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U.S. on Track for Fewest Executions, New Death Sentences in a Generation

Posted: November 16, 2015

Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.


Appeals Court Overturns Challenge to California Death Penalty on Procedural Grounds

Posted: November 13, 2015

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit has overturned a California federal district court decision that had declared California's death penalty unconstitutional, saying that the issue presented "a novel constitutional rule" that was beyond the power of the federal courts to address in a habeas corpus proceeding. The appeals court did not address the constitutionality of California's death penalty, saying that because of technical procedural rules "we may not assess the substantive validity of [this] claim." U.S. District Court Judge Cormac Carney had ruled in 2014 in the case of Ernest D. Jones that the lengthy delays and arbitrariness in California's death penalty system rendered it unconstitutionally cruel and unusual. Judge Susan P. Graber (pictured), who wrote the 9th Circuit's decision, said, "Many agree with petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary." However, she said "the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing re-examination of final judgments based upon later emerging legal doctrine." California has the largest death row in the nation, but has carried out only 13 executions since 1978, and none since 2006. Jones has been on California's death row since 1995. The appeals court decision sends the case back to the district court to address other challenges to the constitutionality of Jones' conviction and death sentence that Judge Carney did not decide when he declared California's death penalty unconstitutional. 


Oklahoma Execution Irregularities Mirror Previous Errors By Arizona Involving Same Corrections Official

Posted: November 12, 2015

Robert Patton (pictured), the director of the Oklahoma Department of Corrections who oversaw the botched execution of Clayton Lockett, the use of the wrong third drug in the execution of Charles Warner, and the failed execution of Richard Glossip, was also involved in a number of Arizona executions that violated that state's execution protocol, a BuzzFeed investigation revealed. Lockett was Oklahoma's first execution under Patton, just two months after he became corrections director. For the previous five years, he was part of the team that planned and oversaw executions in Arizona. A 2011 deposition given by Patton in a federal court challenge to Arizona's execution protocol disclosed similar failures to adhere to state execution protocols. BuzzFeed reports that, 3 years before the Lockett execution, Patton had been involved in several Arizona executions in which corrections personnel could not find an arm vein suitable for execution and instead, as in Lockett's execution, inserted the IV into an artery in the executed prisoner's groin. In direct violation of Arizona's execution protocol, the executioners covered the IV with a sheet, risking that officials would be unable to detect problems with the IV. In investigating the Lockett case, the Oklahoma Department of Public Safety found that the same deviation from Oklahoma's protocol prevented executioners from discovering problems with the IV until Lockett began to move during the execution, at which point prison personnel discovered clear liquid and blood under the sheet and noticed that Lockett had swelling "between the size of a golf ball and tennis ball" at the IV insertion site. Patton then called off the execution, but Lockett died 45 minutes after the execution began. In his 2011 deposition, Patton admitted that he never checked the forms that identified which drugs and what amounts of those drugs were to be used in Arizona executions. In January 2015, using the wrong third drug in its three-drug protocol, Oklahoma executed Charles Warner. An investigation into that execution is ongoing, and state officials have not said who was aware at the time that the wrong drug was being used. The state also halted the execution of Richard Glossip in September when prison officials became aware two hours before the execution that they had obtained the same wrong drug.


NEW VOICES: Retired Generals Call for Review of Status of Military Veterans Facing Death Penalty

Posted: November 11, 2015

In an op-ed for USA Today, three retired generals call for systemic review of the status of veterans on death row nationwide and urge decision-makers in capital cases to seriously consider the mental health effects of service-related PTSD in determining whether to pursue or to impose the death penalty against military veterans. Calling DPIC's new report, "Battle Scars: Military Veterans and the Death Penalty," "a wake-up call for an issue that few have focused on," Brigadiers General (Ret.) James P. Cullen, David R. Irvine, and Stephen N. Xenakis write that "[c]ountless veterans have endured violence and trauma that few others can fully imagine" but defense attorneys in capital cases "are often not adequately prepared to investigate and present" this evidence and prosecutors and judges often treat it dismissively. They say that, "at a minimum, when a judge or jury is weighing a person’s life or death, they should have full knowledge and understanding of that person’s life history. Veterans with PTSD — and, in fact, all those with serious mental illness at the time of their crime — deserve a complete investigation and presentation of their mental state by the best experts in the field." Citing DPIC's report, the generals discuss the cases of Andrew Brannan, James Davis, and John Thuesen, who suffered from combat-related PTSD but were sentenced to death without adequate consideration of their conditions. They contrast the often untreated "deeply debilitating" long-term wounds of combat PTSD to the physical wounds for which veterans do receive treatment. "PTSD can be treated," they write, "but in one study only about half of the veterans who needed treatment received it." They conclude with a call to action. "We should begin by determining the exact scope of this problem: Who are the veterans on death row? How could their military experience have affected their commission of a crime? How well were their disabilities investigated and presented in court? And what should be done when the system fails them? Veterans facing the death penalty deserve this assistance." (Click image to enlarge.)


