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Former Ohio Supreme Court Justice Evelyn Lundberg Stratton (pictured) testified in state legislative hearings on October 14 that Ohio should ban use of the death penalty against defendants who suffer from serious mental illness when they commit a capital crime. Stratton, a Republican who was appointed to the court in 1996 and served, following reelection, until 2012, called the death penalty "inefficient, ineffective and a great burden on our society." Stratton said that the U.S. Supreme Court has barred the execution of juveniles and people with intellectual disabilities because of their reduced culpability. She told the Ohio Senate Criminal Justice Committee that people with serious mental illnesses have similarly reduced culpability. "Do we as a society say we want to execute someone who has diminished capacity and mental Illness?" Stratton asked the committee. Last year, the Ohio Supreme Court Joint Task Force on the Death Penalty issued 56 reform recommendations, including a ban on executing those with serious mental illness. Stratton said the bill would apply to defendants diagnosed with such serious mental illnesses as schizophrenia, bipolar disorder, and depressive and delusional disorders. The bill has bipartisan sponsorship and is also supported by the National Alliance on Mental Illness.
Support for the death penalty in the United States dropped by two percentage points over the last year and opposition rose to its highest levels since before the Supreme Court declared existing death penalty statutes unconstitutional in 1972, according to the 2015 annual Gallup Poll on the death penalty. Gallup reports that 61% of Americans say they favor the death penalty, down from 63% last year and near the 40-year low of 60% support recorded in 2013. Support was 19 points below the 80% who told Gallup in 1994 that they supported capital punishment. 37% said they opposed the death penalty, the most in 43 years and 21 points above levels reported in the mid-1990s. Death penalty support was lower and opposition higher among racial minorities than among whites. A majority of African Americans (55%) oppose the death penalty, while 68% of whites say they support it. The poll results are consistent with other signs of declining support for the death penalty: seven states have abolished the death penalty since 2007, and death sentences are at their lowest level since capital punishment was reinstated. Even with historic lows in death sentencing, the poll reports the highest percentage of Americans to say the death penalty is imposed too often (27%) since Gallup first posed that question in 2001. The 40% who said the death penalty is not imposed enough was tied for the lowest percentage to say so since May of 2001. (Click image to enlarge.)
California has enacted a new law giving judges greater authority to remove individual prosecutors - and in some instances entire prosecutorial offices - from cases if they willfully withhold evidence from the defense. Passage of the law was prompted by disclosure of systemic misuse of jailhouse informants by Orange County prosecuters, which led Superior Court Judge Thomas Goethals (pictured) to bar the entire Orange County District Attorney's Office from participation in a death penalty case earlier this year. That misconduct included secretly using jailhouse informants to elicit confessions from suspects after they had invoked their right to counsel - a practice that has been declared unconstitutional - lying to the courts about the use of informants, and withholding potentially exculpatory evidence. In addition to providing judges expanded authority to remove offending prosecutors from cases, the new law requires judges to report such prosecutors to the state bar, which may take disciplinary action. While denying that there had been any "interntional bad faith withholding of evidence" by prosecutors in his office, Orange County District Attorney Tony Rackaukus praised the statute, calling it "a good law." Jeff Thoma, the president of California Attorneys for Criminal Justice, said, "The public deserves to have confidence that prosecutors are committed to playing by the rules instead of trying to win at all costs. I applaud the passage of AB1328 and it being signed into law. I believe this has the positive effect of insuring greater due process by reducing (discovery) violations and holding those accountable that do so in bad faith."
A group of death row exonerees, including Kwame Ajamu (pictured), held a press conference in Cleveland on October 9 in which they called for the end of the death penalty. Ajamu - the nation's 150th death-row exoneree - was freed from Ohio's death row in 2014 along with his brother, Wiley Bridgeman, and another man, Ricky Jackson. The three had been convicted 39 years earlier on the testimony of a 12-year-old boy who later recanted, saying he had been pressured by police. "We hope that we can end this atrocity today. We hope that tomorrow's newspapers would say that there's no more death penalty.... If there's anything that I would beg for this country, for this world to listen to is the heartfelt cries and pleas of myself and fellow comrades who have been exonerated from death," Ajamu said. He was one of about 20 exonerees who appeared at the event, which was organized by Witness to Innocence, a national organization of death row exonerees. State Representative Nickie Antonio, who has introduced a bill to abolish the death penalty, said, "The best reform is to abolish capital punishment and replace it with a sentence of life without parole. It is time to execute justice, not to execute people."
The U.S. Supreme Court heard oral argument on October 13 in Hurst v. Florida, a case challenging provisions in Florida's death penalty statute that do not require jurors to unanimously agree to the facts that could subject a defendant to a death sentence or to reach unanimity before recommending that the judge sentence a defendant to death. Florida is one of just three states that does not require a unanimous jury verdict when sentencing someone to death. A study by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that requiring jury unanimity in Florida, Alabama, and Delaware would have caused a dramatic drop in death sentences over the last 5 years. Overall, the three states would have returned 26 death sentences since 2010, instead of 117 - a 77% drop - and Florida would have imposed 70% fewer death verdicts. The three states that do not require unanimity in death sentencing have produced a disproportionate share of the nation's death sentences, accounting for 28% of all U.S. death sentences since 2010. Had these states followed the sentencing system used by every other death penalty state, the total number of death sentences imposed in the United States would have decreased by 21%. (Click image for full infographic.)
