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In a unanimous decision issued December 21, the Pennsylvania Supreme Court upheld Gov. Tom Wolf's (pictured) imposition of a moratorium on executions while he awaits the results of a legislative commission's report on Pennsylvania's death penalty. On February 13, 2015, Wolf issued a temporary reprieve to Terrance Williams and announced that he would put all executions on hold. At that time, he said that Pennsylvania's "capital punishment system has significant and widely recognized defects" and was "ineffective, unjust, and expensive." Prosecutors challenged the governor's authority to issue reprieves of indefinite duration that were based upon systemic concerns. The Court disagreed. Writing for the Court, Justice Max Baer said, "at the time the reprieve power was adopted in the 1790 Constitution, the Governor's authority to issue a reprieve was not understood as being limited to granting reprieves with a specific end date or for a purpose relating only to the prisoner's unique circumstances, but rather encompassed any temporary postponement of sentence." Williams' case is also pending before the U.S. Supreme Court on a separate issue - whether former Pennsylvania Supreme Court Chief Justice Ronald D. Castille should have recused himself from hearing the appeal of a lower court decision reversing Williams' death sentence because of prosecutorial misconduct by the Philadelphia District Attorney's office while Castille was District Attorney. Castille had personally authorized Williams' prosecution in his role as D.A. and had campaigned for judge based upon his record of having sent more than 40 defendants to death row. The state appeals court overturned the trial court's decision and reinstated Williams' death sentence. Two judicial groups and six legal organizations, including the American Bar Association and the American Academy of Appellate Lawyers, recently filed amicus briefs supporting Williams' position that Castille should have recused himself and that his participation tainted the court's decision to return Williams to death row.
The North Carolina Supreme Court has reversed the historic rulings of a Cumberland County, N.C. trial court that had overturned the death sentences of four North Carolina death-row prisoners under the state's Racial Justice Act. Ruling entirely on procedural grounds, the state's high court expressed no opinion on the lower court's fact findings that North Carolina prosecutors had engaged in a decades-long practice of intentional race discrimination in jury selection in capital cases. In April 2012, Superior Court Judge Gregory Weeks overturned the death sentence imposed on Marcus Robinson (pictured, left),holding that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of Robinson’s trial. After a second hearing in the cases of Quintel Augustine, Christina Walters, and Tilmon Golphin, the court again found that “a wealth of evidence show[ed] the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” After the lower court overturned these death sentences and imposed sentences of life without parole, the North Carolina legislature repealed the Racial Justice Act law. In its ruling, the North Carolina Supreme Court said that the trial court should have given prosecutors more time to prepare for the evidentiary hearing at which the prisoners presented a comprehensive statistical analysis of North Carolina's exercise of discretionary strikes in capital prosecutions over a 20-year period. Writing that "fundamental fairness" required that the state be given "an adequate opportunity to prepare for this unusual and complex proceeding," the court invited both sides to present additional statistical evidence at a new hearing. In the second case, the court also said the three prisoners' Racial Justice Act claims should have been heard separately. Executions have been stayed indefinitely in North Carolina pending resolution of the Racial Justice Act litigation and will remain on hold.
Three quarters of American executions in 2015 involved cases of "crippling disabilities and uncertain guilt," according to a report by the Charles Hamilton Houston Institute for Race and Justice at Harvard University. Saying that the 2015 executions revealed "a broken capital punishment system," the report found that, "[o]f the 28 people executed [in 2015], 75% were mentally impaired or disabled, experienced extreme childhood trauma or abuse, or were of questionable guilt." It said seven people who were executed suffered from serious intellectual impairment or brain injury, including Warren Hill, who even the state's doctors agreed had intellectual disability, and Cecil Clayton, who lost 20% of his prefrontal cortex as a result of a sawmill accident. An additional seven suffered from serious mental illnesses. One, Andrew Brannan, was a decorated war veteran whom the Veterans Administration had classified as 100% disabled as a result of combat-related Posttraumatic Stress Disorder from his service in Vietnam. The report identified five more cases in which the executed prisoners had experienced extreme childhood trauma and abuse, and another two - Lester Bower and Brian Keith Terrell - in which it said the executed men "were potentially innocent." The report also highlighted developments described in DPIC's Year End Report, including the increasing isolation of death penalty use to a small number of jurisdictions. "Only a handful of outlier counties still impose the death penalty," the report said, and an examination of practices in those counties often "reveals themes of overzealous prosecutors who often bend the rules, poorly performing defense lawyers, and a legacy of racial bias." As a result, "these outlier counties tend to [also have] an unacceptable history of convicting the innocent and individuals with crippling mental impairments." (Click image to enlarge.)