DPIC Releases New Report, "Battle Scars: Military Veterans and the Death Penalty"

Posted: November 10, 2015

On November 10, on the eve of Veterans' Day, the Death Penalty Information Center released a new report, Battle Scars: Military Veterans and the Death Penalty. The report examines the plight of U.S. military veterans who have been sentenced to death, estimating that about 300 veterans are currently on death row. Many of these veterans suffer from Post-Traumatic Stress Disorder (PTSD) or other mental disabilities caused or exacerbated by their time in combat. Often when these veterans were on trial facing the death penalty, their military service and related illnesses were barely presented to the jury. The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with PTSD, who had been granted 100% disability by the Veterans Administration. His combat trauma was largely unexplored at trial, and the Georgia Pardons Board denied him clemency. DPIC's press release noted: "As the country prepares to honor its military veterans on November 11, it may be a sobering and surprising revelation that many veterans have been adjudged as 'the worst of the worst,' condemned to death, and executed by the government they once served." The report urges more attention be paid to veterans facing execution: "Early intervention, peer assistance from veterans, and involvement of veteran officials with prosecutors, defense attorneys, and judges could all be instrumental in steering a case away from the death penalty," the report states.


United Kingdom Marks 50th Anniversary of Death Penalty Abolition

Posted: November 9, 2015

On November 8, 1965, 50 years ago, the United Kingdom abolished capital punishment. On that date, Parliament transmitted to Queen Elizabeth II for royal assent the Murder (Abolition of Death Penalty) Act of 1965. The Act, which ended capital punishment in England, Wales, and Scotland subject to Parliamentary review after 5 years, took effect on November 9, 1965. When Parliament confirmed the Act in December 1969, the abolition of capital punishment in the United Kingdom became permanent. The movement to end the death penalty in the U.K. was spurred by three controversial executions in the 1950s. In 1950, Timothy Evans was wrongfully executed for the murder of his wife and young child. His neighbor, John Christie, who testified against Evans, was later found guilty of six other murders and confessed to killing Evans' family. Evans was given a posthumous royal pardon in 1966. In 1953, Derek Bentley was executed for the murder of a police officer during a robbery, although the actual killer was a teenager who was ineligible for capital punishment and Bentley was at most an accomplice to the robbery. Bentley's conviction was posthumously overturned in 1998. Finally, in 1955, Ruth Ellis was executed for killing her abusive lover. Her execution drew widespread public outrage and more than 50,000 people signed petitions unsuccessfully seeking a reprieve for Ellis. 


UN Secretary-General: "I Will Never Stop Calling for an End to the Death Penalty"

Posted: November 6, 2015

Calling the punishment "simply wrong," United Nations Secretary-General Ban Ki-Moon has vowed to "never stop calling for an end to the death penalty." Speaking at the launch of a new book by the Office of the UN High Commissioner for Human Rights, "Moving Away from the Death Penalty: Arguments, Trends and Perspectives," the Secretary-General highlighted the worldwide decline of capital punishment, noting that "more and more countries and States are abolishing the death penalty." Data from the book confirms these trends: in 1975, about 97% of countries were carrying out executions, as compared to only 27% today. Ban Ki-Moon appeared alongside Kirk Bloodsworth, the first death-sentenced person in the U.S. to have been exonerated by DNA evidence. The Secretary-General said of Bloodsworth, "[Mr. Bloodsworth] represents the reason we are here today. He is totally innocent of any crime. But like too many other people, he suffered the unforgiveable injustice of a death sentence…I am conscious that he says he was not exonerated because the system worked but because of a series of miracles." Bloodsworth explained his reasons for supporting abolition by saying, "It’s very simple: if it can happen to me it can happen to anyone; in America or anywhere. What I’m saying is that an innocent person can be executed and that should never happen. If it can happen to me it can happen to anybody anywhere in the world."  


