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EDITORIALS: Lincoln Journal Star Urges Nebraska Voters to End State's Death Penalty

Posted: October 18, 2016

Saying the death penalty is "too fallible to endure," the Lincoln Journal Star has called on Nebraska voters to end capital punishment in the state. In two editorials published in connection with the upcoming statewide death penalty ballot referendum on November 8, the paper urged Nebraskans to retain the legislature's death penalty repeal bill. The predominantly Republican legislature voted to repeal the state's death penalty in May 2015 and then, a few days later, overrode a veto by Governor Pete Ricketts. The Governor, in turn, launched a successful petition drive to place the repeal issue on the ballot. The Journal Star's first editorial focused on the "bottom line" question that, "[t]o support the death penalty, you must be willing to take the chance that the state will execute an innocent person." In addressing that question, the paper highlighted notable exonerations from Beatrice, Nebraska and elsewhere. The editorial explained that, in the largest false confession case in American history, "[t]he 'Beatrice 6' were railroaded into prison for a murder they did not commit. Finally DNA showed someone else committed the crime. Now Gage County is on the hook for $28.1 million in damages." The paper also discussed the exoneration of former Air Force sergeant Ray Krone, who—with no criminal record—was wrongfully convicted and sentenced to death in Arizona. "If it happened to Krone," the paper said, “it can happen to anybody.” In a second editorial, the Journal Star presented what it called the "powerful" conservative argument against capital punishment. The death penalty, conservatives say, "is an extraordinary example of government overreach that costs inordinate amounts of money," violates "the sanctity of life," "[s]ometimes ... delivers erroneous results, and for years on end it delivers no results at all." A recent study found that the death penalty costs Nebraska taxpayers $14.6 million per year, even though the state has not had an execution in nearly 20 years. The paper said: "All this spending siphons away money that could and should be put to use more effectively in protecting public safety. Five hundred police chiefs were asked in 1995 and 2008 to rank the tools they found most effective in fighting violent crime, [former Lincoln Police Chief Allen] Curtis wrote. 'The death penalty came in absolutely last.'" The editorial concluded, "[t]houghtful conservatives who take the time to research the issue will vote on Nov. 8 to retain the law that eliminates the death penalty and replaces it with life in prison."

 

Nevada's Search for Execution Drug Suppliers Turns Up Zero Bids

Posted: October 17, 2016

After having "solicited thoroughly for vendors," the Nevada Department of Corrections announced that no pharmaceutical company has offered to sell the state drugs for use in executions. James Dzurenda, director of the Nevada Department of Corrections issued a statement on October 7 saying that the Department had sent 247 requests for proposals to pharmaceutical suppliers on September 2 and, in response, had received no bids to supply the state with lethal injection drugs. In August, Dzurenda informed the state Board of Prison Commissioners that one of the two drugs the state used in executions—midazolam and hydromorphone—had expired and that Pfizer, Inc., which produces both of the drugs, refused to provide the state with new supplies. Pfizer announced restrictions on the distribution of its medicines in May in an effort to prevent states from using them in executions. At the time, the company said, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." Having failed to identify a drug supplier, Dzurenda said the Department "will work closely with the attorney general, the governor and the Legislature to examine our options and decide the best course of action moving forward." The state legislature would have to approve any change to an alternative method of execution. The state's $858,000 new execution chamber is expected to be completed by November 1, but no executions are imminent, and none could be carried out without a supply of drugs. Nevada's last execution was in April 2006. Officials said the space will be used for storage and attorney-client meetings if no executions are scheduled.

 

Florida Supreme Court Strikes Down State's Capital Sentencing Statute, Requires Jury Unanimity Before Imposing Death

