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In a chapter from the recently released American Bar Association publication, The State of Criminal Justice 2016, Ronald J. Tabak, chair of the Death Penalty Committee of the ABA's Section of Individual Rights and Responsibilities, describes significant trends and recent cases related to capital punishment. Tabak highlights the ongoing declines in death sentences and executions across the United States, as well as the increasing concentration of the death penalty in a small number of jurisdictions. The chapter details the lethal injection controversies that have slowed executions in many states and halted them in others. It also includes sections on key Supreme Court cases, particularly Glossip v. Gross, and on innocence, emphasizing recent exonerations. Tabak concludes with a prediction: "As more and more people recognize that our capital punishment system is inconsistent with both conservative and liberal principles, and with common sense, the opportunity for its abolition throughout the United States will arrive."
Just days after a split Arkansas Supreme Court upheld the state's execution protocol, Arkansas' supply of vecuronium bromide—a paralytic agent used in the state's three-drug lethal injection protocol—expired, leaving the status of future executions unclear. At that time, Governor Asa Hutchinson said that he wanted the Department of Correction to obtain a new supply of the drug rather than change the state's method of execution. In 2015, the state spent $25,000 for lethal injection drugs and set eight execution dates. Death row prisoners challenged the state's execution protocol and secrecy law, which they say violated the settlement in a challenge to an earlier protocol. The new litigation, which raised critical questions about whether the new protocol might result in an unconstitutionally cruel and unusual execution, took nearly a year to resolve, ending just before the June 30 expiration date of the execution drugs. Because every major manufacturer of pharmaceuticals in the U.S. opposes the use of their products in executions, Governor Hutchinson said it is "unknown" whether Arkansas will be able to obtain a new supply of the drugs. He again expressed hesitation at the idea of changing the state's lethal injection protocol, saying, "You don't want to deviate from what's already been tested and approved[;] otherwise you're starting all over again." The Arkansas Department of Correction would not disclose what efforts it has made to obtain new execution drugs. The state last carried out an execution in 2005.
Decline in "Resource-Draining" Death Penalty Trials in Amarillo Texas Mirrors Trends in State, NationPosted: July 6, 2016
Forty years after Gregg v. Georgia ushered in the modern era of capital punishment in the United States, the death penalty is in decline across the country and in Texas. The Lone Star State continues to lead the nation in executions—with nearly half of all executions in the U.S. this year—but the Amarillo Globe-News reports that fewer Texas prosecutors are seeking death sentences and fewer juries are imposing them. According to the Globe-News, 26 people have been sentenced to death since 1976 in the Amarillo-area counties of Potter (17 death sentences) and Randall (9 death sentences). As of January 1, 2013, Potter County ranked 11th in the country in executions, but with its last execution in 2008, it has fallen to 16th, and no Amarillo-area prisoner is on death row for an offense committed after 2003. The two Potter County death row prisoners, John Balentine and Travis Runnels, are challenging their death sentences in federal court on the grounds that the lawyers the county appointed for them at trial and in state appellate proceedings provided ineffective representation, inadequately investigating and failing to present mitigating evidence that might have persuaded the jury to spare their lives. A third Amarillo-area prisoner, Brittany Holberg, has been on death row for 18 years, and Randall County criminal district attorney James Farren estimates her case has already cost taxpayers $2 million - $3 million. Farren believes the practical costs of the death penalty are contributing to prosecutors' decisions not to seek death in new cases. “The process has become so onerous, time-draining and resource-draining that the local prosecutors who choose to seek the death penalty in most cases are going to opt not to," he said. "It’s simply unfair to the taxpayers to bankrupt the county pursuing that result in a single case.” Farren also says that legislation creating a life without parole sentencing option has changed jurors' views: “It’s difficult to find 12 people who all agree that even though this person may die in prison to vote for the death penalty.” This reflects public opinion polls, which find that a majority of the public prefers life without parole to the death penalty. A recent poll by the Kinder Institute for Urban Research indicates that only 27% of Houstonians think the death penalty is a more appropriate punishment for murder than life without parole. Houston is in Harris County, Texas, which has executed more prisoners than any other county in the nation.
