ANALYSIS: Do Recent Connecticut and U.S. Supreme Court Decisions Portend Downfall of Capital Punishment?Posted: September 3, 2015
In an op-ed for The New York Times, Pulitzer Prize winning legal commentator Linda Greenhouse analyzes the significance of and interplay between the recent Connecticut Supreme Court decision striking down the state's death penalty and Justice Stephen Breyer's dissent in the U.S. Supreme Court case Glossip v. Gross. "[T]he Connecticut Supreme Court not only produced an important decision for its own jurisdiction; but it addressed the United States Supreme Court frankly and directly," Greenhouse says. "The decision engages the Supreme Court at a crucial moment of mounting unease, within the court and outside it, with the death penalty’s trajectory over the nearly four decades since the court permitted states to resume executions." As posed by the Connecticut court, the question is whether the broad discretion afforded to prosecutors and juries over whether to seek or impose the death penalty "inevitably allows in through the back door the same sorts of caprice and freakishness that the court sought to exclude" when it held U.S. death penalty statutes unconstitutional in 1972, "or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing." Justice Breyer's dissent similarly observed, “In this world, or at least in this nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both.” Greenhouse concludes, "[F]rom two courts, the highest in the land and the highest court of one of the smallest states, a fruitful conversation emerged this summer that will inevitably spread, gain momentum and, in the foreseeable if not immediate future, lead the Supreme Court to take the step that I think a majority of today’s justices know is the right one."
The Dutch public employees' pension fund, Stichting Pensioenfonds ABP (ABP), has divested from the pharmaceutical company Mylan after learning that the Virginia Department of Corrections had supplies of one of Mylan's products in stock for use in executions. A spokesman for ABP - which with net assets of $416 billion is the world's third largest pension fund - said, "As the Dutch government and Dutch society as a whole renounced the death penalty a long time ago, we do not want Dutch pension money to be involved in that." Although Mylan states on its website that its products are not intended for use in executions, fund managers were not satisfied with the company's measures to keep the drugs out of lethal injections. ABP held €25 million shares in Mylan in 2014, but began selling them off during 9 months of unfruitful discussions with the company. ABP says it sold its remaining €9 million ($10 million) Mylan holdings in full because "We thought we have only one step left to show our disapproval." The divestment is part of ongoing efforts by European officials to discourage executions in the U.S., which the European Union regards as a human rights violation. European companies are banned from exporting drugs for use in executions, and several European drug companies have put distribution restrictions in place to stop their products from being used in lethal injection.
On August 31, the U.S. Court of Appeals for the Ninth Circuit heard argument in Jones v. Davis, an appeal by California of the 2014 U.S. District Court ruling that declared California's death penalty unconstitutional. In 2014, U.S. District Court Judge Cormac Carney held that the decades-long delays caused by California's failure to provide lawyers for nearly 350 of its death-row prisoners made its death penalty system unconstitutionally cruel and unusual. He said that the “random few” whom California eventually executes - to date, just 13 out of more than 900 individuals sentenced to death - “will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.” Lawyer Michael Laurence (pictured, left), representing death row inmate Ernest Dewayne Jones, called the state's death penalty system "dysfunctional." He argued that California's death penalty produces the same type of arbitrary outcomes that led the Supreme Court to invalidate death penalty statutes nationwide in 1972 in the landmark case of Furman v. Georgia. Lawyers from the California Attorney General's Office argued that the delays in this case are different from the issues presented to the Court in Furman and that the lengthy appeals process is evidence of careful efforts to protect the constitutional rights of people who have been sentenced to death. The Ninth Circuit must decide whether to address the substance of Jones' claim or sidestep the issue on procedural grounds. If it upholds Judge Carney's ruling, the sentences of more than 700 people on California's death row could be overturned and replaced with sentences of life without parole.
