Alabama

Alabama

Alabama to Execute Ronald Smith Despite Jury's Vote For Life Sentence

Alabama is set to execute Ronald Smith on December 8, although the sentencing jury in his case recommended that he be sentenced to life. Under a practice that is no longer permitted in any other state, Smith's judge overrode the jury's sentencing recommendation and imposed a death sentence. As his execution approaches, Smith has filed a petition in the U.S. Supreme challenging the constitutionality of Alabama's law. He argues it violates both his right to have a jury determination of all facts that are a prerequisite to imposing the death penalty, and a national consensus against judicial disregard of jury capital sentencing verdicts. Smith's petition notes that "Alabama is the only state that allows a judge to sentence a defendant to death when the jury has recommended a sentence of life." His lawyers also have petitioned Governor Robert Bentley for clemency, quoting a juror who said, "It was very painful to make such a difficult decision, only to have the judge disregard it." A recent report by the Brennan Center on Justice found that "electoral pressures influence judges' decisions in capital cases," including Alabama's practice of judicial override, which accounts for one-fifth of Alabama's death row.  Earlier this year, state courts in Florida and Delaware--the only other states that had permitted judicial override--struck down sentencing statutes that permitted judges to impose death sentences in the face of jury recommendations for life or non-unanimous recommendations for death. These decisions grew out of the U.S. Supreme Court's January 2016 ruling in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Smith's attorneys argue that Alabama's judicial override practice violates Hurst. Alabama's attorney general disagrees, arguing that the Alabama statute is different from Florida's because it requires the jury to find the existence of an aggravating factor making the defendant eligible for death. Smith's lawyers also argue that "[t]his life-and-death decision is being made by judges facing intense electoral pressure," rendering such overrides unconstitutionally arbitrary. Smith was never able to obtain review of these issues in federal court because his attorney made an error in paying a filing fee. Though his claims were filed by the deadline, his lawyer, who was on probation for public intoxication at the time, assumed he did not have to pay a filing fee of $154 because his client was indigent. In addition to his judicial override challenge, Smith is also part of a group of death row inmates challenging Alabama's new lethal injection protocol, which would use midazolam, a drug involved in several botched executions over the last few years.

OUTLIER COUNTIES: Alabama's Leading Death Sentencing County Elects Prosecutors Who Oppose Capital Punishment

Jefferson County, Alabama is among both the 2% of counties that account for more than half of all executions in the U.S. and are responsible for more than half of all prisoners on death row across the country. It led the state in new death sentences from 2010-2015, putting more people on death row than 99.5% of U.S. counties. All five of the defendants sentenced to death in those cases were Black. But the county may soon see a decline in death sentences as voters appear to have ousted the county's two elected district attorneys in favor of prosecutors who say they are "personally opposed" to the death penalty and plan to use it rarely. Charles Todd Henderson was elected as district attorney of Jefferson's Birmingham division, and Lynneice Washington leads a tight race in the Bessemer division, where votes will be recounted on November 21. Henderson has criticized Alabama's judicial override policy, which allows judges to impose a death sentence even when a jury recommends life, saying "We serve at the will of the people .... We should honor what the people say." Alabama is the only state to permit such overrides and Jefferson County judges overrode jury's recommendations for life in 44% of the 18 death penalty cases from the county that were decided on direct appeal between 2006-2015. All 18 cases involved a non-unanimous jury, an outlier practice that was struck down by state courts in Delaware and Florida this year, leaving Alabama as the last state to allow it, and in every one of those cases, defense lawyers presented less than one day’s worth of mitigation evidence. Henderson also said he supports reviewing current Jefferson County death penalty cases for possible wrongful convictions, citing the case of Anthony Ray Hinton, who was released in 2015 after spending 30 years on death row. Hinton's trial was tainted by racial bias, inadequate representation, and junk science. Washington echoed Henderson's concerns, saying, "I am personally opposed to the death penalty because there have been so many people who were put on death row who were later found to be innocent." In addition to Hinton, two other wrongfully convicted death row prisoners from Jefferson County also have been released. Wesley Quick, who was just 18 years old at the time of the murder for which he was twice wrongly sentenced to death, was acquitted of all charges in his third trial in 2003. Montez Spradley was sentenced to death by a judge who overrode a 10-2 jury recommendation for life. It was later discovered that a star witnesses for the prosecution—Spradley's disgrunted ex-girlfriend—had been paid $10,000 for her testimony, and although the judge had personally approved half of that payment, neither she nor the prosecution disclosed it to the defense. Spradley entered a no-contest plea in exchange for his freedom in 2015.  