Arizona Lethal Injection Challenge Proceeds As State Refuses to Rule Out Future Use of Controversial Execution DrugPosted: July 5, 2016
A federal judge has rebuffed an attempt by Arizona to dismiss a lawsuit filed by the state's death row prisoners challenging the state's execution practices. The state argued at a hearing in the case in U.S. District Court on June 29, that the prisoners' lawsuit should be declared moot because Arizona's supply of midazolam—the first drug in one of the state's four execution protocols—had expired and that the state has been unable to obtain a new supply of that drug and other potential execution drugs from pharmaceutical manufacturers. However, defense lawyers argued that the state's announcement last week that it would drop midazolam from its execution protocol did not make the lawsuit moot because Arizona prison officials "could change their minds next week or next month.” And when pressed by Judge Neil Wake as to whether the Arizona Department of Corrections might use midazolam in the future if the drug became available, the state's lawyers said Arizona "will not commit to never using midazolam again.” The prisoners are also challenging Arizona's contention that the Corrections Director has unlimited discretion to make changes to the state's execution protocol. The prisoners argue that the state has abused that discretion to make last-minute changes in the execution protocol, preventing condemned prisoners from learning the details of the execution protocol until after a death warrant has been issued. This, in combination with secrecy provisions that conceal information about the source and quality of the drugs to be used in executions, has artificially limited the court's ability to address the legal challenges to Arizona's execution practices and resulted in what Judge Wake has characterized as "crisis litigation." In the past, Judge Wake had permitted executions to go forward in those circumstances—including the botched two-hour execution of Joseph Wood. However, he said that he would now consider staying future executions if necessary to ensure "prompt and orderly litigation." The state's executions remain on hold as the lawsuit continues.
Six months into 2016, the pace of executions in the United States remains at the same level as the 24-year low set in 2015. Fourteen executions have been carried out so far this year in five states - Texas (6), Georgia (5), and one each in Alabama, Florida, and Missouri - while 23 other scheduled executions have been halted by stays or reprieves. States carried out 28 executions in 2015. Eight executions are currently scheduled for the second half of the year, with seven in Texas and one in Georgia. Death penalty cases in two states that have carried out executions this year - Alabama and Florida - as well as in Delaware, are in limbo as state courts decide the ramifications of the U.S. Supreme Court decision in Hurst v. Florida, which struck down Florida's death sentencing scheme. The Supreme Court also ruled in favor of death row prisoners in two other major cases this spring. The Court overturned the Georgia conviction of Timothy Foster because prosecutors unconstitutionally excluded blacks from the jury, and it directed state courts in Alabama and Mississippi to reconsider capital convictions in two other cases in which similar abuses have been alleged. The Court also ordered a new appeal for Terry Williams in Pennsylvania because of judicial bias in his earlier appeal. Executions also have been affected by the ongoing controversy concerning lethal injection. In May, Pfizer joined numerous other pharmaceutical companies in implementing sales and distribution restrictions to prevent states from using its products in executions. Two states - Louisiana and Arizona - have recently announced that they are unable to obtain lethal injection drugs and Arkansas' supply of the lethal injection drug midazolam expired on June 30.
A new report by Harvard Law School's Fair Punishment Project has found that a small number of overzealous prosecutors with high rates of misconduct have a hugely disproportionate impact on the death penalty in the United States. The report, "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty," shows that, by themselves, these prosecutors are responsible for more than 440 death sentences, the equivalent of 15% of the entire U.S. death row population today. Exploring what it calls "the problem of personality-driven capital sentencing," the report details the effects of Joe Freeman Britt of Robeson County, North Carolina; Robert Macy of Oklahoma County, Oklahoma; Donald Myers of the 11th Judicial District of South Carolina; Lynne Abraham of Philadelphia, Pennsylvania; and Johnny Holmes of Harris County, Texas. Britt, Macy, and Myers personally prosecuted a combined 131 cases that resulted in death sentences, while Abraham and Holmes oversaw offices that the report says imposed 108 and 201 death sentences, respectively. They also disproportionately sent innocent people to death row, prosecuting 1 out of 20 of the nation's death-row exonerees. The report found similar patterns involving these prosecutors, including high rates of prosecutorial misconduct, statements and actions that revealed a win-at-all-costs mentality, and a sharp decrease in death sentences once they and their proteges left office. Britt, Macy, and Myers were found to have committed misconduct in one-third to 46% of the death penalty cases they prosecuted. Prosecutors in Abraham's and Holmes' offices were found to have engaged in misconduct, including racially-biased jury selection and failures to disclose favorable evidence. Of the five prosecutors profiled in the report, only Myers—who is not seeking re-election—is still in office. After the other four prosecutors left office, the number of death sentences has declined significantly. Robeson County has imposed two death sentences in the last 10 years, Oklahoma County and Philadelphia County have each imposed three in six years, and Harris County dropped from an average of 12 death sentences a year during Holmes' last decade as prosecutor to one a year since 2008.
In his new book, Executing Grace, evangelical Christian speaker, activist, and author Shane Claiborne weaves together personal narratives, theology, and research to make a Christian case against the death penalty. Claiborne says "[t]he death penalty did not flourish in America in spite of Christians but because of us." Arguing that "[w]e can't make death penalty history until we make death penalty personal," he tells the stories of people affected by the death penalty in a variety of ways: family members of murder victims, executioners and corrections officers, death row exonerees, and death row inmates. Each chapter closes with an individual story he calls "Faces of Grace." Claiborne also explores biblical history and the Bible's teachings on capital punishment, forgiveness, and mercy. Archbishop Desmond Tutu said, "In these pages, Shane Claiborne exposes the harm that the death penalty does to us as humans–to executioners, judges, governors, to the convicted and the exonerated, and to all of us as citizens. Here is an invitation to build a world where we reject all forms of killing, both legal and illegal. It is a call to join a movement where grace gets the last word. Shane Claiborne’s brilliant book reminds us that without forgiveness, there is no future.”
