RECENT LEGISLATION: Texas Law To Protect the Innocent May Curtail Death Penalty

A new Texas law requiring DNA testing of all biological evidence prior to seeking the death penalty could reduce the number of capital cases. District Attorney Billy Byrd of Upshur County noted, "Essentially, every piece of evidence will have to be tested,” he said, which could delay trials more than a year. “Certainly, that will be the case. We will have to deal with certain delays and longer waits,” he added, noting it is not uncommon for DNA evidence to take more than a year to be processed. Nevertheless, Texas Attorney General Greg Abbott (a likely Republican candidate for governor) is a strong supporter of the law, as is Senator Rodney Ellis, Democrat of Houston, who introduced the bill. Abbott believes the law will eventually save the state time and resources, because the necessary testing will be done upfront.

LETHAL INJECTION: Many States Are Searching for New Execution Drugs

Many states are seeking alternative ways to carry out executions by lethal injection. Missouri announced it intends to use the anesthetic propofol, though no other state has used this drug and the drug's manufacturer has strongly objected to such use. Officials in Texas and Ohio announced they will be changing their execution protocols in the near future because their current execution drug (pentobarbital) is expiring and is no longer available for this use. In June, officials in California announced it would abandon its three-drug execution method and develop a new process. Georgia apparently obtained drugs outside the state, but has passed a law making all information about executions a "state secret."  Deborah Denno, a professor at Fordham Law School and an expert on methods of execution, noted the problems states face, “The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end. This affects every single execution in the country. It just stalls everything, stalls the process.”

STUDIES: Texas To Re-Examine Previous Convictions for Forensic Errors

The Texas Forensic Science Commission announced it will study prior criminal convictions to determine whether mistakes were made using discredited forensic testimony. The Commission will employ DNA testing to review cases in which microscopic hair fibers were used to convict people of rape, murder, robbery, and other crimes. It has recently been established that it is impossible to match a hair under a microscope to a specific person. Forensic experts can make an “association” between a sample of hair evidence and a hair from a suspect. The state’s review is part of a national effort by the FBI and the Justice Department to identify false convictions due to improper hair comparisons. Arthur Eisenberg, a Texas science commissioner, said, “We have a moral responsibility to find out… We want to make sure convictions are based upon responsible forensic evidence. And we want to make sure there aren’t cases where undue weight has been put on that evidence.” Such review came too late for Claude Jones, who was executed in Texas in 2000. At his trial, an expert said there was a match between a hair from the crime scene and Jones. DNA testing later showed the hair belonged to the victim.

LETHAL INJECTION: Shortage of Drugs Leaves Texas Unsure About Future Executions

On August 1, the Texas Department of Criminal Justice announced its remaining supply of pentobarbital, used for lethal injections, expires in September, and it is unsure where to obtain more. The drug's manufacturer, Lundbeck, Inc., has barred distribution to states intending to use the drug in executions. DPIC’s Executive Director, Richard Dieter, remarked, “What’s happening is a scramble by Texas and other states to find something to quickly get into the syringe, rather than a reasoned public discussion about, if we’re going to do this, what is the best practice. The problem here is that life-saving drugs used by medical professionals are being used in executions, and the drug companies don’t want to be a part of that.” In recent months, other states have sought alternatives to pentobarbital. Missouri said it intended to use propofol, though its manufacturer also opposed such use. Georgia, Arkansas, Nebraska, California and other states are also reviewing execution procedures in response to problems with earlier protocols.  On August 1, a federal District Court in Florida ordered the state to reveal information about the drugs to be used in the upcoming execution of John Ferguson on August 5. Florida replied that it received doses of pentobarbital manufactured by Hospira, Inc. for Lundbeck, Inc. from Cardinal Health in Ohio. The drugs were received in 2011 and have expiration dates of Sept. 30 and Nov. 30, 2013.

STUDIES: "A Death Before Dying: Solitary Confinement on Death Row"

A new report from the American Civil Liberties Union, “A Death Before Dying: Solitary Confinement on Death Row,” contains a survey of the conditions on death rows across the country and offers a comprehensive review of the serious implications of subjecting inmates to solitary confinement. The report reveals that most death row prisoners are housed in tiny cells, ranging from 36-100 square feet, roughly the size of an average bathroom; 93% of states lock up their death row prisoners for 22 or more hours a day. The report is accompanied by a video featuring Anthony Graves, who spent several years in solitary confinement on Texas’s death row before he was exonerated and released in 2010. Graves described solitary confinement as “like living in a dark hole.” He wrote, “I saw the people living on death row fall apart. One guy suffered some of his last days smearing feces, lying naked in the recreation yard, and urinating on himself. I saw guys who dropped their appeals and elected to die because of the intolerable conditions. To sum it up, I saw a bunch of dead men walking because of the conditions that killed everything inside of them.”

EXECUTIONS: As of Mid-Year 2013, Pace of Executions Continues to Decline

In the first half of 2013, six states carried out 18 executions. In the same period last year, there were 23 executions in 8 states. The annual number of executions has declined significantly from its peak in 1999, when 98 people were put to death. There were 43 executions in 2011 and 2012. Sixteen of this year's executions (89%) have been in the South, with nearly half in Texas (8). Eight of the defendants executed so far this year were black, and ten were white. Seventy-three percent (73%) of the victims in cases resulting in executions this year were white, even though generally whites are victims of murder in less than 50% of the cases. All of the executions in 2013 but one have been by lethal injection. (Robert Gleason chose to be executed by electrocution in Virginia in January.) All of the lethal injections were carried out using pentobarbital, either in a single or multiple-drug protocol.

NEW VOICES: Texas Paper Changes Its Death Penalty Position

The Fort Worth Star-Telegram announced a change in its stance on the death penalty in a recent editorial marking the 500th execution in Texas. While the newspaper had previously endorsed a moratorium on executions, it now supports the abolition of capital punishment. The editors said that moral grounds alone are enough to warrant ending the death penalty, but they also cited a variety of problems in Texas's use of the death penalty, including geographical and racial disparities in sentencing, and the state's "embarassing record of wrongful conviction." The paper pointed to the decline in death sentences and executions as evidence that the death penalty is no longer necessary, concluding, "Abolishing capital punishment would neither demean the memory of victims nor deny any of them justice. Instead, it would make our society as a whole more just, more morally consistent, and certainly more humane." Read the full editorial below.

500th Texas Execution Scheduled Despite Concerns about Racial Bias and Quality of Legal Representation

Kimberly McCarthy (pictured), who is facing execution on June 26, is scheduled to become the 500th person executed in Texas since 1976. McCarthy’s attorney, Maurie Levin, recently filed a new motion to stay the execution because racial discrimination and inadequate legal representation played significant roles in McCarthy’s case. According to the filing, only four non-white potential jurors made it to the final selection from an initial pool of 64 prospective jurors. Three of the four potential jurors were removed from the final jury by the prosecution using peremptory strikes. Levin also argues that McCarthy’s execution should be stayed because she received inadequate legal representation. In a recent U.S. Supreme Court ruling in Trevino v. Thaler, the Court said Texas courts are required to consider appeals from death row inmates who claim ineffective assistance of counsel.