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." 

Why Missouri is an Outlier in Execution Trends

As national execution numbers drop to historic lows and a growing number of states halt executions or repeal the death penalty altogether, Missouri has recently increased the number of executions it is carrying out and overtaken Texas for the highest per-capita execution rate. Missouri and Texas have carried out all of the last 15 executions in the U.S. and 80% of executions through September 1 of this year. A report by The Marshall Project explores why Missouri is bucking national trends, highlighting the availability of execution drugs, Missouri's political climate, and the lack of adequate defense resources. While shortages of lethal injection drugs have slowed executions in many states, Missouri has managed to stockpile pentobarbitral for use in executions. Because of state secrecy laws, the source of the drug is unknown, and state officials will not confirm whether the drug is produced by a compounding pharmacy or obtained from another source, such as a veterinary supplier or overseas manufacturer. The governor and attorney general of Missouri have pushed to move executions forward, using the death penalty to establish "tough-on-crime" credentials as Democrats in a politically conservative state. Courts have also contributed to the unusual situation in Missouri. The state Supreme Court, which sets execution dates, scheduled one execution per month to make up for holds due to drug shortages. Finally, underfunding and heavy caseloads have created what defense attorneys are calling a "crisis" in capital representation. Missouri was ranked 49th of the 50 states in per-capita spending on indigent defense in 2009. In March, the American Bar Association Death Penalty Assessment Team told the Missouri Supreme Court, "The current pace of executions is preventing counsel for the condemned from performing competently. "

STUDY: Missouri Study Finds Significant Racial and Geographic Disparities in Application of Death Penalty

A new study by Professor Frank Baumgartner of the University of North Carolina at Chapel Hill finds stark racial and geographic disparities in the application of the death penalty in Missouri. A majority of Missouri's executions came from just 2.6% of the state's counties, mirroring national trends, as 2% of U.S. counties have produced 52% of all executions since 1976. St. Louis County - the home of Ferguson, Missouri - has carried out more executions than any other Missouri jurisdiction. A person convicted of homicide in that county is three times more likely to be executed than someone convicted of the same crime elsewhere in the state and is 13 times more likely to be executed than for having committed the same crime in neighboring St. Louis City. Baummgartner also found significant racial disparities, particularly relating to the race of victims. Homicides involving white victims were 7 times more likely to result in executions than those involving black victims. Although 60% of murder victims in Missouri are black, 81% of people executed in Missouri had been convicted of killing white victims. Cases involving white female victims were 14 times more likely to result in execution than those involving black male victims. "If left unaddressed, these racial, gender, and geographic disparities may erode judicial and public confidence in the state’s ability to fairly administer the ultimate punishment," Baumgartner concludes. "A punishment that is so arbitrarily and unfairly administered could reasonably be deemed unconstitutional." (Click image to enlarge.)

Missouri Execution Clouded by Concerns About Mental Illness and Lethal Injection

On June 9, Richard Strong was executed in Missouri, despite the fact that four Justices of the Supreme Court would have granted him a stay and despite evidence that he suffered from severe mental illness. A broad challenge to Missouri's secretive lethal injection process (Zink v. Lombardi) has yet to be resolved, and Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to stay Strong's execution because of that challenge. However, five votes are needed to stay an execution. In addition, Strong's original trial counsel failed to adequately explore his mental illness and the mental problems in his family. After a fuller investigation, Strong was diagnosed with major Axis I illnesses, including: Major Depression, Obsessive-Compulsive Disorder (OCD), Post-Traumatic Stress Disorder (PTSD) and Schizotypal Personality Disorder, and Dissociative Identity Disorder. Strong's counsel asked the Supreme Court to spare his life because society's standards of decency have turned away from executing people with such severe mental problems. Strong was convicted of murdering his wife and two-year-old daughter in a brutal manner. He acknowledged the crime but could not understand why he did it. Another child was left untouched. Now 14 years old, she pleaded for mercy for her father. Gov. Jay Nixon denied clemency.

