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California Agency Rejects Proposed Execution Protocol

In a new setback to efforts to restart executions in California, the state's Office of Administrative Law (OAL) has rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is responsible for reviewing regulatory changes proposed in California, issued a 25-page decision of disapproval, citing inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments. The agency gave the Department of Corrections four months to address problems in the protocol. The proposed protocol would have changed California's previous three-drug procedure to a one-drug procedure, calling for 7.5 grams of one of four barbiturates. The OAL questioned whether the 7.5 gram dose met California's requirement that a regulation be "necessary," noting that corrections officials had said 5 grams of the barbiturate would be lethal and had provided no rationale as to why they chose a larger dose. It also requested clarification of numerous ambiguities in the new regulations, including the steps taken by correctional officials in the days leading up to the execution, what steps would be taken during the course of an execution if the prisoner did not immediately die, and what would be involved in monthly inspections of the execution chamber. Among the inadequate responses to public comments, the OAL noted that "[t]he Department's response does not address the issue of 'using methods that are untested or poorly understood' or 'human experimentation' as it pertains to the use ... for lethal injection purposes" of two of the drugs in the protocol. Executions in California have been on hold since 2006 because of legal challenges to the state's lethal injection procedure. In November, voters narrowly passed Proposition 66, which proposes to speed up executions. Implementation of that proposition was blocked by the California Supreme Court, pending the outcome of a lawsuit.

Texas Sues Food and Drug Administration Over Seizure of Execution Drugs

The Texas Department of Criminal Justice filed suit on January 3, 2017 against the federal Food and Drug Administration (FDA) over the FDA's continued detention of drugs Texas had attempted to import for executions. In October 2015, Texas and Arizona attempted to import sodium thiopental, an anesthetic commonly used in executions prior to 2010, from Harris Pharma, a supplier in India. The FDA halted both shipments, saying that their import violated federal law. The FDA does not comment on litigation, but has previously said that sodium thiopental has no legal uses in the United States. The agency has indicated in the past that an injunction issued by a federal district court in Washington in 2013, and which later was upheld by the United States Court of Appeals for the District of Columbia Circuit, requires it to halt importation of the drug. No U.S. manufacturer currently produces sodium thiopental, and so the drug is unavailable from domestic sources. Texas argues that the drug should be allowed to be imported under a "law enforcement exemption" to usual importation rules. In a statement about the lawsuit, Texas Attorney General Ken Paxton attacked the agency, saying "[t]here are only two reasons why the FDA would take 17 months to make a final decision on Texas’ importation of thiopental sodium: gross incompetence or willful obstruction." Texas has used an alternative drug, pentobarbital, in executions since 2012. A spokesman for the Texas Department of Criminal Justice said, "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process."

Washington Governor Issues Reprieve, Calls for Abolition of Death Penalty

Citing "serious concerns about the use of capital punishment in the state of Washington," Governor Jay Inslee (pictured) granted a reprieve to Clark Richard Elmore, whom the state's Department of Corrections had scheduled for execution on January 19, 2017, and urged the state legislature to abolish capital punishment in the state. The December 29, 2016 warrant of reprieve was the first reprieve order issued under a moratorium on executions that the governor announced in 2014. The warrant prevents Washington from executing Elmore unless and until the reprieve is lifted by Inslee or a future governor, but it does not reduce Elmore's sentence. The Governor's office said Inslee spoke with the victim’s family, "who expressed a preference to see Elmore serve life in prison," before issuing the reprieve. The warrant of reprieve reiterates several of the concerns about the death penalty that led Gov. Inslee to impose the moratorium in the first place, including "[u]nequal application across the state, lack of clear deterrent value, high frequency of sentence reversal on appeal, and rising costs." It states:  "The State's two most important responsibilities in addressing criminal justice issues are to protect the public and to ensure equal justice under the law, and I do not believe the use of capital punishment effectively satisfies these responsibilities." In a separate statement to the media, the governor's office said the state's moratorium on executions was based on systemic concerns and "isn’t about individual cases." Because of those concerns, the statement said, "[t]he governor urges the state legislature to end the death penalty once and for all." Nine men are currently on death row in Washington, and the state's last execution was in 2010.

