for Jerry Hartfield, who has been held without a valid conviction in Texas for over 30 years. Hartfield was convicted of murder in 1977 and sentenced to death. His conviction was overturned in 1980 due to an improperly selected jury, and the appeals court ordered a new trial, but that was never held. Gov. Mark White attempted to commute his sentence in 1983, but without a conviction, the commutation was invalid. In 2013, the Texas Court of Criminal Appeals ruled that "The status of the judgment of conviction is that Petitioner is under no conviction or sentence." A federal court called Texas's defense of Hartfield's unlawful incarceration "disturbingly unprofessional." The new trial judge scheduled a July 2 hearing to consider a request from prosecutors to conduct psychological testing on Hartfield, who is described in court documents as "an illiterate fifth-grade dropout with an IQ of 51." The Matagorda County District Attorney has offered Hartfield a deal to plead guilty, accept a life prison term and avoid a potential death sentence if he waives all rights to future appeals. Hartfield's lawyers assert that his right to a speedy trial has been violated.

A Turn-Around in Texas's Use of Death Penalty

A recent op-ed by Jordan Steiker, endowed professor of law and Director of the Capital Punishment Center at the University of Texas, highlighted the declining use of the death penalty in that state. AlthoughTexas leads the nation in executions, death sentences and executions per year have dropped sharply since the 1990s. Prof. Steiker wrote, "In 1999, Texas juries returned an astounding 48 death sentences. Since 2008, however, Texas has annually sent fewer than 10 defendants to death row.  Executions in Texas have declined as well, from a high of 40 in 2000 to fewer than 20 since 2010." While describing the "perfect storm" of conditions that led to Texas's high use of capital punishment in the past, the op-ed also noted changes that have led to less death-penalty use, such as the creation of a statewide defender's office to represent death-sentenced inmates in state post-conviction and the broader disclosure of evidence to the accused. Prosecutors have increasingly accepted plea agreements to life imprisonment without possibility of parole, saving taxpayer dollars that would have been spent on expensive capital trials and appeals.

Number of States Carrying Out Executions Declining

State Executions Graph
Click to enlarge

Despite the 3 executions carried out on June 17 and 18, executions and death sentences in the U.S. have steadily declined since the 1990s. Moreover, the number of states carrying out executions has also dropped to a small minority (see chart). Since executions peaked in 1999, the number of states carrying out at least one execution in a year has fallen by over 50%. In 1999, 20 states carried out executions. In 2012 and 2013, just 9 states did so. As of June 20, 2014, only 6 of the 32 states that have the death penalty have had an execution. More than half of the states in the country (30) have not carried out an execution in the past 5 years. Twenty-one (21) states have either abolished the death penalty or declared an official moratorium on executions, with six states ending the death penalty in the last six years. The growing geographical isolation of the death penalty is also evident on a county level. A majority of executions since 1976 and a majority of all those on death row each came from just 2% of U.S. counties; 85% of counties have not had a single case result in an execution since 1976.

ARBITRARINESS: Almost All Recently Executed Inmates Possessed Qualities Similar to Those Spared

Some defendants who commit murder are automatically excluded from the death penalty in the U.S., such as juveniles and the intellectually disabled. Others with similar deficits are regularly executed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson examined the mitigating evidence present in 100 recent cases resulting in execution, testing whether the offenders possessed qualities similar to those spared from execution. The authors found that "Nearly nine of every ten executed offenders possessed an intellectual impairment, had not yet reached their twenty-first birthday, suffered from a severe mental illness, or endured marked childhood trauma." In particular, "One-third of the last hundred executed offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury;" "More than one-third of executed offenders committed a capital crime before turning twenty-five—the age at which the brain fully matures;" and "Over half of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness."