STUDIES: Louisiana Study Reports Stark Death-Penalty Disparities Linked to Race and Gender of VictimsPosted: August 31, 2015
A new study by Professor Frank Baumgartner of The University of North Carolina at Chapel Hill and Tim Lyman, a Documentation Specialist in New Orleans, reports stark disparities in Louisiana death sentences and executions depending upon the race and gender of the homicide victim. The study - to be published in the Loyola University of New Orleans Journal of Public Interest Law - finds that defendants accused of killing white victims are nearly twice as likely to be sentenced to death and nearly four times as likely to be executed than defendants accused of killing black victims. The disparities are even greater when both race and gender are compared. Defendants accused of killing white women are sentenced to death at nearly 12 times the rate of defendants accused of killing black men (56.94 vs. 4.88 death sentences per 1,000 homicides), and executed at a rate that is 48 times higher (11.52 vs. 0.24 executions per 1,000 homicides). The authors find that both the race and gender of victims affect sentencing outcomes in murder cases, but that death sentencing and execution rates are higher in cases involving white victims, irrespective or gender, and in cases involving female victims, irrespective of race. 72% of murder victims in Louisiana since 1976 have been black, but just 33% of death sentence have involved black victims. Cases involving black male victims had the lowest rate of death sentences and executions per homicide of any class of victim. 12,693 black males have been murdered in Louisiana since 1976 (61% of murder victims), with only 3 executions (0.02% of these murders; 8% of Louisiana executions). (Click image to enlarge)
A Colorado jury has returned a life sentence in the capital trial of Dexter Lewis in the stabbing deaths of 5 people in a Denver bar in 2012. After less than 3 hours of deliberation, the jury determined that the aggravating factors relating to the killing did not outweigh Lewis' mitigating evidence detailing the extensive history of abuse and neglect in his upbringing, including chronic alcohol abuse by his mother while she was pregnant and nearly daily beatings when he was a child. The defense also presented mental health evidence of the long-term effects of severe child abuse. After the verdict, Prosecutor Joe Morales (pictured, left) called the verdict "a great day for justice" and said the prosecutors "respect [the verdict] wholeheartedly." He added that "if you cannot get 12 people to agree beyond a reasonable doubt that a person should lose their life for their crimes, then it should not be imposed.... No criticism [of the verdict] needs to come from anyone who did not sit day in and day out in that courtroom. Period." No Denver jury has sentenced a defendant to death since 1986. Colorado has had no executions since 1997 and is one of four states that has placed a moratorium on executions. Governor Hickenloper has called for a statewide "conversation" about the death penalty. The sentence comes in the wake of a string of life sentences imposed in other high profile capital cases after long and expensive trials.
The U.S. Court of Appeals for the Fifth Circuit rejected an appeal in the case of Texas death row inmate Duane Buck, who argued that his trial was tainted by ineffective representation and racial bias when Buck’s own mental health expert testified that he could be a future danger to society because he is black. Dr. Walter Quijano, a clinical psychologist, testified in the sentencing phase of Buck's case on the issue of future dangerousness. The prosecutor asked Quijano, "You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and the race factor, black, increases the future dangerousness for various complicated reasons, is that correct?" Quijano answered, "Yes." Buck, who is black, was sentenced to death. Buck's case was one of six capital cases identified in 2000 as tainted by Quijano's testimony. The other five have had new sentencing hearings, but Buck has not. Buck presented 11 arguments in his appeal, but the court said, "Jurists of reason would not debate that Buck has failed to show extraordinary circumstances justifying relief." Attorneys for Buck said, "This decision can only deepen the growing skepticism of the fairness of the criminal justice system. No competent capital defense attorney would invite the sentencing jury to make a life-or-death decision based on racial fears and stereotypes and no court should enforce a judgment in which race was explicitly proffered as the basis for a death sentence."
