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UPDATE: The U.S. Court of Appeals for the Eleventh Circuit stayed Madison's execution, ordering oral argument on his competency claim. Previously: Alabama is preparing to execute Vernon Madison (pictured) on May 12, as his lawyers continue to press their claim that the 65-year-old prisoner is incompetent to be executed. Defense lawyers say Madison, whom a trial judge sentenced to death despite the jury's recommendation of a life sentence, suffers from mental illness and has additional cognitive impairments, retrograde amnesia, and dementia as a result of strokes in May 2015 and January 2016. The strokes also have caused a significant drop in Madison's IQ, which now tests at 72, within the range the U.S. Supreme Court has recognized as supporting a diagnosis of intellectual disability. In addition, the strokes have left Madison legally blind. In its 1986 decision in Ford v. Wainwright, the Supreme Court ruled it unconstitutional for states to execute mentally incompetent prisoners, whom it defined as people who do not understand their punishment or why they are to be executed. Madison's lawyers have unsuccessfully argued in Alabama's state and federal courts that, because of his mental impairments, he is unable to understand why the state will execute him. An Alabama trial judge ruled earlier this month that Madison is competent, and the court denied his motion for a stay of execution. On May 6, he presented his competency claim to the federal district court, which denied relief on May 10. Madison's lawyers have appealed that ruling. Madison has been on death row for more than 30 years. His conviction for the murder of a white police officer has been overturned twice, once because prosecutors intentionally excluded black jurors from serving on the case and once because the prosecution presented improper testimony from an expert witness. Last week, the U.S. Supreme Court vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Madison's lawyers have sought review of his case in light of Johnson and are also seeking a stay of execution to permit him to litigate the constitutionality of the state's judicial override provisions.
Miami-Dade Circuit Judge Milton Hirsch (pictured) ruled on May 9 that Florida's new death sentencing law violates the state's constitution. Ruling in the case of Karon Gaiter, who is awaiting a capital trial, Judge Hirsch said new law's requirement that at least 10 jurors agree to the death penalty before a defendant can be sentenced to death violated Florida's constitutional requirement that all jury verdicts must be unanimous. "For the ultimate decisions made within the judicial branch of government—guilty or not guilty, life or death—majority rule is insufficient," Hirsch wrote. "We do ask, indeed we insist, that the decisions of capital juries be, in some sense, perfect; for they are, in some sense, final. We ask, indeed we insist, that they reflect the will of all rather than the will of the few or even of the many.... However outrageous a crime, however controversial a case, as Floridians and Americans we ... cannot accede, we will not accede, we have never acceded, to outcomes as to which no more can be said than that some jurors have spoken." Hirsch wrote that the state's previous death penalty statute, which was struck down by the U.S. Supreme Court in Hurst v. Florida, did not raise this constitutional question because the jury's advisory penalty-phase sentencing recommendation "was, in effect, a straw poll" rather than a verdict. Hirsch's decision comes as the Florida Supreme Court considers how Hurst will affect the nearly 400 death row prisoners sentenced under the previous sentencing scheme. The Miami-Dade state's attorney's office said it would appeal Hirsch's ruling.
Just 27% of Houston-area residents prefer the death penalty over life sentences for those convicted of first-degree murder, according to a new report by the Kinder Institute for Urban Research at Rice University. Harris County, the largest county in the Houston metropolitan area, "earned its reputation as the 'death penalty capital of America,'” the report says, "having executed more people since 1976 ... than any other county in the nation." At its peak, Harris County sentenced 44 people to death during a three-year period (1994-1996). However, declining public support for capital punishment has contributed to a drop in the number of death sentences the county imposes. Over the last three years, five people were sentenced to death in Harris County, with no new death sentences imposed in 2015. Texas is experiencing a similar statewide trend: while the state imposed a high of 48 death sentences in 1999, it imposed only two new death sentences in 2015. The percentage of Houston residents who consider the death penalty the most appropriate punishment for murder has "dropped steadily," the report says, including a decline of 12 percentage points since 2008. It attributes the erosion of support for the death penalty to "recent revelations of discriminatory sentencing, innocent persons being freed from Death Row just before their scheduled executions, and botched lethal injections," along with the comparatively greater costs of seeking the death penalty, rather than life imprisonment, which the report says "have risen dramatically." (Click image to enlarge.)