Posted: October 14, 2016

The Florida Supreme Court has declared unconstitutional the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendation for death. In two rulings issued October 14 the court held that juries must unanimously find all facts necessary to impose a death sentence, including the existence of any aggravating factor relied upon as a reason to impose the death penalty, whether the aggravating factors in and of themselves provide sufficient grounds for imposing the death penalty, and whether the aggravating factors outweigh the mitigating circumstances (reasons for life) presented by the defense. In the first case, Timothy Lee Hurst v. State of Florida, the court vacated Hurst's death sentence imposed and remanded his case for a new sentencing hearing. The second decision, Larry Darnell Perry v. State of Florida, struck down the Florida legislature's March 2016 revision of the state’s capital sentencing statute because it does not require a unanimous jury recommendation of death before the trial judge can consider imposing a death sentence. Hurst is the same defendant whose appeal reached the U.S. Supreme Court earlier this year, resulting in an 8-1 decision declaring that the state's prior capital sentencing statute violated the 6th Amendment right to a jury trial by reserving for the judge, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. The Court specifically held that the statute impermissibly denied Hurst a jury finding of aggravating circumstances that could make him eligible for the death penalty. In response to the Court's decision, the Florida legislature amended the statute to require juries to unanimously find at least one aggravating circumstance, but allowed the jury to recommend a death sentence if at least 10 of 12 jurors agreed. The court’s decision in Hurst made clear that the statute violated Florida state constitutional provisions requiring unanimous jury verdicts, as well as federal constitutional law. In Perry, the court struck down the amended death penalty law, saying the statute "cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury’s final recommendation as to whether the defendant should be sentenced to death." While the decision in Hurst says that defendants sentenced to death under the unconstitutional sentencing procedures are not entitled to have their sentences automatically reduced to life in prison, it leaves unclear exactly what will happen in the cases of the approximately 400 people on the state's death row.

 

Texas Executions Drop to Lowest Level in 20 Years

Posted: October 13, 2016

Texas is poised to have the fewest number of executions in 20 years. As of October, the state has executed seven prisoners in 2016, with just one more execution scheduled this calendar year. The total would mark the fewest executions in the state in any year since 1996. In that year, three people were executed, as legal challenges to a new state law billed as speeding up appeals put most executions on hold. Fifteen execution dates for 11 people have been stayed or halted in Texas this year. Several of those, most notably the case of Jeffrey Wood, hinged on questions about "junk science" testimony. Wood's execution was stayed to permit review of claims that his death sentence was a product of false psychiatric testimony from James Grigson, who earned the nickname "Dr. Death" for his testimony in numerous capital cases claiming that defendants were certain to commit future acts of violence. Another Texas prisoner, Robert Roberson, was granted a stay to allow him to challenge now-debunked testimony that his daughter died of shaken baby syndrome, when several alternative, non-homicide explanations for her death better fit the evidence. At the same time as Texas courts have halted executions over questionable scientific testimony, the U.S. Supreme Court is hearing two Texas cases this term (Buck v. Davis and Moore v. Texas) that also involve scientifically-unsound mental health testimony that was used to obtain or defend death sentences. "Texas courts are now aware of the dangers associated with forensic sciences and are closely scrutinizing this evidence,” said Greg Gardner, an attorney for John Battaglia, who had an execution date set for December 7. Along with the drop in executions, Texas has also seen a dramatic decline in death sentences. Death sentences have declined steadily since 2005, as life without parole became available as a sentencing alternative in death penalty trials, but the past two years have seen even lower numbers. Just two people were sentenced to death in 2015, and Texas juries have handed down three death sentences so far this year. Experts say that changing public attitudes, falling murder rates, and better lawyering have also contributed to the decline. (Click to enlarge.)

 

U.S. Supreme Court Reverses Oklahoma Case Over Improper Victim-Impact Testimony

Posted: October 12, 2016

The U.S. Supreme Court has reversed a decision of the Oklahoma Court of Criminal Appeals that affirmed the death sentence imposed on Shaun Michael Bosse. In a unanimous per curiam decision issued October 11, the Court held that Oklahoma prosecutors had improperly presented testimony from three members of the victims' families asking the jury to sentence Bosse to death. The Court had ruled in 1987 in Booth v. Maryland that the use of victim-impact testimony in determining whether a capital defendant would be sentenced to death violated the 8th Amendment. Four years later, after a personnel change on the Court, it retreated from part of that decision, holding in Payne v. Tennessee that the presentation of testimony relating to the effect of the victim's death on his or her loved ones was constitutionally permissible. The Oklahoma Court of Criminal Appeals then ruled that Payne had implicitly overruled Booth in its entirety, permitting Oklahoma prosecutors to present highly emotional pleas from victims' family members asking juries to impose the death penalty. Oklahoma was the only jurisdiction in the country to interpret Payne in that manner, and Bosse's petition for review argued that "Oklahoma stands alone" and that its "outlier" practice was unconstitutional. The Supreme Court summarily reversed the Oklahoma court, writing that it has never overruled the portion of Booth that prohibits victims' family testimony offering "opinions about the crime, the defendant, and the appro­priate punishment." The Court further declared that its decision in Booth "remain[s] binding prec­edent until we see fit to reconsider [it]." While the Bosse decision prevents Oklahoma prosecutors from presenting this type of testimony in the future, its impact on the numerous other cases in which Oklahoma prosecutors presented this testimony is less clear. The Court remanded Bosse's case to the Oklahoma Court of Criminal Appeals, which may consider whether the improper testimony constituted harmless error. Similar harmless error review may be required in other Oklahoma cases.

