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Fair Punishment Project Issues Report on Deadliest Prosecutors

Posted: June 30, 2016

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.

 

BOOKS: "Executing Grace"

Posted: June 29, 2016

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.”

 

Arizona Lacks Supply of Execution Drugs, "Presently Incapable of Carrying Out" Executions

Posted: June 28, 2016

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 Support

Posted: 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 Executions

Posted: 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.

 

Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years

Posted: June 23, 2016

The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?" 

 

Cost of Pennsylvania Death Penalty Estimated At $816 Million, Could Reach $1 Billion

Posted: June 22, 2016

Pennsylvania's taxpayers have paid an estimated $272 million per execution since the Commonwealth reinstated its death penalty in 1978, according to an investigation by The Reading Eagle. Using data from a 2008 study by the Urban Institute, the Eagle calculated that cost of sentencing 408 people to death was an estimated $816 million higher than the cost of life without parole. The estimate is conservative, the paper says, because it assumes only one capital trial for each defendant and it does not include the cost of cases in which the death penalty was sought but not imposed. The total cost may exceed $1 billion. An earlier investigation had estimated a cost of at least $350 million, based on the 185 inmates who were on death row as of 2014, but additional research into the cases that had already been overturned, or in which inmates died or were executed prior to 2014, revealed a total of 408 people who had been sentenced to death. Pennsylvania has carried out only three executions under its current death penalty statute. State Senator Stewart Greenleaf, a Republican and chairman of the Senate Judiciary Committee, said, "We're scratching for every dollar that we can right now. To continue to spend that kind of money is hard to justify." The Eagle's investigation also uncovered geographic disparities in the application of the death penalty. 60% of all death sentences came from just four counties: Philadelphia, Allegheny, York, and Berks. Death sentencing rates also varied dramatically, with about a third of counties handing down zero death sentences, while three (Columbia, Cumberland, and Northumberland) had 5 or more death sentences per 100 murders. Somerset District Attorney Lisa Lazzari-Strasiser, who has filed one death penalty case in five years as District Attorney, said, "I think our system is broken. It doesn't do justice to any one of the stakeholders, in my opinion, not the taxpayers, the victims or the defendants. It doesn't work."

 

U.S. Supreme Court Orders Reconsideration of Three Cases in Light of Jury Selection Decision

Posted: June 21, 2016

The U.S. Supreme Court granted writs of certiorari in three jury discrimination cases on June 20, vacating each of them and directing state courts in Mississippi, Alabama, and Louisiana to reconsider the issue in light of the Court's recent decision in Foster v. Chatman. Two of the petitioners, Curtis Flowers of Mississippi and Christopher Floyd of Alabama, are currently on death row. The third, Jabari Williams, was convicted in Louisiana of second-degree murder. Earlier this year, the Supreme Court granted Timothy Foster a new trial because prosecutors illegally excluded blacks from his jury. Flowers, Floyd, and Williams all raised issues of racial discrimination in jury selection that were rebuffed in the state courts. As in Foster's case, the prosecutor's notes in Floyd reflect race-conscious jury strikes. Floyd's prosecutor marked African American potential jurors with a "B" on its list of jurors to remove, then struck 10 of 11 black prospective jurors. Flowers has been tried six times. His first two convictions were overturned because of prosecutorial misconduct, and his third as a result of racial bias in jury selection. His fourth trial ended in a mistrial and his fifth trial resulted in a hung jury. At his most recent trial, eleven white jurors and one black juror convicted him after just 30 minutes of deliberation. The Equal Justice Initiative, which represents Floyd, released a statement saying, "Racial bias has been a longstanding problem in Alabama, where more than two dozen cases have been reversed after courts found that prosecutors engaged in intentional racial discrimination during jury selection." EJI Executive Director, Bryan Stevenson, said racial bias in jury selection “undermines the integrity of the criminal justice system.” He told the Montgomery Advertiser, "What we’ve found is regardless of the race of the defendant, a lot of prosecutors appear not to trust black people in juries, which is illegal and unconstitutional.”

 

Daughter of Charleston Shooting Victim Opposes Death Penalty for Accused Killer

Posted: June 20, 2016

Sharon Risher, whose mother, Ethel Lance (pictured), and cousins, Susie Jackson and Tywanza Sanders, were killed in the racially-motivated shooting at Charleston's Emanuel AME Church one year ago, says she has not foregiven Dylann Roof, the accused perpetrator, but does not think he should be sentenced to death. In an article for Vox, Risher shared her experiences since the shooting, discussing her emotional reactions to her mother's death and her views on gun control, the removal of the Confederate flag from South Carolina's statehouse, and capital punishment. Risher, who is a church chaplain, says that "[t]here is no right way to grieve." Unlike her sister, Nadine Collier, who publicly voiced her forgiveness of Roof just days after the shooting, Risher is "still in the anger stage" of grieving and says she has not forgiven Roof. Still, she does not believe a death sentence is appropriate. "Despite the anger I am still coping with from my mother’s death, I don’t believe in the death penalty, even for the man who killed her. That’s my conviction because of my faith," she said. "I don’t believe as human beings that we should take away someone’s life just because we have the power to do so." A recent poll found that nearly two-thirds of black South Carolinians prefer a sentence of life without parole for Roof if he is convicted.

 

Texas Court Stays Execution of Man Convicted by Now Debunked "Shaken Baby" Testimony

Posted: June 17, 2016

The Texas Court of Criminal Appeals has granted a stay of execution to Robert Roberson (pictured), who had been scheduled to be executed on June 21 for the 2003 death of his two-and-a-half-year-old daughter, Nikki Curtis. The court's June 16 stay order halts Roberson's execution under a recent Texas law permitting court challenges based on new scientific evidence of innocence. Prosecution experts had testified at Roberson's trial that his daughter died of Shaken Baby Syndrome, asserting that the child exhibited symptoms that she must have been shaken or beaten. Roberson said she had fallen out of bed during the night, but that she seemed fine and went back to sleep. Hours later, when he checked on her again, she was blue and could barely breathe. Prosecutors charged him with murder and with sexually assaulting his daughter - although there was no evidence that she had been sexually assaulted. The sexual assault charges were later dropped, but only after the prosecution had discussed them in open court in front of the jury. The court granted Roberson review of four issues: that (1) new scientific evidence establishes that he would not have been convicted; (2) the State's use of "false, misleading, and scientifically invalid testimony” about Shaken Baby Syndrome violated due process; (3) Roberson is "actually innocent of capital murder"; and (4) "the State’s introduction of false forensic science testimony that current science has exposed as false" made his trial fundamentally unfair. "Instead of taking Robert’s explanation about a fall seriously or exploring all possible causes of the injury sustained by a chronically ill child who had been at the doctor’s office with 104.5-degree temperature only two days before," Roberson's lawyer, Gretchen Sween wrote, "a tragedy was hastily deemed a crime and a father, doing the best he could to care for his daughter despite severe cognitive impairments, was branded a murderer." Roberson presented affidavits from four medical experts challenging the accuracy and scientific validity of the State's shaken baby testimony. Forensic pathologist Dr. Harry Bonnell, in an opinion shared by all four defense experts, wrote: "it is impossible to shake a toddler to death without causing serious neck injuries—and Nikki had none." They suggest several alternate theories for Curtis' death, including meningitis caused by an ear infection, a fall like the one Roberson described to investigators, or a congenital condition. Roberson's appeal argues that, "[w]hen the trial record is viewed through the lens of current science and evidence-based medicine, it is clear that he is innocent of capital murder." The court returned the case to the trial court in Anderson County to conduct an evidentiary hearing on Roberson's claims. 

 

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