Voters Oust Prosecutors in Outlier Death Penalty Counties, Retain Governors Who Halted Executions

Prosecutors in three counties known for their outlier practices on the death penalty were defeated by challengers running on reform platforms, while voters in Oregon and Washington re-elected governors who acted to halt executions. In Hillsborough County, Florida, Democrat Andrew Warren defeated Republican incumbent Mark Ober (pictured, l.). Warren pledged to seek the death penalty less often and establish a unit to uncover wrongful convictions. In Harris County, Texas, incumbent Devon Anderson (pictured, r.) was defeated by Democratic challenger Kim Ogg. Ogg ran on a platform of broad criminal justice reform and had received support from the Black Lives Matter movement. Harris County leads the nation in executions and is second only to Los Angeles in the number of people on its death row. Ogg had said that the death penalty had created "a terrible image for our city and our county" and pledged that, "[u]nder an Ogg admninistration, you will see very few death penalty prosecutions." Brandon Falls, District Attorney of Jefferson County, Alabama, lost his seat to Charles Todd Henderson, who does not support the death penalty and said he plans to “bring about real criminal justice reform.” Hillsborough, Harris, and Jefferson all rank among the 2% of U.S. counties responsible for a majority of death row inmates in the U.S., and were among the 16 most prolific death sentencing counties in the U.S. between 2010-2015. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University, said. In gubernatorial elections, voters re-elected governors who had halted executions in their states. Washington voters re-elected Governor Jay Inslee, who imposed a death penalty moratorium, and Oregon voters gave a full term to Governor Kate Brown, who had extended her predecessor's moratorium and pledged to keep the moratorium in effect if elected. In North Carolina, voters defeated incumbent Governor Pat McCrory, who had supported efforts to repeal the state's Racial Justice Act. 

Supreme Court Stays Execution of Tommy Arthur in Alabama

The U.S. Supreme Court has stayed the execution of Tommy Arthur, who was scheduled to be executed in Alabama at 6:00 p.m. Central Time on November 3. Around 10:30 p.m. Eastern, the Court first issued a temporary stay of execution through Circuit Justice Clarence Thomas "pending further order" of the Court. Anticipating a second ruling by the Court, Alabama continued preparations for the execution. Then, just before midnight in Washington, the Court issued a full stay to permit it to consider a petition for writ of certiorari Arthur had filed earlier in the day. Arthur's lawyers had filed two stay applications and petitions for writs of certiorari. One petition sought review of the Alabama Supreme Court's summary dismissal of his challenge to the constitutionality of Alabama's death penalty statute under the Supreme Court's January 2016 decision in Hurst v. Florida. Hurst struck down Florida's death penalty statute because it required a judge, rather than a jury, to find critical facts that were a prerequisite to imposing the death penalty, and Arthur had argued that Alabama's statute suffered from the same defect. The other petition sought review of the denial of Arthur's lethal-injection challenge by a divided 2-1 panel of the U.S. Court of Appeals for the Eleventh Circuit. In its opinion, that court had ruled that Arthur had not met the burden imposed by the Supreme Court's 2015 decision in Glossip v. Gross of showing that an alternative method of execution was available to Alabama because the firing squad -- his proposed alternative -- was not "readily available" under Alabama law. The dissent wrote: "By misreading an Alabama statute, the Majority creates a conflict between the claim and state law. The Majority then resolves that faux conflict in favor of state law, taking the unprecedented step of ascribing to states the power to legislatively foreclose constitutional relief. These missteps nullify countless prisoners’ Eighth Amendment right to a humane execution." The Supreme Court granted Mr. Arthur's stay application in the lethal-injection case. Four Justices voted to stay the execution, with Chief Justice Roberts providing the fifth vote "as a courtesy." Justices Thomas and Alito dissented. Without the time constraints imposed by the death warrant, the Justices can now consider whether to grant review in the case. This was the seventh time Mr. Arthur's execution has been stayed.

