Studies

NEW STATEMENTS: The Death Penalty Is Incompatible with Human Dignity

On July 19 Prof. Charles Ogletree of Harvard University Law School wrote in the Washington Post about the future of the death penalty in the U.S. Noting that the U.S. Supreme Court recently affirmed (Hall v. Florida) that executing defendants with intellectual disabilities serves “no legitimate penological purpose,” Prof. Ogletree said this reasoning could be applied to the whole death penalty: "The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows." He cited a study published in the Hastings Law Journal that found that "the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits," such as mental illness, youthful brain development, or abuse during childhood. He concluded that when you examine capital punishment more closely, "what you find is that the practice of the death penalty and the commitment to human dignity are not compatible." Read the op-ed below.

Inspector General's Report Faults FBI Review of Death Penalty Cases

According to a report released on July 16 by the Inspector General's Office of the Department of Justice, the Federal Bureau of Investigation failed to provide timely notice to many capital defendants that their cases were under review for possibly inaccurate testimony by FBI experts. Some of these defendants were executed without being informed of the misleading testimony provided by the government. The report stated: "[T]he FBI did not take sufficient steps to ensure that the capital cases were the Task Force’s top priority. We found that it took the FBI almost 5 years to identify the 64 defendants on death row whose cases involved analyses or testimony by 1 or more of the 13 examiners. The Department did not notify state authorities that convictions of capital defendants could be affected by involvement of any of the 13 criticized examiners. Therefore, state authorities had no basis to consider delaying scheduled executions." At least three defendants were executed before the FBI made it known that their cases were under review. The report recommended retesting of physical evidence for 24 defendants who were executed or died on death row.

STUDIES: Raising the Minimum Age for Death Sentences

The theory of the modern death penalty is that it is to be reserved for the "worst of the worst" offenders. In 2005 the U.S. Supreme Court determined (Roper v. Simmons) that those under age 18 at the time of their crime were less culpable than older defendants and should be excluded from the possibility of execution. However, a recent paper by Hollis Whitson (l.) argued that scientific research on older adolescents implied that the Court's analysis should also apply to those under 21. Whitson cited neuroscience research showing, "that older adolescents (including 18-20 year-olds) differ from adults in ways that both diminish their culpability and impair the reliability of the sentencing process." Moreover, youths under 21 are treated as minors by numerous state and federal statutes, including liquor laws, inheritance laws, and eligibility for commercial drivers' licenses. Another problem highlighted in the paper is that minority youth suffer from the application of this punishment more than white youths. From 2000 to 2014, 60% of those executed for crimes committed by 18-20 year-olds were racial minorities, while only 40% were white. For defendants aged 21 and older, the reverse was true: 40% of those executed were minorities, while 60% were white.

Media Investigation Finds Serious Flaws in Oklahoma Execution Procedure

The Tulsa World of Oklahoma recently conducted an investigation into the state's execution protocol in the wake of the botched execution of Clayton Lockett in April. Comparing Oklahoma's protocol to those of 19 other states, the study found that Oklahoma lacks basic safeguards followed in many other states. Among those are regular training for the execution team, the availability of backup drugs in the event of a problem with the initial injection, and specified procedures for determining whether the inmate is unconscious. The World questioned Oklahoma's decision to use a three-drug protocol when a less error-prone, one-drug protocol was available under the state's procedures. A review of autopsy records from Oklahoma's executed inmates found that all inmates were given the same dose of the drugs, regardless of their weight. At least 32 of the 108 inmates for whom records were available had levels of anesthetic in their blood below what experts say would render a patient unconscious. In 2008, the U.S. Supreme Court said it was "uncontested" that, without sufficient anesthesia, "there is a substantial, constitutionally unacceptable risk of suffocation" from the second and third drugs used in lethal injections. A state law passed in 2000 ended the practice of automatic autopsies of executed prisoners. Autopsies are now performed only if requested by the inmate's family or ordered by state officials. An autopsy of Clayton Lockett was ordered, but the full results have not yet been released.

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."

NEW RESOURCES: The Angolite Reviews the Death Penalty and Experimentation on Prisoners

The most recent issue of The Angolite, a magazine written and published by prisoners at Louisiana State Penitentiary in Angola, which houses the state's death row, contains a number of articles relevant to the death penalty. The first, "Shifting Values," discusses the declining use of the death penalty through an examination of developments in 2013. A second article, "Death House Cat & Mouse," reports on Louisiana's complicated struggle to obtain lethal injection drugs for executions. Another lengthy article, "First, Do No Harm," discusses the history of medical experimentation on prisoners throughout the U.S. While not focused on the death penalty, the article is relevant to the current use of untried drugs and combinations of drugs in lethal injections around the country.

NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2014

The American Bar Association has released a new publication, The State of Criminal Justice 2014, examining major issues, trends and significant changes in America's criminal justice system. The chapter devoted to capital punishment was written by Ronald Tabak, an attorney at Skadden Arps. Tabak presents evidence of the declining use of the death penalty in death sentences and executions, particularly noting the growing geographic isolation of the death penalty. He also highlights numerous studies and cases regarding innocence and racial bias. He concludes, "[I]t is vital that the legal profession and the public be better informed about what is really going on in the capital punishment system.... Ultimately, our society must decide whether to continue with a system that cannot survive any serious cost/benefit analysis."

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Department of Justice Review of State Death Penalty Protocols Underway

Following the botched execution of Clayton Lockett in Oklahoma in April, President Obama ordered the Justice Department to review death penalty procedures in the states. Though a timeline for the study has not been released, the department has already reached out to at least one organization, the Constitution Project, which proposed several reforms in its recent report on the death penalty, including the establishing of an office at the Justice Department  to review innocence claims from death row prisoners. The group alos asked for more information about federal death penalty cases, given evidence of racial disparity, and the development of “federal standards and procedures” for accrediting forensic laboratories.  

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