The U.S. Court of Appeals for the 5th Circuit has ruled in favor of Kevan Brumfield, upholding the decision of a Louisiana federal district court that he is intellectually disabled and therefore ineligible for execution. Louisiana's state courts had initially denied Brumfield resources to investigate evidence of his intellectual disability and then dismissed his case without an evidentiary hearing, finding that he had not presented sufficient evidence to justify further review of the issue. A federal district court then granted Brumfield funds to investigate and develop facts supporting his claim, conducted a hearing, and found him to be intellectually disabled. An earlier ruling by the 5th Circuit had reversed the district court's decision on procedural grounds, saying that the district court should have deferred to the Louisiana state courts. It did not address the portion of the lower court's ruling that Brumfield was intellectually disabled. Brumfield's case was then heard by the U.S. Supreme Court, which ruled by a 5-4 vote on June 18, 2015 that the district court had properly granted Brumfield a hearing on his intellectual disability. The Court held that Louisiana had unreasonably determined that Brumfield's evidence was insufficient to warrant an evidentiary hearing and remanded the case back to the 5th Circuit with directions to rule on the district court's determination that Brumfield was intellectually disabled. The circuit court issued its ruling on December 16, 2015, stating: "Both the state and Brumfield present plausible views of the evidence, although, on balance, Brumfield's witnesses were somewhat stronger and presented a slightly more compelling view...Because the State has not demonstrated clear error on the part of the district court, we AFFIRM the ruling of the district court that Brumfield is intellectually disabled and, accordingly, ineligible for execution." The new finding excludes Brumfield from execution under the Supreme Court's 2002 ruling in Atkins v. Virginia, which found the execution of people with intellectual disabilities unconstitutional.
On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press Release. View a video summarizing the report. (Click image to enlarge.)
Arizona officials have agreed not to schedule any executions until a federal court challenge to the state's lethal injection protocol and secrecy policy is resolved. U.S. District Court Judge Neil V. Wake had previously put the lawsuit on hold while Arizona rewrote its execution protocol. He said the execution hold was necessary to prevent what he called "crisis litigation" -- artificially forcing the court to decide issues in the 60 days before an execution was scheduled to occur. Such litigation, he said, did not allow for adequate consideration of the issues. With the state's agreement not to set new execution dates, Judge Wake will now allow the litigation to proceed. Inmates are suing the state to obtain information about the source of the drugs that will be used in executions. In July 2014, Arizona used midazolam and hydromorphone from anonymous sources to execute Joseph Wood. Arizona's secrecy laws prevented Wood from obtaining key details of how the state intended to execute him. Wood's execution took 2 hours, during which witnesses reported that he gasped and snorted more than 600 times. Arizona later attempted to import sodium thiopental to use in a three-drug protocol, but the shipment was halted by the Food and Drug Administration, which said the drug was being imported illegally.
South Dakota state Senator Arthur Rusch (R-Vermillion, pictured), a former trial court judge who presided over a capital trial in which a defendant was sentenced to death, said he will be introducing legislation next year to repeal the state's death penalty. Rusch said he supports repeal because of the emotional toll of capital trials on juriors and because of the financial impact of capital punishment. As a former Lincoln County circuit court judge, Rusch presided over the 1997 trial of Donald Moeller, and saw firsthand the anguish jurors experienced when they sentenced Moeller to death. Because of that experience, he said, "I think I'm more knowledgeable about the emotional toll. It's really hard on people having to make that decision." On the issue of cost, he said, "I know there’s this reaction that keeping people in jail for many, many years is expensive, but it’s nowhere near as expensive as the court costs." Death penalty abolition bills have previously failed in committee in South Dakota, but Senator Bernie Hunhoff (D-Yankton) said that the support of Republicans like Rusch could change that and allow the state to follow in the footsteps of neighboring Nebraska. "You can see that gradual transformation in Nebraska, and you’re seeing that very same thing here," said Sen. Hunhoff, who has sponsored past repeal bills in South Dakota. South Dakota has three people on death row, and has executed three people since 1976.