NEW VOICES: Former Reagan Attorney General and Former Manhattan Prosecutor Speak Out In Possible Innocence Case

Edwin Meese III (pictured), who served as U.S. Attorney General under President Ronald Reagan, and Robert Morgenthau, the long-time district attorney of Manhattan who served as a U.S. attorney under Presidents John F. Kennedy and Lyndon Johnson, believe that Alabama death row prisoner William Kuenzel is innocent and are urging the U.S. Supreme Court to review his case. Meese and Morgenthau belong to different political parties and take opposing views on capital punishment, but both believe that Kuenzel was wrongfully convicted and condemned for the 1987 murder of a convenience store clerk and deserves a chance to present new evidence. Kuenzel was implicated in the murder after a car belonging to Harvey Venn, a boarder in Kuenzel's home, was seen near the crime scene. He was convicted after Venn admitted to having driven the car, but claimed that Kuenzel had actually shot the clerk, and a 16-year-old passenger in a car that was passing by the store testified that she had seen Venn and Kuenzel inside the store. Alabama prosecutors offered both men a deal for leniency if they agreed to plead guilty and testify against one another. Venn agreed and spent only ten years in prison, but Kuenzel maintained his innocence and rejected the deal. Since the trial, previously-withheld evidence has emerged that supports Kuenzel's innocence claim, including police notes of an initial interview with Venn in which he said another man was in the car with him, and the grand jury testimony of the passerby in which the girl said that she "couldn't really see" the faces of the men in the store. In an amicus brief, Meese calls the withholding of that evidence "the very worst kind of Brady violation, which resulted in condemning to death a defendant whose conviction was obtained in violation of the Constitution and who is very likely actually innocent." Morgenthau said of Kuenzel, "[t]here's no possible way he could have committed the murder." Meese and Morgenthau also share a concern about the quality of representation in capital cases, and are calling for automatic appellate review of the competence of defense counsel.

Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.  

Equal Justice Initiative Memorial Highlights Links Between Lynching and Death Penalty

The Equal Justice Initiative has announced plans to construct a Memorial for Peace and Justice in Montgomery, Alabama to commemorate the victims of terror lynchings in the American South. In a New Yorker profile of EJI executive director Bryan Stevenson, Jeffrey Toobin describes EJI's criminal defense work and the genesis of the lynching memorial. "There’s no question that we have a long history of seeing people through [a] lens of racial difference. It’s a direct line from slavery to the treatment of black suspects today, and we need to acknowledge the shamefulness of that history,” Stevenson says. “Our society applies a presumption of dangerousness and guilt to young black men, and that’s what leads to wrongful arrests and wrongful convictions and wrongful death sentences." EJI's groundbreaking book, Lynching in America: Confronting the Legacy of Racial Terror, has documented hundreds of previously unacknowledged lynchings across the South. Stevenson and other scholars link the history of lynchings to the use of the death penalty today. Professor Jordan Steiker of the University of Texas at Austin said, “In one sense, the death penalty is clearly a substitute for lynching. One of the main justifications for the use of the death penalty, especially in the South, was that it served to avoid lynching. The number of people executed rises tremendously at the end of the lynching era. And there’s still incredible overlap between places that had lynching and places that continue to use the death penalty.” The peace memorial, which EJI hopes to open in in 2017, will contain a suspended column representing each U.S. county in which a lynching has been documented. Volunteers have traveled across the American South collecting soil from each known lynching site for inclusion in the memorial. In addition to the permanent columns, there will be a removeable column for each county, which EJI will encourage local jurisdictions to return to their home counties to display as an acknowledgment of their history. “We’re going to create a space where you can walk and spend time and go through that represents these lynchings," Stevenson said, "But, more than that, we’re going to challenge every county in this country where a lynching took place to come and claim a memorial piece—and to erect it in their county.”

Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan--rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart--from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.

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