A federal judge in Louisiana has delayed five executions until at least July 2016 as state officials struggle to determine how to conduct executions using lethal injection. Christopher Sepulvado, a death row inmate whose execution has been rescheduled several times over the last two years, is challenging the constitutionality of Louisiana's execution method. The Department of Corrections requested that a hearing related to Sepulvado's challenge be put on hold because, "it would be a waste of resources and time to litigate this matter at present," because of ongoing developments relating to the availability of lethal injection drugs. Louisiana does not currently have an execution protocol. Its last protocol, however, was the same as that used in Arizona's botched execution of Joseph Wood: a combination of hydromorphone and midazolam. The state allegedly lied to a hospital in order to obtain one of the drugs in 2014, telling a pharmacist that the drug was needed for "a medical patient," not an execution. The Department of Corrections' last known supply of the execution drugs has now expired.
Through the lens of a 1927 murder and the ensuing trials of three suspects, An Evil Day in Georgia examines the death penalty system in Prohibition-era Georgia. James Hugh Moss, a black man, and Clifford Thompson, a white man, both from Tennessee, were accused of the murder of store owner Coleman Osborn in rural north Georgia. Thought to be involved in the illegal interstate trade of alcohol, they were tried, convicted, and sentenced to death on circumstantial evidence within a month of the murder. Thompson's wife, Eula Mae Elrod, was tried, convicted, and sentenced to death the following year, but was released in 1936 after her case gained notoriety in the press. "Moss, Thompson, and Elrod...were almost classic examples of perceived social outsiders or rebels who ran afoul of a judicial system not designed to protect them but to weed them out and discourage others who might think about challenging the system," author Robert N. Smith says. "Moreover, all three trials were held in circumstances where local tensions ran so high that conviction was virtually assured." John Bessler, author of Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment, said, "In An Evil Day in Georgia, author Robert Smith raises lingering questions about the guilt of two men—one white and one black—executed for a murder in the Deep South in the 1920s. . . . The telling of this story, one that played out in the Jim Crow era and the days of bootlegging and the Ku Klux Klan, exposes the death penalty’s imperfections even as it calls into question the veracity of a woman’s confession, later recanted, that once brought her within a stone’s throw of the state’s electric chair."
In a dissenting opinion in Glossip v. Gross, Justice Stephen Breyer (pictured), joined by Justice Ruth Bader Ginsburg, provided a sweeping analysis of why he believes the death penalty in the United States may be unconstitutional and called for a "full briefing" on "whether the death penalty violates the Constitution." Justice Breyer wrote that "Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court’s view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty’s application have changed radically since then." Justice Breyer said "those changes, taken together with my own 20 years of experience on this Court, . . . lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'” Citing DPIC's resources for many of the historical facts underlying his opinion, Justice Breyer catalogued what he described as "three fundamental constitutional defects" in the administration of the death penalty today that may make it cruel and unusual punishment.
Death row in Texas has shrunk from 460 men and women at its peak in 1999 to 260 today. The main reason for that drop, according to an article in The Texas Tribune, is the dramatic decline in death sentences imposed in the state. In 1999 alone, Texas sentenced 48 people to death. But in the first 6 months of 2015, no death sentences have been imposed in Texas. This development is unprecedented, according to the Texas Defender Service (TDS). “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” said Kathryn Kase, director of TDS. Kase said that a major factor contributing to the decline in death sentences is Texas' adoption of life without parole in 2005. “Life without parole allows us to go back and reverse our mistakes,” Kase said. “We can be really safe in these cases.” In the decade since life without parole became a sentencing option, Texas has averaged about 10 death sentences per year. In the prior decade, an average of 34 people were sent to death row each year. The Tribune reports that "Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96." Three death penalty cases have been tried in Texas so far this year, and all three resulted in sentences of life without parole.
Michelle Byrom (pictured, seated) was released from prison in Mississippi on June 26 after spending 16 years behind bars, 14 of them on death row, for the murder of her husband. Byrom maintains her innocence for the crime, but agreed to an Alford plea -- which means that she pleaded no contest to the charges against her -- in exchange for her release. In 2014, the Mississippi Supreme Court reversed Byrom's conviction and death sentence and ordered a new trial, citing numerous problems in her case. Byrom's attorneys failed to present any mitigating evidence, and the jury was never told that Byrom's son, Junior, had confessed to killing his father. Junior initially told police that his mother had hired someone to kill his father, but later wrote in a letter, "You are all I have, and they're trying to take that away from me now, but Mom I'm gonna tell you right now who killed Dad 'cause I'm sick and tired of all the lies. I did, and it wasn't for money, it wasn't for all the abuse — it was because I can't kill myself." Junior pleaded guilty to conspiring in the murder, was sentenced to 30 years, and received a supervised release in 2013. John White, one of Byrom's attorneys, said of her release, "It's been a long arduous journey. The outcome is appropriate, given the history of the case."