The Kansas Federation of College Republicans unanimously adopted a resolution calling for repeal of the death penalty in their state. “More young conservatives like myself recognize that our broken and fallible system of capital punishment in no way matches up with our conservative values,” said Dalton Glasscock, a Wichita State University student and chairman of the federation. Citing pro-life views and fiscal responsibility, the group urged Kansas legislators to repeal the state's death penalty. Eric Pahls, president of Kansas University College Republicans, said, "I think if, as Republicans, we call ourselves pro-life, that is from birth through natural death, not from birth until we decide your life is less important or less valuable." Glasscock and Pahls think there is a generational shift in views about the death penalty among young Republicans. A recent Pew Research Center poll indicated that death penalty support is weakest among younger Americans, among whom it has dropped by 8 percentage points since 2011. The federation joins the Republican Liberty Caucus of Kansas, who last year announced support for repeal of capital punishment. The Kansas Republican Party has dropped death penalty support from its platform, and now takes a neutral stance on the issue. Kansas has not carried out any executions since it reinstated the death penalty in 1994.
In an op-ed for Newsweek, Stanford Law Professor John Donohue argues that there is "not the slightest credible statistical evidence that capital punishment reduces the rate of homicide" and presents data to show that the death penalty is not an effective deterrent. Comparisons between neighboring jurisdictions show no effect of capital punishment: "Whether one compares the similar movements of homicide in Canada and the U.S., when only the latter restored the death penalty, or in American states that have abolished it versus those that retain it, or in Hong Kong and Singapore (the first abolishing the death penalty in the mid-1990s, and the second greatly increasing its usage at the same), there is no detectable effect of capital punishment on crime." He cites a 2012 study by the National Academy of Sciences, which, "concluded that there was no credible evidence that the death penalty deters homicides." He also appeals to the psychology of crime and punishment: "Since murderers typically expose themselves to far greater immediate risks, the likelihood is incredibly remote that some small chance of execution many years after committing a crime will influence the behavior of a sociopathic deviant who would otherwise be willing to kill if his only penalty were life imprisonment." Donohue argues that a more effective way of reducing murders "is to take the resources that would otherwise be wasted in operating a death penalty regime and use them on strategies that are known to reduce crime," such as improved policing. Donohue concludes, "With zero evidence that the death penalty provides any tangible benefits and very clear indications of its monetary, human and social costs, this is one program about which there can be little debate that its costs undeniably outweigh any possible benefits."
(UPDATE: The Texas Court of Criminal Appeals has granted Bernard Tercero a stay of execution to permit him to litigate evidence that a lead prosecution witness testified falsely against him.) The Inter-American Commission on Human Rights (IACHR), a unit of the Organization of American States, has called on Texas officials to stay the execution of Nicaraguan citizen Bernardo Tercero (pictured), who is scheduled to be executed in Texas on August 26. Under international treaties on consular relations, foreign citizens (including Americans abroad) must be afforded access to their government's consulate at the time of their arrest. The IACHR has ruled that Texas' failure to respect these treaty obligations denied Tercero "his right to consular notification and assistance [and] deprived him of a criminal process that satisfied the minimum standards of due process and a fair trial" required under Inter-American human rights treaties. The IACHR also concluded that Tercero's court-appointed counsel "committed serious mistakes that affected his right to defense" and that procedural rulings by the courts in his case denied Tercero the "possibility to have his sentence effectively reviewed." The Organization of American States issued a statement saying that, "Should the state of Texas carry out this execution, it would be committing a serious and irreparable violation of the basic right to life" guaranteed in American human rights instruments. As of June 9, 2015, 139 foreign nationals were on death rows across America, with 61 in California and 22 in Texas.
In the first episode of season 2 of "Death Row Stories," CNN examined the case of Ruben Cantu, who was executed in Texas in 1993 despite serious doubts about his guilt. The episode featured an interview with Sam Milsap, the District Attorney at the time of Cantu's trial, who asserted his belief in Cantu's innocence. Cantu's co-defendant and a key eyewitness from the case both supported Cantu's claim of innocence. The hour-long episode of the documentary series recounted how Lise Olsen, an investigative reporter for the Houston Chronicle, raised questions about the case and eventually convinced Milsap that Cantu was not guilty. "Death Row Stories" is produced by Robert Redford and narrated by Susan Sarandon. It airs Sundays at 10 pm. Other episodes this season include the stories of Randy Steidl and Seth Penalver, who were exonerated and freed from death row.