NEW VOICES: Citing Innocence, Misconduct, Creator of Lethal Injection Protocol Calls Death Penalty "Problematic"Posted: May 1, 2015
Dr. Jay Chapman (pictured), the Oklahoma medical examiner who created the three-drug lethal injection protocol that was used from 1982 to 2010, recently told The Guardian that he has doubts about the death penalty.“I am ambivalent about the death penalty – there have been so many incidents of prosecutorial misconduct, or DNA testing that has proved a prisoner’s innocence. It’s problematic," Chapman said. He said he believed lethal injection would be a more humane method of execution, "At that time we put animals to death more humanely than we did human beings – so the idea of using medical drugs seemed a much better alternative.” He found it odd that his name has become so closely associated with lethal injection, saying, “This wasn’t my field, and it wasn’t my purpose in life – I’m a forensic pathologist and my main purpose was to set up a medical examiner’s system for Oklahoma, which is what I did.” Ultimately, concerns about wrongful convictions have given him qualms about capital punishment: “I’ve done autopsies for 50 years and I know what people are capable of doing to others. There are some criminals who have no redeeming features and who will never be rehabilitated – in those cases I would support the death penalty. But I’ve also seen the misconduct that can occur, and the problem is: how do you sort out one from the other?”
In an article for the University of Richmond Law Review, Stephen Bright (pictured), President and Senior Counsel at the Southern Center for Human Rights, describes the arbitrary factors that continue to influence the death penalty. Bright first describes the historical context that led the Supreme Court to strike down the death penalty in 1976. He draws comparisons between lynchings, which he says were "used to maintain racial control after the Civil War," and capital punishment, which in 1976 "was very much tied to race - the oppression of African Americans, carried out by this country's criminal courts." He then explains how this legacy of racial bias continues today, saying, "The race of the defendant and the race of the victim continue to influence the imposition of the death penalty. The courts remain the part of American society least affected by the civil rights movement of the mid-twentieth century." Bright also addresses bias against the poor, and those with mental illness and intellectual disabilities. He concludes, "What purpose is the primitive penalty of death serving in a modern society? When we look closely at the issues - race, poverty, arbitrariness, conviction of the innocent, mental illness, and intellectual disability - from both a moral and practical standpoint, it will not be long before we join South Africa and the rest of the civilized world in making permanent, absolute, and unequivocal the injunction: 'Thou shall not kill.'"
On April 29, the U.S. Supreme Court heard oral argument in Glossip v. Gross, a case challenging the use of midazolam in lethal injections. Midazolam was used as the first drug in three botched executions in 2014, including the execution of Clayton Lockett in Oklahoma exactly one year ago. Prisoners on Oklahoma's death row argued that midazolam should not be used in executions because it could not reliably anesthesize the prisoner to prevent him or her from experiencing extreme pain when the second and third drugs in Oklahoma's execution protocol were injected. The Justices questioned both sides intensely, with the more conservative justices generally favoring the state's arguments and the more liberal justices favoring the prisoners' arguments. Justice Elena Kagan compared the effects of potassium chloride, the third execution drug, to being burned alive, saying, "Suppose that we said we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects." Conservatives on the Court criticized the case as a veiled attacked on the death penalty itself. The Court is expected to decide the case before the current term ends in June.
In a case spotlighting issues of mental illness and the death penalty, the Florida Supreme Court on April 23 unanimously overturned the death sentence imposed on a severely mentally ill death-row inmate, Humberto Delgado (pictured). Delgado, who was convicted of killing a Tampa police officer, will be resentenced to life without parole. The court said, "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions. However … we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases." Delgado had a history of delusions and psychotic behavior before the crime, including believing that police were out to kill him and that people were following him and sitting in trees outside his home. Delgado's attorneys pointed out that, because Delgado shot the police officer only after the officer had used a Taser, there was a lack of premeditation. Tampa police Chief Jane Castor released a statement in response to the decision, saying, "We respect the justice system and those who have to make tough decisions. Regardless of the conclusion, it doesn't bring Mike back and it doesn't relieve the pain that his wife, son and his TPD family feel. His life sentence will still ensure he is held accountable for his actions."
Nebraska's unicameral legislature recently voted 30-13 in favor of repealing the State's death penalty, advancing the bill to a second round of legislative review. (In Nebraska, a bill must pass three times before it is sent to the Governor.) A majority (17 out of 30) of Republican legislators voted in favor of the bill, which was also supported by 12 Democrats and one Independent legislator. Sen. Colby Coash (R-Lincoln), said, "If any other system in our government was as ineffective and inefficient as is our death penalty, we conservatives would have gotten rid of it a long, long time ago." Sen. Tommy Garrett (R-Papillion) said he was once a "staunch proponent" of capital punishment, but, "I’ve come to believe that the death penalty is simply not good government.” A Washington Times op-ed by conservative commentator Drew Johnson noted that Nebraska's repeal bill has support from victims' families, the Catholic Bishops of Nebraska, and Nebraska Conservatives Concerned about the Death Penalty. Johnson also pointed to the DNA exonerations of the "Beatrice Six," who gave coerced confessions and pleas after being threatened with the death penalty, as evidence that "government has no business exercising the power to kill its residents, whether in Nebraska or elsewhere." A recent Pew poll showed that support for the death penalty among conservative Republicans had dropped by 7 percentage points since 2011.