NEW VOICES: Regretting Execution, Murder Victim's Family Urges Governor to Commute Missouri's Death Row

When Missouri executed Jeff Ferguson in 2014 for the rape and murder of Kelli Hall, her father said the Hall family "believed the myth that Ferguson’s execution would close our emotional wounds." At that time, Jim Hall told reporters "It's over, thank God." But, he now says, it wasn't. In an op-ed in the Columbia Daily Tribune, Mr. Hall writes that his family has "come to deeply regret [Ferguson's] execution" and appeals to Governor Jay Nixon to commute the death sentences of the 25 men remaining on the state's death row. Hall says that several weeks after Ferguson was executed, his family viewed a documentary film that featured comments from Ferguson that "conveyed such genuine remore for the pain he caused both our family and his because of his horrible actions." A few months later, the Halls also learned that Ferguson had been a leader in the prison's hospice, GED, and restorative justice programs, including one in which prisoners listened to victims share the devastating impact the crimes had on their lives.The Hall family was able to forgive Ferguson as soon as they saw the film, and Mr. Hall says "my family wishes we had known of his involvement in these programs and been invited to participate. ... I'm convinced significant healing would have occurred for us all if our family had engaged in a frank conversation with him at the prison. I wish I had had the chance -- consistent with my Christian beliefs -- to have told him in person that I forgave him for what he did to our innocent and precious daughter." While applauding Governor Nixon for "his strong advocacy of restorative justice," Mr. Hall writes "[t]he death penalty ... stands as the concept's polar opposite." Commuting all of Missouri's death sentences to life in prison without parole, he says, "would be a true gesture of restorative justice."

First-Degree Murder Charges Dropped Against Two Former Pennsylvania Death Row Prisoners With Innocence Claims

On December 22, Pennsylvania prosecutors dropped first-degree murder charges against two former Pennsylvania death row prisoners who have asserted their innocence for decades. In courtrooms 100 miles apart, Tyrone Moore and James Dennis entered no-contest pleas to charges of third-degree murder, avoiding retrials on the charges that had initially sent the men to death row and paving the way for their release. A Luzerne County judge sentenced Moore to 20 years and released him from prison for time served following his no contest plea. He had already served 34 years, 22 of them on death row for a murder during the course of a robbery at a veterinary office. A federal judge had granted Moore a new trial after he presented evidence of ineffective assistance of counsel, including his lawyer's failure to interview a co-defendant who testified in his own trial that Moore was not present at or involved in the robbery or killing. Before entering the plea, Moore reiterated that he is "wholeheartedly innocent" of the crime, and told the court, "I want to be home with my family." The victim's family supported the plea deal. In the second case, Dennis had spent 25 years on death row for the robbery and murder of a woman at a transportation terminal in Philadelphia. A federal judge overturned his conviction in 2013 as a result of multiple instances of prosecutorial misconduct, including suppressing evidence pointing to an alternate suspect who was a high school classmate of the victim and other evidence supporting Dennis' alibi. The court called the conviction "a grave miscarriage of justice," saying that Dennis had been convicted and sentenced to death "for a crime in all probability he did not commit." His attorney, Karl Schwartz, told the court, "James Dennis entered a no-contest plea, not a guilty plea, because he maintains the same position that he has maintained for 25 years: that he is innocent of this crime. He and his family have made this incredibly difficult decision based on his and their strong desire to have him home and free, [in] lieu of potentially years of continuing litigation." Dennis faces parole for an unrelated robbery conviction before he can be released.