UPCOMING EXECUTIONS: Elderly Man With Low IQ and Brain Damage Facing Imminent Execution

UPDATE: An image of Cecil Clayton's brain obtained via MRI can be viewed here. The image shows the front left part of his brain is physically missing. Cecil Clayton is 74, suffers from dementia, has an IQ of 71, is missing a significant part of his brain due to an accident, and is scheduled for execution on March 17 in Missouri. His attorneys insist he should be spared because he does not understand the punishment to be carried out. Clayton sustained a brain injury in a sawmill accident in 1972, requiring removal of about 20% of his frontal lobe, which is involved in impulse control, problem solving, and social behavior. After the accident, Clayton began experiencing violent impulses, schizophrenia, and extreme paranoia, which became so severe that he checked himself into a mental hospital out of fear he could not control his temper. In 1983, Dr. Douglas Stevens, a psychiatrist, examined Clayton and concluded, “There is presently no way that this man could be expected to function in the world of work. Were he pushed to do so he would become a danger both to himself and to others. He has had both suicidal and homicidal impulses, so far controlled, though under pressure they would be expected to exacerbate.” In the past decade, six psychiatric evaluations have found that Clayton should be exempt from execution because he does not understand that he will be executed, or the reasons for his execution. However, since his execution date has been set, he has not had a competency hearing before a judge that could spare him from execution.

U.S. Supreme Court Grants Missouri Inmate New Attorneys for Federal Appeal

On January 20 the U.S. Supreme Court (7-2) granted Missouri death row inmate Mark Christeson new attorneys to assist him in pursuing his federal appeal. Christeson's appointed attorneys missed a crucial filing deadline for his federal appeal, not even meeting with him until a month after the deadline. New attorneys offered to represent Christeson, arguing that his current attorneys had a conflict of interest, since advocating for him would mean admitting their own error. The District Court and Court of Appeals both denied the request for substitution of counsel, and Christeson's execution date was set for Oct. 29, 2014. The Supreme Court granted a stay, and, in deciding the case, wrote, "[Christeson's original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests." Fifteen former judges filed a brief in support of Christeson, saying, "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court."

EDITORIALS: St. Louis Post-Dispatch Voices Death Penalty Opposition Even in Murder of Fellow Journalist

A recent editorial in the St. Louis Post-Dispatch reiterated its opposition to the death penalty, even as Missouri prepares to execute the man convicted of killing a former Post-Dispatch reporter. Marcellus Williams is scheduled to be executed on January 28 for the murder of Lisha Gayle (pictured), who left her job as a journalist three years before she was killed. The paper noted Gayle's likely opposition to the death penalty: "It would be surprising, in light of her other causes and passions, if Lisha herself was a death penalty supporter." It then catalogued its own reasons for opposing capital punishment: "It is expensive — each case costs about $1 million more to prosecute than a capital case where the death penalty is not sought, according to one study. It serves no deterrent purpose. It can’t help but be imposed arbitrarily and capriciously. Occasionally innocent people are put to death. Occasionally, executions are botched and inmates suffer cruel and unusual pain."

NEW VOICES: Judges Call for Appellate Review Before Impending Execution

A group of 15 former state and federal judges, including a former Chief Justice of the Missouri Supreme Court, has filed an amicus brief with the U.S. Court of Appeals for the Eighth Circuit in support of a stay of execution for Mark Christeson in Missouri. Christeson is scheduled to be executed on October 29, but the judges said he has not received "any meaningful federal review of his death sentence." In their brief, organized by the Constitution Project, the judges stated: "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court." The supportive appeal was signed by judges from across the country, including Nathaniel Jones, formerly of the U.S. Court of Appeals for the Sixth Circuit, Karla Gray, former Chief Justice of the Montana Supreme Court, Gerald Kogan, former Chief Justice of the Florida Supreme Court, Marsha K. Ternus, former Chief Justice of the Iowa Supreme Court, and Michael A. Wolff, former Chief Justice of the Missouri Supreme Court.