Four retired death-row prison officials - two wardens, a chaplain, and an execution supervisor - recently described the effect that carrying out executions has had on them. Frank Thompson (pictured), who served as a warden in Oregon and Arkansas, said he believed in capital punishment until he thought "about those flaws in the back of my mind that I knew existed with capital punishment. It’s being administered against the poor; it lacks proof that it deters anything." He trained his staff to carry out executions, but, "I realized that I was training decent men and women how to take the life of a human being. In the name of a public policy that after all these years couldn’t be shown to increase the net of public safety." Terry Collins spent over 32 years working in corrections, including time as the director of the Ohio Department of Rehabilitation and Correction. He said seeing exonerations gave him concerns about the death penalty: "[T]the system does make mistakes. I don’t think you can make a mistake when you’re talking about somebody’s life." Jerry Givens, who oversaw 62 executions in Virginia, raised similar concerns, "I knew the system was corrupted when we exonerated Earl Washington Jr. from death row...You have two types of people on death row. The guilty and the innocent. And when when you have the guilty and the innocent, you shouldn’t have death row." Rev. Carroll Pickett was a chaplain on Texas's death row for 15 years and during 95 executions. He commented, "Standing by the gurney almost 100 times, and watching innocent men killed, watching repentant men killed, and seeing the pain among families and men and my employee friends, cannot leave my memories."
In a recent op-ed in The Hill, three leading pharmacists wrote in support of the resolution by the American Pharmacists Association (APhA), discouraging pharmacist participation in executions. Leonard Edloe, former CEO of Edloe's Professional Pharmacies, William Fassett (pictured), professor emeritus of pharmacology at Washington State University, and Philip Hantsen, professor emeritus at the University of Washington School of Pharmacy, wrote, "The healthcare community is now united in opposition to involvement in lethal injection, a form of execution that masquerades as a medical procedure yet violates core values of all healing professions." They warned that lethal injections without the appropriate drugs, personnel, and procedures, would be "brutal and unpredictable charades that shame this nation." The op-ed emphasized the overwhelming support of APhA members in adopting the resolution: "While APhA was engaged in developing the policy revision, problems associated with using experimental drug protocols became glaringly visible, particularly after the Clayton Lockett execution debacle in Oklahoma. By the time the APhA House of Delegates met in March 2015, there was very little disagreement among APhA member pharmacists that the proposed policy should be adopted, and no House of Delegates member spoke against its passage during final deliberations." Read the op-ed below.
(Click image to enlarge) The Atlantic reports that death sentences are heavily concentrated in a small number of heavy-use counties. According to DePaul University law professor Robert J. Smith, "1 percent of counties accounts for roughly 44 percent of all death sentences" since the reinstatement of the death penalty in 1976. Death-sentencing rates in those counties are not a product of their population or murder rates, Smith points out. For example, from 2004 to 2009, "Miami-Dade County (Florida), which has a population of approximately 2.5 million, only sentenced four people to death, whereas Oklahoma County, which has a population of approximately 750,000, sentenced eighteen people to death." DPIC's 2013 report, "The 2% Death Penalty," found that, "Houston had 8 percent more murders than Dallas, but 324 percent more death row inmates; 15 percent more murders than San Antonio, but 430 percent more death row inmates." The county disparities come from prosecutorial discretion, which allows local prosecutors to determine when to seek the death penalty. In some counties, Washington Post reporter Radley Balko reported, "a toxic culture of death and invincibility" values convictions and death sentences above all else. In 2007, Orleans Parish (Louisiana) Assistant District Attorney James Williams said, "There was no thrill for me unless there was a chance for the death penalty."
Sentence Reversal, Exoneration, and Natural Death More Likely Than Execution For Pennsylvania Death Row InmatesPosted: April 21, 2015
(Click on image to enlarge). According to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions. A Reading Eagle analysis of BJS data from 1973 through 2013 shows that the Commonwealth has executed fewer than 1% of all death-sentenced defendants since 1973, with execution the least likely of 5 possible outcomes for people sentenced to die. Nationally, 16% of those sentenced to death have been executed. The most likely outcome for defendants sentenced to death in Pennsylvania is that their conviction or death sentence will be reversed, as is also the case nationally. However, in Pennsylvania exoneration and death by natural causes or suicide are also more common than execution. Since 1994, when death sentences peaked in Pennsylvania, the average number of removals from death row per year has doubled. The Reading Eagle reports that homicides across the state fell to a ten-year low in 2013, a period in which Pennsylvania carried out no executions. Three years ago, the Pennsylvania state legislature ordered a task force to study the state's problems in applying capital punishment, including costs, fairness in sentencing, and quality of representation. That report is expected later this year. Governor Tom Wolf has halted all executions in the state at least until the report is issued and problems are addressed. Recent polls indicate that a majority of Pennsylvanian's now favor some form of a life sentence over the death penalty.
(Click on image to enlarge). The Federal Bureau of Investigation has formally acknowledged that examiners from the FBI Laboratory's microscopic hair comparison unit for decades provided flawed forensic testimony purportedly matching crime scene hair evidence to the hair of defendants charged with those crimes. As part of an ongoing review of inaccurate forensic evidence, the FBI admitted that, In the 268 trials examined so far, its forensic experts systematically overstated the certainty of matches between crime scene hair evidence and defendants' hair. That flawed testimony favored prosecutors more than 95% of the time. The FBI admitted providing inaccurate expert testimony in 32 capital trials in which defendants were sentenced to death, including 10 cases from Florida and 5 each from Pennsylvania and Texas. 9 of the defendants -- including all 5 from Texas -- have since been executed. Studies have shown that inaccurate forensic evidence is frequently present in innocence cases -- and improper hair comparison testimony may already have contributed to at least one wrongful execution. Senator Richard Blumenthal, a former prosecutor, said, “These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law.”