Missouri Juror Describes Pressure to Vote for Death

UPDATE: Winfield's execution was stayed on June 12 because of state interference with the clemency process. EARLIER: John Winfield is scheduled to be executed in Missouri on June 18 despite an affidavit submitted by one of the jurors at his trial stating she was pressured to switch her sentencing vote from life in prison to death. Kimberly Turner, who served on Winfield's jury in 1998, recently described the jury's initial deliberations: "Another juror and I had voted for life without the possibility of parole. That was my vote. In my heart, that has always been my vote." In Missouri, a jury recommendation for death must be unanimous; if just one juror votes for a life sentence, the defendant is sentenced to life. When the jury told the court they were unable to reach a unanimous sentencing verdict, they were told to continue deliberating. "Even though I had voted for life without parole," Turner said, "when an officer of the Court told me to keep deliberating, I thought that I had to. It was Friday afternoon and the other jurors were tired of being sequestered and wanted to go home. They were pressuring me and the other life vote to change our votes to death...As the afternoon went on, the other jurors wore me down. I had not wanted to keep deliberating, but after the order to continue, I did not know how long I was supposed to keep defending my vote for life...So I changed my vote to death. It is a decision that has haunted me."

EDITORIALS: Connecticut's The Day Calls for Retroactive Death Penalty Repeal

When Connecticut abolished the death penalty in 2012, it did so prospectively, leaving its death row population in place. Now, Connecticut newpaper The Day is calling on the state to "have the courage and consistency to outlaw government sanctioned killing in all instances." The editorial first highlights the paper's longstanding opposition to capital punishment, saying "It remains our position that a state-sponsored execution disproportionately targets minorities, has no deterrent value, cannot be undone if there is a mistake and is a barbaric act that lowers the state to the level of the killer." It then draws on recent events to point out the practical problems with Connecticut's execution method, lethal injection. "The Department of Correction has confirmed it has none of these drugs and no way to obtain them because many domestic and foreign drugmakers, including those in the 28-nation European Union, have objected to using their products in executions." The editorial closes by mentioning the ongoing court case challenging the consitutionality of Connecticut's current death penalty law, saying "The likelihood is that none of the 12 [men on death row] will ever be executed and some court, state or federal, will find, as Michael Courtney, the state's head of the Office of Public Defender, has said, "there is nothing more arbitrary and capricious" than the present situation in which a person committing a capital felony on April 24, 2012, the day before Connecticut abolished capital punishment, can be executed while the person committing the exact same crime the next day cannot." Read the full editorial below.

Blue Ribbon Panel Recommends Extensive Changes to Death Penalty

On May 7, the Constitution Project released a new report, Irreversible Error, calling for reforms in many aspects of the death penalty system. The Project's Death Penalty Committee, which consists of renowned experts on capital punishment, made suggestions for reducing the risk of executing the innocent and improving the fairness of capital cases from arrest and interrogation, through prosecution and appeals, to the execution procedure itself. "Without substantial revisions -- not only to lethal injection, but across the board -- the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said committee member Mark Earley, a Republican and former Attorney General of Virginia. Among the 39 recommendations in the report were increased access and improved standards for forensic testing, videotaping of interrogations in homicide investigations, and exemptions for the severely mentally ill. In capital sentencing, the report recommended requiring a unanimous jury vote for death before a death sentence could be imposed. Virginia Sloan, President of the Constitution Project, said, "Some of the members of the Committee believe that the range of punishments may include death; others do not. But they all agree that no one should be denied basic constitutional protections, including a competent lawyer, a fair trial and full judicial review of any conviction and sentence. The denial of such protections heightens the danger of wrongful conviction and sentencing."

President Obama Orders Review of Death Penalty

President Obama has ordered Attorney General Eric Holder to review the application of the death penalty in the U.S. following the failed execution of Clayton Lockett in Oklahoma on April 29. The President noted concerns about innocence and racial bias: “In the application of the death penalty in this country, we have seen significant problems — racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence. And all these, I think, do raise significant questions about how the death penalty is being applied.” The Department of Justice was already reviewing federal execution protocols. Brian Fallon, a spokesman for the Justice Department, said, “At the president’s direction, the department will expand this review to include a survey of state-level protocols and related policy issues.” The President called the events in Oklahoma, in which the inmate regained consciousness and apprarently suffered before dying of a heart attack, "deeply disturbing."

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