OUTLIER COUNTIES: Orange County, California Plagued by Misconduct Scandals

Orange County, California imposed nine death sentences between 2010 and 2015, more than 99.8% of American counties, and ranking it among the 6 most prolific death-sentencing counties in the country during that period. Over the last four years, patterns of misconduct have been revealed in the Orange County District Attorney's Office, sheriff's office, and crime lab. In 2015, Judge Thomas Goethals disqualified District Attorney Tony Rackauckas (pictured) and the entire prosecutor's office from participating in the capital trial of Scott Dekraai because of systemic police and prosecutorial misconduct involving the deliberate and undisclosed use of prison informants to unconstitutionally elicit incriminating statements from defendants. A California appeals court, citing "[t]he magnitude of the systemic problems" in Orange County and the "cozy relationship" between local prosecutors and the sheriff's office, upheld the trial court's order. The sister of the victim in Dekraai's case asked the office to stop seeking the death penalty because the mishandling of the case had led to five years of delays. She called the death penalty a "false promise" for victims' families, yet the office continued to pursue a death sentence. Judge Goethals' ruling prompted the passage of a California law giving judges greater authority to remove prosecutors from cases in which they have committed misconduct, and to report misconduct to the state bar. It also led to a special committee report on the Orange County District Attorney's Office, which found a "failure of leadership" at the root of the misconduct, along with a "win-at-all-costs mentality." In mid-December, the U.S. Department of Justice announced it was opening an investigation into the county's use of jailhouse informants. Meanwhile, a motion by the Orange County Public Defender's Office filed in September accused the county crime lab of doctoring testimony to benefit the prosecution, after a senior forensic analyst offered contradictory testimony in two separate murder trials, each supporting the prosecution's case. Recent death sentences in Orange County show patterns of bias and dispropotionality. 89% of those sentenced to death from 2010-2015 were people of color, and 44% were Black, though Blacks make up just 2% of Orange County's population. Half of the 24 cases decided on direct appeal from 2006-2015 involved defendants with serious mental illness, brain damage, intellectual impairment, or who were under age 25 at the time of their crime.

United Nations Overwhelmingly Adopts Resolution Calling for Global Moratorium on the Death Penalty

The United Nations General Assembly voted overwhelmingly on December 20 to adopt a resolution co-sponsored by 89 countries urging a worldwide moratorium on the death penalty. 117 nations voted in support of the world body's sixth resolution on the subject, equaling the record number of countries who supported a UN moratorium resolution in 2014. 40 member nations, including the United States, voted against the measure, while 31 abstained. The resolution also called upon all countries to respect international standards providing for procedural safeguards for those facing the death penalty, to comply with their obligations on consular relations, to progressively restrict their use of capital punishment, and to make available data on how and against whom they apply the death penalty. This year's vote reflected some countries' recent changes on the issue, as Guinea and Nauru, which have recently abolished the death penalty in law, joined those voting in favor. Two countries that are abolitionist in practice, but not in law, Malawi and Swaziland, also voted in favor of the resolution for the first time. Despite its status as a retentionist country, the United States has seen a decline in the use of the death penalty, with death sentences and executions both reaching historic lows this year.

REPORT: Two-Thirds of Oregon's Death Row Have Mental Impairments, History of Severe Trauma, or Were Under 21 at Offense

Most of the prisoners on Oregon's death row suffer from significant mental impairments, according a study released on December 20, 2016 by the Fair Punishment Project at Harvard University. The Project's analysis of case records, media reports, and opinions of Oregon legal experts found that two-thirds of the 35 people on the state's death row "possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred." The report argues that these characteristics make the prisoners less culpable than the average offender. "[T]he U.S. Supreme Court has held that regardless of the severity of the crime, imposition of the death penalty upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults, would be so disproportionate as to violate his or her 'inherent dignity as a human being,'" the report says, drawing parallels between those classes and the prisoners included in the report. The study found that 9 of the 35 death row prisoners (26%) "presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome"; approximately one in four exhibited symptoms of mental illness, or had a confirmed mental health diagnosis; one-third suffered some form of severe childhood or emotional trauma of the sort known to affect brain development; and six (17%) were under the age of 21 at the time of the offense. In one case, an Oregon death row prisoner was granted a hearing to determine whether he is intellectually disabled after evidence showed he has a psychotic disorder, partial fetal alcohol syndrome, visible brain defects in his corpus callosum, a low IQ, and deficits in adaptive behavior that left him functioning at the level of a seven-and-a-half-year old child. His co-defendant, a childhood friend who admitted that he had exerted pressure on the first defendant to participate in the crime, was given a life sentence. The report concludes, "These findings raise a legitimate question as to whether Oregon’s capital punishment scheme is capable of limiting application of the death penalty to the most culpable offenders." Oregon currently has a moratorium on executions, and has executed just two people in 40 years.

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