Recent court decisions in cases from Georgia and Arkansas reflect continuing judicial uncertainty regarding lethal injection secrecy. On October 12, an Arkansas trial court overturned the state's execution secrecy law and ordered the state Department of Corrections to disclose the drugs that it intends to use in executions and the source of those drugs. In a December 3 opinion requiring disclosure by the following day, Pulaski County Circuit Court Judge Wendell Griffen wrote, "It is common knowledge that capital punishment is not universally popular. That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge." The next day, the state Supreme Court temporarily stayed Griffen's ruling, asking both sides to submit additional written arguments. On December 9, the U.S. Court of Appeals for the 11th Circuit issued a divided ruling in the case of Brian Terrell, denying him a stay of execution but expressing deep concern about execution secrecy. Judges Beverly Martin and Adalberto Jordan said they believed that Georgia's secrecy law created constitutional problems and that the appeals court's earlier rejection of a challenge to secrecy provisions had been wrongly decided. However, they said they were bound by precedent and therefore could not stay Terrell's execution. Judge Martin said, “Of course, I recognize the state’s need to obtain a reliable source for its lethal injection drugs. But there must be a way for Georgia to do this job without depriving Mr. Terrell and other condemned prisoners of any ability to subject the state’s method of execution to meaningful adversarial testing before they are put to death...Indeed, we have no reliable evidence by which to independently evaluate the safety and efficacy of the state of Georgia’s secret drugs. For me, this raises serious due process concerns.” Judge Jordan wrote, "Georgia can certainly choose, as a matter of state law, to keep much of its execution protocol secret, but it cannot hide behind that veil of secrecy once something has gone demonstrably wrong with the compounded pentobarbital it has procured."
"[E]lectoral pressures influence judges' decisions in capital cases," according to a new report by the Brennan Center for Justice at the New York University School of Law. That report, How Judicial Elections Impact Criminal Cases, surveyed numerous empirical studies that had reviewed the effects of judicial elections on outcomes in criminal cases. The vast majority of criminal defendants - including capital defendants - face elected judges at trial and on appeal. According to the report, 87% of state judges face election, and 94% of felony convictions are tried in state courts. The report found that "the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases" in general, but that these pressures also produced identifiable effects in death penalty cases. First, electoral pressures affected trial judges in capital cases. "In Alabama, with its unique system of judicial override, trial judges are more likely to impose death over jury verdicts of life imprisonment during election years," the report said. The report also found that "appellate judges facing re-election are more inclined to affirm death sentences, and less inclined to dissent from orders affirming them." Referencing a recent Reuters study, the report said states with elected supreme court justices had substantially lower rates of reversing death sentences on appeal than states with appointed justices. Justices who ran against other candidates for office were the least likely to vote to reverse a death sentence (11%), and those who faced retention elections reversed only 15% of the time. Justices who were appointed were comparatively more likely to vote to reverse death sentences (26%). The report concludes, "Empirical studies across states, court level, and method of election find that proximity to re-election makes judges more punitive — more likely to impose longer sentences, affirm death sentences, and even override life sentences to impose death. Without reform, terms of incarceration and executions will continue to be determined, in part, by the decision-maker’s proximity to re-election."
Study Shows Trends in Executions, Death Sentences Closely Track Drop in Public Support for the Death PenaltyPosted: December 9, 2015
Historical trends in executions and new death sentences closely track changes in public attitudes about the death penalty and crime in general, according to a comprehensive University of North Carolina analysis of national public opinion surveys on the death penalty. UNC-Chapel Hill Professor Frank Baumgartner has created a statistical index of public support for capital punishment based upon the results of 488 national surveys on the death penalty over the last 40 years. This index documents the close relationship between steep nationwide declines in executions and new death sentences and the historical declines in public support for the death penalty. Baumgartner says the public opinion polls show that support for the death penalty and for punitive criminal justice policies in general have declined substantially since 1976. He observes that "The number of death sentences tracks closely with public opinion toward that form of punishment.... As the public has increasingly spurned the death penalty, death sentences have also declined." Baumgartner's study also shows that the number of counties and states carrying out executions, as well as the number of executions and new death sentences, have all declined in a pattern closely tracking the drop in public support. He concludes, "No matter how we look at it, for the past 20 years, the death penalty has been dying." (Click image to enlarge.)