In an op-ed for the Pittsburgh Post-Gazette, former corrections official David Rose criticizes the arbitrariness and dehumanizing nature of the death penalty. Rose, who spent 30 years working in corrections in Pennsylvania, Florida, and New Jersey, said, "I don’t think the public realizes the impact that executions have on the public servants who are tasked with carrying them out." Rose draws on his own experiences and those of his colleagues to describe the toll that capital punishment takes on people who work in prisons. He says he knows of no corrections officials who believe the death penalty is necessary for the safety and security of prison personnel, but has met a number who considered the death penalty "a waste of money that caused serious security issues when executions were actually carried out." Rose said it is "sometimes difficult to distinguish those who end up on death row from those who get lesser sentences based on their crimes or level of culpability" and describes a time he was assigned to monitor a newly death-sentenced inmate until he could be transferred to death row: "I still remember the time that I spent sitting outside the cell of that condemned inmate, thinking of how absurd it was that my employment could one day depend on getting some inmates ready for release and another day on keeping an inmate alive so the state could kill him." Rose recommends other programs in place of the large amounts taxpayers spend on the death penalty.
"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.
A report by The Oklahoman has revealed that Oklahoma violated its execution protocol and used the wrong final drug during the execution of Charles Warner on January 15, 2015. Warner, whose final words were "My body is on fire," was executed using potassium acetate, the same drug that was delivered for Richard Glossip's aborted execution on September 30. The drug called for in the protocol is potassium chloride. Glossip's execution was stayed as a result of the mix-up, and Attorney General Scott Pruitt requested an indefinite hold on executions so his office could investigate. "I want to assure the public that our investigation will be full, fair and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said. Dale Baich, who represented Oklahoma death row inmates in Glossip v. Gross, said, "We cannot trust Oklahoma to get it right or to tell the truth. The State’s disclosure that it used potassium acetate instead of potassium chloride during the execution of Charles Warner yet again raises serious questions about the ability of the Oklahoma Department of Corrections to carry out executions."
On October 6, Montana District Court Judge Jeffrey Sherlock (pictured) held that the state's proposed lethal injection protocol violated state law, which requires that an "ultra fast-acting barbiturate" be used in executions. Judge Sherlock said the proposed barbiturate, pentobarbital, does not qualify as such a drug. The ruling stated, "The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision." In 2012, a judge struck down Montana's three-drug protocol because it differed from the two-drug protocol called for in state law. As a result of the most recent ruling, executions in Montana will continue to be on hold indefinitely. “The State has had multiple opportunities to correct the problems with the death penalty protocol. And each time they came up with a new flawed procedure,” said ACLU Legal Director Jim Taylor. “Seven years of litigation has demonstrated that Montana's death penalty is broken beyond repair." Montana has carried out three executions since 1976, the last of which was in 2006. Earlier in 2015, a bill to repeal the death penalty failed on a tie vote in the House of Representatives.
Eight death-row prisoners whom Arkansas has scheduled to be executed in the next four months have asked a judge to issue a preliminary injunction that would put their executions on hold. They argue that the state's execution procedures are unconstitutional for multiple reasons and that Arkansas' secrecy law violates a previous settlement agreement between death row inmates and the state. Arkansas, which has not carried out an execution since November 2005, has scheduled eight executions for four dates (two executions on each date) between October of this year and January 2016, even though legal challenges to the constitutionality of the state's execution procedures were pending in state court and were scheduled to proceed to trial. The state recently passed a bill that allows the Department of Correction to keep the source of execution drugs secret. Jeff Rosenzweig, an attorney for the death row inmates, said the secrecy law violates an agreement in which the state agreed to tell inmates the source of lethal injection drugs in exchange for the inmates dropping part of a prior lawsuit challenging the state's execution protocol. The inmates argue that, without knowing the manufacturer of the drugs, they cannot determine whether the execution may constitute cruel and unusual punishment. They are seeking a preliminary injunction blocking executions from proceeding until the case is decided. A state trial court has moved the hearing date for the inmates' lawsuit from October 23 to October 7. In June 2012, the Arkansas Supreme Court struck down the state's prior execution law as violating the state constitution. [UPDATE: On October 9, the Arkansas trial court judge who is presiding over the inmates' challenge to the state's execution process granted a temporary restraining order staying all of the scheduled executions. The court ruled that the prisoners would suffer "immediate and irreparable injury" if they were executed and that proceeding with the executions, without affording the parties an adequate opportunity for discovery and to resolve the legal issues in the case "will rob Plaintiffs of an opportunity to litigate their rights under the Arkansas Constitution."]