In a court filing in the federal lawsuit challenging its execution procedures, Arizona officials have declared that the state does not have the drugs necessary to carry out an execution, and is currently unable to obtain them. The filing states, "the Department’s lack of the drugs and its current inability to obtain these drugs means that the Department is presently incapable of carrying out an execution." Arizona has four separate multi-drug protocols it may use in executions. One involves the use of the anti-anxiety drug, midazolam, to sedate the prisoner before the other drugs are administered. The other three protocols involve the use of either pentobarbital or sodium thiopental. The state used midazolam in the botched execution of Joseph Wood in 2014, which was the last execution conducted in Arizona. The state attempted to import 1,000 vials of sodium thiopental from a supplier in India, but the shipment was seized at Phoenix airport by the Food and Drug Administration, which said the importation of pharmaceuticals without an approved medical purpose violated federal law. In its recent court filing, Arizona announced that it will abandon the use of midazolam and indicated that it has been unable to obtain the other sedatives. After Wood's execution, death row inmates challenged the state's lethal injection protocol, which called for midazolam followed by a paralytic drug, on the grounds that, "midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain." In May, U.S. District Court Judge Neil Wake permitted that claim to move forward, effectively delaying all executions until after the state's supply of midazolam had expired. Dale Baich, an attorney for the Arizona prisoners challenging the protocol, said, "As we have said all along, midazolam is not an appropriate drug for use in executions....Arizona now becomes the second state to abandon the experimental use of this drug in executions. Now, more than ever, we need to ensure that Arizona's execution protocol comports with the constitutional requirements for a humane execution....We need a much more specific, clear plan that has been vetted by the court and is understood by the public." A hearing will be held on June 29.
World Congress Against the Death Penalty Renews Call for Global Moratorium, Pope Sends Message of SupportPosted: June 27, 2016
Delegates to the Sixth World Congress Against the Death Penalty, held in Oslo, Norway from June 21 to June 23, 2016, have renewed the organization's call for a global moratorium on capital punishment. The event, attended by more than 1300 representatives from 80 countries, featured discussions by death penalty stakeholders from around the world. Participants included human rights officials from the United Nations and European Union, as well as Justice Ministers from both abolitionist and retentionist countries, Nobel Peace Prize laureates, global death-row exonerees, non-governmental human rights organizations, attorneys, journalists, and activists from dozens of countries. On Wednesday, June 22, Pope Francis (pictured, click to enlarge) addressed the Congress in a video message, in which he reiterated his support for abolition of the death penalty. He said the death penalty is not “consonant with any just purpose of punishment," and that "It does not render justice to victims, but instead fosters vengeance. The commandment 'Thou shalt not kill' has absolute value and applies both to the innocent and to the guilty." In an interview with the Australian Broadcasting Company, Philip Ruddock, Australia's Special Envoy for Human Rights described his efforts to persuade U.S. and Chinese officials to move away from capital punishment. "I believe when your friends suggest that maybe there's time for a change, you do start to think a bit more seriously about it," he said. "I think many Americans are embarrassed that they continue to have some states that maintain capital punishment."
Divided State Court Upholds Arkansas Lethal Injection Protocol and Secrecy Law, Potentially Opening Path to Eight ExecutionsPosted: June 24, 2016
A divided Arkansas Supreme Court voted 4-3 on June 23 to uphold the state's lethal injection protocol and secrecy policy. The decision potentially opens the path for the state to move forward with eight executions that had been stayed pending the outcome of this litigation. However, it is unclear whether executions will resume because Arkansas' supply of lethal injection drugs expires on June 30, and the supplier from which it obtained those drugs has indicated that it will no longer sell execution drugs to the state. The Arkansas Department of Corrections has told the Associated Press that its "inventory sheet ... has not changed" since April, when it disclosed that its doses of the paralytic drug, vecuronium bromide, are set to expire. A prison official's affidavit, submitted during the court proceedings, said that the state had contacted at least five additional drug wholesalers or manufacturers, all of whom said they either would not sell the drugs to the state or would not sell them without the makers' permission. Arkansas has not carried out an execution since 2005. The death row prisoners had argued that Arkansas's proposed execution protocol and its secrecy policy, which enables the state to conceal the identities of execution drug suppliers, could result in unconstitutionally cruel and unusual executions. Justice Robin Wynne, who dissented, said he believed the inmates had successfully proved that claim. In a separate dissent, Justice Josephine Linker Hart said she would have ordered the state to disclose the source of the drugs. The majority decision also rejected prisoners' argument that the secrecy law violates a settlement that guaranteed them access to the now-secret information, declaring that the settlement agreement was not a binding contract.