 

OUTLIER COUNTIES: Kern County, California Leads Nation in Police Killings, Ranks Among Highest in Death Sentences

Posted: October 11, 2016

Kern County, California—one of five Southern California counties that have been described as the "new Death Belt"—sent six people to death row between 2006 and 2015, more than 99.4% of U.S. counties. Its death sentence-to-homicide rate during the 10-year-period from 2006 to 2015 also was 2.3 times higher than in the rest of the state. In this same time frame, Kern had the highest rate of civilians killed by police of any county in the country:  between 2005 and 2015, police killed 79 people in Kern County, a rate of 0.9 killings per year per 100,000 residents. In The Washington Post, Radley Balko explained the policy link between high rates of police killings and high use of the death penalty, noting that District Attorneys set the tone for law enforcement in their counties and are usually in charge of investigating excessive use of force by police. "It isn’t difficult to see how when a DA takes a 'win at all costs' approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself," Balko said. In Kern County, police killings and high numbers of death sentences are part of a larger narrative of official misconduct. Ed Jagels, the longtime District Attorney in Kern County, led the campaign to oust Chief Justice Rose Bird and two other Justices from the California Supreme Court over their votes in death penalty cases. He boasted about Kern leading the state of California in incarceration rate. A largely-fabricated sex abuse scandal led to 26 exonerations. Prosecutors have been found to have altered interrogation transcripts and hidden unfavorable blood test results. According to Harvard University's Fair Punishment Project, current District Attorney Lisa Green "promised to continue to be an example of aggressive prosecution" when she took over in 2010. Saying that for some capital defendants "Justice ... is nothing less than death," she advocated for a state referendum limiting death penalty appeals. Ineffective defense lawyering has also contributed to Kern's high death sentencing rate. In one particularly egregious case, a defense attorney emailed his co-counsel before the sentencing phase of a capital trial, saying, “I don’t know what a penalty trial really looks like—it’s starting to concern me.” Though half of Kern's defendants sentenced to death from 2010-2015 had intellectual disability, brain damage, or mental illness, defense lawyers presented an average of less than 3 days' worth of evidence to spare the defendant's life. In numerous cases, lawyers presented a day or less of mitigating evidence.

 

United Nations Addresses Terrorism and Capital Punishment on World Day Against the Death Penalty

Posted: October 10, 2016

In an October 10 statement commemorating World Day Against the Death Penalty, United Nations Secretary-General Ban Ki-Moon (pictured) urged the global abolition of capital punishment and called the death penalty ineffective and counterproductive as an anti-terrorism tool. Saying that capital punishment not only "has no place in the 21st century," Secretary-General Ban also noted that executions of terror suspects have been counterproductive: "Experience has shown that putting terrorists to death serves as propaganda for their movements by creating perceived martyrs and making their macabre recruiting campaigns more effective." Ban said that, "[t]o be legitimate and effective, counter-terror measures, like all security operations, must be anchored in respect for human rights and the rule of law." In particular, he critiqued vague anti-terrorism laws that states have used as a pretext to target political dissidents: "Let us be clear: participation in peaceful protests and criticism of a government–whether in private, on the Internet, or in the media–are neither crimes nor terrorist acts. The threat or use of the death penalty in such cases is an egregious violation of human rights." At a conference in Geneva held in conjunction with the World Day Against the Death Penalty, UN human rights experts decried the swift and unfair trials and death verdicts often handed down in terrorism cases and emphasized the heightened need for rigorous legal safeguards in terrorism cases. "Executions carried out without adherence to the strictest guarantees of fair trial and due processes are unlawful and tantamount to an arbitrary execution,” three UN Special Rapporteurs said. “We have called on those governments once and again to halt such executions and to retrial the defendants in compliance with international standards."