Thirty years after the U.S. Supreme Court's 1986 decision in Batson v. Kentucky prohibited the intentional exclusion of prospective jurors on the basis of race, discrimination in capital jury selection continues to plague the administration of the death penalty across the country. In articles for The Huffington Post and Slate, Angel S. Harris, assistant counsel at the NAACP Legal Defense and Educational Fund, and Robert Smith, a senior fellow at Harvard Law School's Charles Hamilton Houston Institute for Race and Justice, link the continuing exclusion of black jurors in death penalty cases to the legacy of lynching in America. "While Black men are no longer lynched before all-white crowds gathered on the courthouse lawn," as was one of Harris' relatives in Florida, "Black men are all-too-often condemned to death by all-white juries that are produced by prosecutors’ deliberate exclusion of people of color, particularly Black people, from jury service," she wrote. In his Slate article, Smith describes the persistence of race-based use of discretionary strikes by prosecutors in numerous jurisdictions, and notes that "[t]he mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases." He and Harris point to studies in Caddo Parish, Louisiana, and Houston County, Alabama showing systemically discriminatory use of discretionary strikes to remove black jurors from service in death penalty cases, recent cases in which the Nevada Supreme Court found racially discriminatory jury selection in Clark County, as well as race-based jury selection practices in such cities as Dallas and Philadelphia. These practices, Smith says, expose "the inextricable ties between race and the death penalty." The successful exclusion of jurors of color also produces less reliable verdicts, Harris says, pointing to studies showing that because, "compared to diverse juries, all-white juries spend less time deliberating, make more errors, rely on implicit biases and consider fewer alternative perspectives." The U.S. Supreme Court is currently considering Foster v. Chatman (defendant Timothy Foster is pictured), a Georgia death penalty case in which prosecutors struck all the black jurors after highlighting and marking their names on the jury list and ranking them against each other in case "it comes down to having to pick one of the black jurors." Prosecutors then argued to the all-white jury to sentence Foster to death to “deter other people out there in the projects.”
Florida Court to Hear Argument on Impact of U.S. Supreme Court Ruling Declaring Death Penalty Process UnconstitutionalPosted: May 5, 2016
On May 5, the Florida Supreme Court will hear oral argument in the case of Timothy Hurst, whose death sentence was overturned in the U.S. Supreme Court's decision Hurst v. Florida. The state court must determine whether the high court's ruling, which struck down Florida's sentencing scheme, entitles Hurst to a new sentencing hearing, reduces his sentence to life without parole, or requires some other outcome. The case may also decide how the Hurst ruling will affect the nearly 400 people on Florida's death row. Hurst's attorneys say he should have his death sentence reduced because, "persons previously sentenced to death for a capital felony are entitled to have their now-unconstitutional death sentences replaced by sentences of life without parole." That position received support in an amicus brief filed by three former chief justices of the Florida Supreme Court, a former state representative, a former prosecutor, and past presidents of the American Bar Association. The justice and legal experts argue that Hurst "held Florida's death penalty statute unconstitutional," and that in such circumstances Florida law requires all death sentences imposed under the statute to be reduced to life without parole. The state attorney general's office has argued that state law requires blanket imposition of new sentences only if the death penalty itself is declared unconstitutional, and that Hurst only declared Florida's method of imposing the death penalty unconstitutional. Florida has the nation's second-largest death row, with 396 people as of January 1, 2016, before the state legislature rewrote the sentencing procedure to require a unanimous jury finding of at least one aggravating circumstance, and at least a 10-2 vote to impose a death sentence.
This week, two decades-old cases involving men with innocence claims reached final resolution: Louisiana inmate Gary Tyler (pictured) was released after 42 years in prison and Paul Gatling was exonerated in New York more than 50 years after his wrongful conviction. Both men had once faced the death penalty. Tyler was convicted and sentenced to death for the fatal shooting of a 13-year-old white boy in 1974 during a riot over school integration. A white mob had attacked a bus filled with black students, including Tyler. After the shooting, Tyler was arrested on a charge of disturbing the peace for talking back to a sheriff's deputy. The bus and students were searched, but no weapon was found. Police later claimed to have found a gun on the bus during a later search. That gun turned out to have been stolen from a firing range used by the sheriff's department. Tyler was convicted and sentenced to death by an all-white jury when he was 17 years old. His death sentence was overturned after the U.S. Supreme Court ruled Louisiana's mandatory death penalty statute unconstitutional in 1976, and his life sentence was recently overturned after the Supreme Court barred mandatory life sentences for juvenile offenders. Tyler was released on April 29, after the district attorney's office agreed to vacate his murder conviction, allow him to plead guilty to manslaughter, and receive the maximum sentence of 21 years, less than half the time he had already served. Mary Howell, one of Tyler's attorneys, said, "This has been a long and difficult journey for all concerned. I feel confident that Gary will continue the important work he began years ago while in prison, to make a real difference in helping to mentor young people faced with difficult challenges in their lives." On May 2, 81-year-old Paul Gatling was exonerated. Brooklyn prosecutors charged Gatling with capital murder in 1963 despite the fact that he did not fit the description of the killer and no physical evidence linked him to the killing. He pled guilty to second-degree murder after his lawyer told him he would get the death penalty if the case went to trial. Governor Nelson Rockefeller commuted Gatling's sentence in 1974 and he was released from prison, but he continued to seek exoneration, in part, because his conviction prevented him from voting. Brooklyn District Attorney Ken Thompson, whose Conviction Review Unit reinvestigated the case, said, "Paul Gatling repeatedly proclaimed his innocence even as he faced the death penalty back in the 60s. He was pressured to plead guilty and, sadly, did not receive a fair trial.... We're here because Mr. Gatling would not let go of his demand to be deemed innocent."