History of Misconduct Chronicled in Oklahoma County With 41 Executions

Posted: November 5, 2015

Oklahoma County has executed 41 prisoners since 1976, the third highest in the country, and is among the 2% of American counties responsible for 56% of the men and women currently on the nation's death rows. A ThinkProgress report chronicles the decades-long pattern of misconduct committed under its long-time District Attorney "Cowboy Bob" Macy (pictured). Macy sent 54 people to death row during his 21 years as District Attorney, more than any other prosecutor in the U.S. in that period. “Macy would pretty much do whatever it took to win,” including making inflammatory arguments and routinely withholding exculpatory evidence, says David Autry, an Oklahoma County public defender from the Macy era. 23 of the Macy capital convictions relied heavily on the testimony of disgraced police chemist Joyce Gilchrist, whom an FBI investigation in 2001 concluded had offered testimony "that went beyond the acceptable limits of science.” An internal police investigation discovered that evidence in many of Gilchrist's major cases was missing, along with three years of her blood analysis files. In the case of Curtis McCarty, one of three death-row exonerees prosecuted under Macy, Gilchrist falsely testified that hairs found at the crime scene matched McCarty's and that his blood type matched the semen found on the victim's body. A later investigation revealed that Gilchrist had altered her notes to implicate McCarty and that the hairs she had tested were missing. McCarty was exonerated in 2007 after independent DNA testing excluded him as a suspect. Almost half of the 23 people who were sentenced to death in trials where Gilchrist testified were executed before their cases could be reviewed and ThinkProgress reports that as many as 38 of those Macy sent to death row have been executed.


Deadliest Prosecutors, Worst Defense Lawyers Linked to High Rates of Death Sentences in Heavy-Use Counties

Posted: November 4, 2015

Prisoners sentenced to death in the small number of U.S. counties that most aggressively pursue the death penalty often suffer the "double whammy" of getting "both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers," according to an article in Slate by Robert L. Smith. In reviewing the the unusally high numbers of death verdicts from 3 counties that are near the top of the nation in disproportionately producing death sentences over the last 5 years, Smith found not only high rates of seeking death but a pattern of inadequate capital defense representation. In Maricopa County, Arizona, the nation's second highest producer of death sentences since 2010, two capital trial lawyers had, between them, represented 10 clients who were sentenced to death. Serious concerns about the quality of representation were also present in the two counties with the nation's highest level of death sentences per capita since 2010, Duval County, Florida, and Caddo Parish, Louisiana. 75% of defendants sentenced to death in Caddo Parish since 2005 were represented at trial by lawyers who would be found unqualified to try capital cases under capital defense standards recently put in place in the state. One Caddo Parish lawyer, Daryl Gold, was trial counsel for nearly 20% of the people sent to death row in Louisiana from 2005 to 2014. He has been suspended from practicing law three times and received 14 private reprimands, and was permitted to continue representing poor defendants in capital cases even though he was barred from taking on private clients. In Duval County, a newly elected public defender fired respected senior capital litigators and installed as deputy chief and head of homicide defense a lawyer, Refik Eler, who has at least 8 former clients on death row - the most of any lawyer in Florida. Eler has already been found ineffective by the Florida Supreme Court in three capital cases for failing to investigate both guilt and penalty issues. 


Missouri Scheduled to Execute Man Despite Evidence of Intellectual Disability

Posted: November 3, 2015

Ernest Johnson (pictured) is scheduled to be executed in Missouri on November 3, despite strong evidence that he is intellectually disabled and therefore ineligible for execution. Johnson has shown signs of intellectual disability throughout his life: he walked and talked much later than his siblings, he was twice held back a grade in school, academic test scores placed him in the bottom 1-2% in math and reading, and his siblings say he struggled with basic skills like using a knife and fork. His IQ scores have consistently fallen around or below 70, a common IQ marker for individuals with intellectual disability. Despite all this evidence, Johnson faces execution because, in the words of former U.S. Attorney John N. Gallo, "the facts of Johnson’s disability were clouded in court by the prosecutor’s inflammatory rhetoric." A prosecutor argued that Johnson was not “a weak, little skinny, mentally retarded kid” and told his jury, "To decide it's more likely true than not that this guy is mentally retarded is an insult, an insult to these victims." The prosecutor also accused Johnson of intentionally lowering his IQ scores, based upon the opinion of a technician who lacked any training in administering IQ tests or making clinical observations about them. In an op-ed for the St. Louis Post-Dispatch, Gallo urged Missouri Governor Jay Nixon to commute Johnson's sentence to life without parole, saying, "to allow this execution to go forward would be to sanction a gross injustice." [UPDATE: The U.S. Supreme Court stayed Johnson's execution, but not as a result of his intellectual disability. The Court ruled that Johnson was entitled to pursue an appeal to determine whether Missouri's execution protocols are unconstitutionally cruel and unusual as applied to a person with Johnson's particular medical condition. Johnson has a brain tumor, lesions, and scarring that his experts say create a substantial risk of seizures and extreme pain if executed by lethal injection with pentobarbital.]