 

Tennessee Death Row Prisoners Challenge Lethal Injection, Argue Protocol Would Break the Law to Carry Out Executions

Posted: October 7, 2016

Lawyers for 30 Tennessee death row prisoners argued before the state's supreme court on October 6 that Tennessee's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Tennessee, which has not carried out an execution since 2009, intends to use a one-drug protocol of pentobarbital that it says would be obtained from a compounding pharmacy. The prisoners argue that the Tennessee Department of Correction's lethal-injection protocol creates an unconstitutional risk of lingering death and requires physicians to illegally prescribe controlled substances. Their lawyers argue that states may not break their own laws or federal statutes to carry out executions and that physicians who prescribe pentobarbital for executions would be violating federal drug laws. Assistant Federal Public Defender Michael Passino said, "You cannot perform a lawful act in an unlawful manner. To the extent that TDOC is doing that, the protocol is unconstitutional." Justice Sharon G. Lee raised concerns about the possibility of botched executions like those that have occurred in other states, in which prisoners writhed and gasped during prolonged executions. Associate Solicitor General Jennifer Smith, arguing on behalf of the state of Tennessee, conceded that "there is no guarantee that an execution is not going to have a problem." Justice Lee asked Smith further, "So how do we know our execution would not be botched?" Smith responded, "We don't."

 

U.S. Supreme Court Hears Argument in Buck v. Davis, Texas Case Dealing With Racist Testimony

Posted: October 6, 2016

The U.S. Supreme Court heard oral argument on October 5 in Buck v. Davis, a Texas case in which Duane Buck was sentenced to death after his own lawyer presented expert testimony from a psychologist who called Buck more likely to commit acts of violence in the future because he is Black. While Cecilia Marshall, widow of Thurgood Marshall, and Buck's stepsister, Phyllis Taylor—a survivor of the shooting—observed from the audience, Buck's counsel told the Court that the jury had sentenced Buck to death penalty based upon "a false and pernicious group-based stereotype" that equated being Black with being dangerous. Each of the seven justices who spoke during the hearing sharply criticized trial counsel's conduct, with Justice Samuel Alito saying "what occurred at the penalty phase of this trial is indefensible." Six other defendants whose cases had been tainted by similarly biased testimony by the same psychologist have already received new sentencing hearings, but Buck has not. Texas argued that Buck's case is unique because his defense attorney, not prosecutors, invited the biased testimony. Buck's attorneys previously sought review of his case on the grounds that his lawyer was ineffective, but the U.S. Court of Appeals for the Fifth Circuit denied Buck a "Certificate of Appealability" (COA), which allows a defendant's claims to be heard on the merits by an appeals court. During argument, the Justices raised concerns about the disparate rates at which Circuit Courts grant COAs. The Fifth Circuit denies them in about 60% of cases, while the Eleventh and Fourth Circuits deny them in only 6% and 0% of cases, respectively, meaning that defendants in the Fifth Circuit receive less review of their claims than those in the Eleventh or Fourth. Justice Elena Kagan said, "[I would assume] you think this is such an extraordinary case, and that the 5th Circuit got this so wrong, that it’s the best proof that there is that the court is approaching the COA inquiry in the wrong way." Justice Stephen Breyer agreed, saying, "It seems to me it proves the arbitrariness of what’s going on." (Pictured: Buck's lead counsel, NAACP Legal Defense Fund Litigation Director Christina Swarns, being interviewed on the steps of the Court.) 

 

Summer 2016 "Death Row USA" Shows Ongoing Decline in Death Row Populations

Posted: October 4, 2016

The NAACP Legal Defense Fund reports that America's death rows have continued to decline in size, with 2,905 men and women on death row across the United States as of July 1, 2016. The new figures, reported in the organization's Summer 2016 edition of its quarterly publication, Death Row USA, represent a 14% decline from the 3,366 prisoners who were on death row one decade earlier. The shrinking of death row populations across the country has exceeded the number of executions during that period, meaning that more prisoners have been removed from death row as a result of having their convictions or death sentences overturned than have been added to the row with newly death-sentenced prisoners. The nation's largest death row states remain: California (741), Florida (396), Texas (254), Alabama (194), and Pennsylvania (175). Nationwide, 42.34% of death row inmates are White, 41.79% are Black, 13.08% are Latino/a, and 2.78% are other races, but racial makeup varies by state. Among the most racially-disproportionate death row populations are Delaware (78% minorities), Texas (73% minorities), Louisiana (70% minorities), Nebraska (70% minorities), and California (66% minorities). Only 55 death row prisoners (1.89%) are women. 

 

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