U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing ProcedurePosted: May 3, 2016
The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury.
A Florida trial judge in St. Lucie County sentenced Eriese Tisdale to death on April 29 for the killing of a sheriff's sergeant, relying on sentencing procedures from the version of Florida's death penalty law that the U.S. Supreme Court declared unconstitutional in Hurst v. Florida. The jury in Tisdale's case considered the evidence in the penalty phase of Tisdale's trial under the old Florida law, voting 9-3 to recommend a death sentence without specifying the aggravating factors that would make Tisdale eligible for the death penalty. The Supreme Court struck down Florida's sentencing procedure in Hurst because a judge, rather than a jury, made the factual determination of aggravating circumstances that were necessary to impose a death sentence. In response to Hurst, Florida enacted a new law, which went into effect March 7, requiring juries to make unanimous determinations of aggravating factors, and preconditioning any death sentence upon a jury vote of at least 10-2 vote in favor of death. The statute declares "If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole." In those circumstances, the law states, "the court shall impose the recommended sentence." Tisdale's penalty phase was tried in October 2015, before the Supreme Court declared the sentencing procedures unconstitutional, and the jury's 9-3 recommendation for death came before the new law adopted the 10-2 requirement. His lawyers argued that he could not be sentenced to death because the old procedures were unconstitutional and the jury vote did not qualify as a death recommendation under the new law. But a St. Lucie County judge ruled that the jury's unanimous vote to convict Tisdale for the murder of a law enforcement official amounted to a unanimous finding of an aggravating circumstance, accepted the jury's 9-3 death recommendation, and sentenced Tisdale to death. Tisdale is the first person sentenced to death in Florida since the new law went into effect.
On April 24, just days before a Texas federal appeals courts was to hear his case, Max Soffar — who spent 35 years on death row constantly maintaining his innocence — died of liver cancer at the age of 60. No physical evidence linked Soffar to the crime for which he was sentenced to death, and Soffar — a seventh-grade drop-out with brain damage from fetal alcohol syndrome — said that he confessed to police only after hours of coercive questioning. In a 2014 interview, Soffar said, "Everything in those statements that I made does not match the crime scene. It’s all made up off the top of my head." After Soffar's first conviction was overturned in 2006, he tried to present evidence at his retrial that the murder had been committed by another man who was later convicted of similar murders in Tennessee. The trial court excluded the evidence, a witness to whom that man had allegedly confessed did not testify after prosecutors threatened to try him for murder, and Soffar was again convicted and sentenced to death. Soffar then petitioned Governor Rick Perry for clemency in 2014, receiving support from former FBI director William Sessions and former Texas Governor Mark White. The U.S. Court of Appeals for the Fifth Circuit recently granted Soffar permission to appeal the U.S. District Court's 2014 denial of a writ of habeas corpus. His hearing in that appeal was scheduled for April 27. Andrew Horne, an attorney for Soffar, said "[h]is confession was demonstrably false. There was evidence another man committed the crime." Horne added, "Max was very excited about the Fifth Circuit ruling, very optimistic.... I’m glad he’s not suffering anymore, but I’m frustrated that he didn’t get his rights vindicated. He protested his innocence to the last.”
More than 80% of the 241 death sentences imposed in Louisiana since 1976 have been reversed on appeal, and one death row prisoner has been exonerated for every three executions in the state, according to a new study by University of North Carolina-Chapel Hill Professor Frank Baumgartner and statistician Tim Lyman. The study, to be published in the Southern University Law Center’s Journal of Race, Gender and Poverty, also reveals dramatic racial disparities in both the trial and appellate stages of Louisiana death penalty proceedings. The study notes that 155 of the state's 241 death sentences have reached a final resolution: either a reversal or an execution. Of these death sentences, there have been 28 executions (18.1%) and 127 reversals (81.9%) — including 9 exonerations — giving Louisiana a reversal rate nine percentage points higher than the 72.7% average for death penalty cases nationwide. The researchers also found stark racial disparities in Louisiana's death penalty related both to the race of the victim and to the race of the defendant. Cases involving white victims were six times more likely to result in death sentences than cases involving black victims, and black male defendants charged with killing white female victims were 30 times more likely to be sentenced to death than were black male defendants charged with killing black male victims. The study also found that appellate courts were less likely to overturn death sentences in cases involving white victims than those involving black victims, compounding the racial disparities already present in the sentencing stage of the case. As a consequence, a defendant charged with killing a white victim was 14 times more likely to be executed than if the victim was black. The last time Louisiana carried out the death penalty against a white person for a crime involving a black person was in 1752, when the defendant was executed for damaging the property of another white man by stabbing two female slaves. The authors explained, "Race-of-victim effects are powerful at each stage of the death penalty system, accumulating as we move from the original sentence through to execution." Baumgartner said of his findings, “We have to look the death penalty in the eye and understand how it truly does function. Not how we wished it functioned but how it really does function. And every time we do that, it really is disturbing.” (Click image to enlarge, image by The New Orleans Advocate.)