Glenn Ford, who was exonerated last year after spending almost 30 years on Louisiana's death row, died of lung cancer on June 29 at the age of 65. At the time of his release, Ford was the nation's longest-serving death row exoneree. Just hours after his death, Ford's case was cited in the dissenting opinion of Justice Breyer in Glossip v. Gross, as providing “striking” evidence “that the death penalty has been wrongly imposed.” Justice Breyer mentioned innocence, prosecutorial wrongdoing, the length of time inmates spend on death row, and the unreliability of capital convictions among the reasons why he now “believe[s] it highly likely that the death penalty violates the Eighth Amendment.” In 1984, Ford was convicted of murder on the testimony of a witness who later said police had helped her make up her story. Ford's attorney had never tried a case before a jury. After Ford's exoneration, the lead prosecutor on his case, A.M. "Marty" Stroud III, issued a public apology. He expressed his belief in Ford's complete innocence, saying, "There was no technicality here. Crafty lawyering did not secure the release of a criminal...Pursuant to the review and investigation of cold homicide cases, investigators uncovered evidence that exonerated Mr. Ford. Indeed, this evidence was so strong that had it been disclosed during of the investigation there would not have been sufficient evidence to even arrest Mr. Ford!" Stroud urged the state to grant Ford compensation for his wrongful conviction, but no compensation was granted before Ford's death.
Gary Clements, Director of the Capital Post-Conviction Project of Louisiana, tells DPIC that "At 2:11 [Monday] morning, Glenn slipped away very quietly and peacefully. He was held and surrounded by people who cared about him, and was listening to a song he loved."
On June 29, the U.S. Supreme Court held (5-4) in Glossip v. Gross that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."
Lester Bower was executed in Texas on June 3 despite maintaining his innocence throughout the 30 years he spent on death row. The evidence of Bower's innocence included testimony from a woman who said that her boyfriend and three of his friends -- not Bower -- had committed the murders for which Bower was executed. The witness came forward in 1989, after reading that Bower had been sentenced to death for the crime her boyfriend had confessed to committing six years earlier. In 2012, a judge rejected Bower's request to present the testimony to a jury, saying, "the new evidence produced by the defendant could conceivably have produced a different result at trial...it does not prove by clear and convincing evidence that the defendant is actually innocent." Maurice Possley, a senior researcher for the National Registry of Exonerations, explained the judge's decision: "He points out in pretty clear terms that this guy probably would have been found not guilty had this evidence been available at trial. But now, all these years later, he can’t meet the new standard, which is actual innocence. That was not the standard at trial. Then it was guilty beyond a reasonable doubt." Samuel Gross, editor and co-founder of the registry, said, "To me it’s one of the most troubling features of our justice system. In the absence of procedural error, you have no effective escape valve. We don’t have a procedure for reviewing convictions for accuracy."
In an interview with The Marshall Project, Bryan Stevenson (pictured), director of the Equal Justice Initiative and author of Just Mercy, discussed the role the history of slavery, lynchings, and racial terrorism in the South played in the racially-motivated killings of nine black people in an historic black church in Charleston, South Carolina. In the interview, Stevenson described the historical use of the death penalty as a tool to reinforce a racially discriminatory social order. This, he says, is manifest in race-of-victim disparities in death penalty cases: "In Alabama, 65% of all murder victims are black, but 80% of all death sentences are imposed [when victims] are white. And that’s true throughout this country. We’ve used it particularly aggressively when minority defendants are accused of killing white people." Occasionally, he says, states will seek the death penalty for a white man accused of a racially-motivated murder, masking the need for an open and honest discussion of this country's race problems. "You'll see lots of people talking enthusiastically about imposing the death penalty on this young man in South Carolina. But that’s a distraction from the larger issue, which is that we’ve used the death penalty to sustain racial hierarchy by making it primarily a tool to reinforce the victimization of white people." Given its historical legacy as tool of racial oppression, Stevenson urges the abolition of the death penalty, saying, "If I were the governor of South Carolina, I’d say: 'We’re going to abolish the death penalty, because we have a history of lynching and terror that has demonized and burdened people of color in this state since we’ve became a state.'...And I think every southern governor should do the same. That’s when you’d get the different conversations starting in this country. Then you might get some progress."
This fall, the U.S. Supreme Court will hear a Georgia case, Foster v. Humphrey, in which an all-white jury sentenced a black man to death after prosecutors struck every black prospective juror in the case. The Court will determine whether prosecutors violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. In anticipation of the case, The New Yorker published an analysis of tactics used to evade Batson challenges by providing race-neutral reasons for striking jurors. In Philadelphia, a training video told new prosecutors, "When you do have a black juror, you question them at length. And on this little sheet that you have, mark something down that you can articulate later. . . . You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race." In the 1990s, prosecutors in North Carolina -- whose use of peremptory strikes have been held to violate that state's Racial Justice Act -- held training sessions featuring a handout titled, "Batson Justifications: Articulating Juror Negatives." Defense attorneys can challenge these reasons, but such challenges are rarely successful. Stephen Bright, president of the Southern Center for Human Rights, who is representing Foster, said, "You’re asking the judge to say that the prosecutor intentionally discriminated on the basis of race, and that he lied about it. That’s very difficult psychologically for the average judge.” Justice Thurgood Marshall recommended banning peremptory strikes so as to stop racial bias in jury selection. Louisiana Capital Assistance Center director Richard Bourke suggests a more politically realistic reform: track the racial makeup of juries in order to raise public awareness of bias.