As Colorado's Senate Judiciary Committee considers SB 95—a bill that would replace the death penalty with life in prison without the possibility of parole—the editorial boards of The Denver Post and The Durango Herald have urged the legislature to end capital punishment in the state. Colorado's death penalty system "is broken beyond repair and needs to be repealed," wrote The Denver Post. Repeal, it said, "would save the state millions in both the prosecution and defense of murderers and an untold number of judicial man hours that have so infrequently resulted in death." The Post editorial also highlighted the unwillingness of Colorado juries to impose death sentences, noting that the highly-publicized capital cases of James Holmes and Dexter Lewis both resulted in life sentences. The Durango Herald editorial board also called for repeal, agreeing with the arguments advanced by Republican legislators in the neighboring mountain states of Utah and Nevada that the death penalty "is a failed public policy, is a waste of taxpayer dollars, the risk of executing innocent people is too high and it causes unnecessary harm to victims’ families." The Herald editorial also emphasized the high cost of capital punishment—quoting estimates by the American Civil Liberties Union of Colorado "that the average death penalty trial costs $3.5 million, compared to $150,000 for a trial for life without parole"—and that Colorado has had only one execution in 50 years. In 2013, citing arbitrariness and unfairness in the application of the state's death penalty, Governor John W. Hickenlooper granted a reprieve to Nathan Dunlop, one of three men on Colorado's death row. A 2015 study published in the University of Denver Law Review subsequently showed that prosecutorial decisions to seek the death penalty in Colorado "depend to an alarming extent on the race and geographic location of the defendant." All of Colorado's death-row prisoners are African-American men from the municipality of Aurora. SB 95 would apply prospectively to future crimes, but would not affect the cases of the prisoners currently on death row. [UPDATE: After holding hearings on SB 95, the Senate Judiciary Committee voted 3-2 to defeat the bill. The vote effectively ends death penalty repeal efforts in the state for the 2017 legislative session.]
The U.S. Court of Appeals for the Third Circuit on February 9 declared unconstitutional Pennsylvania's long-standing practice of automatically keeping capital defendants in solitary confinement after courts had overturned their death sentences. Saying that, “Scientific research and evolving jurisprudence has made the harms of solitary confinement clear,” the unanimous three-judge panel ruled that prisoners whose death sentences have been overturned have a constitutionally protected interest against being held in solitary confinement, unless the state could show, after an individualized assessment, that such custody was necessary for security and safety reasons. Shawn Walker and Craig Williams, the former death row prisoners who brought the suit, had spent 14 and 22 years, respectively, in solitary confinement on death row before courts vacated their death sentences. Then each was kept on death row without a death sentence for the six additional years it took to conduct the resentencing proceedings in their cases. In barring continued treatment of inmates like Walker and Williams as death-row prisoners without any demonstrated security need to do so, former Chief Circuit Judge Theodore McKee warned that "Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty. Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row." According to a July 2015 DPIC analysis of Pennsylvania death row, 115 former death-row prisoners whose convictions or death sentences had been overturned in post-conviction proceedings had been resentenced to life or less, or acquitted. Most had been kept in death-row solitary confinement without active death sentences before being resentenced or exonerated.
In a guest column for the Cleveland Plain Dealer, retired federal appeals court judge Nathaniel R. Jones (pictured) urged Ohio to "reconsider its race to death" in scheduling executions while the constitutionality of the state's lethal injection process remains in question. Jones, who served on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002, criticized the state's proposed use of the drug midazolam in executions, describing Ohio's 2014 execution of Dennis McGuire using the drug, in which witnesses said McGuire "gasped loudly for air and made snorting and choking sounds for as long as 26 minutes" before dying. In its aftermath, Ohio temporarily halted executions and announced that it would not use midazolam—which has now been implicated in botched executions in four states—in the future. Jones wrote that, since the McGuire execution, "even more information has emerged about how unsuitable midazolam is for lethal injection." But despite its prior announcement and the additional evidence concerning midazolam, Ohio in 2016 proposed a new three-drug protocol that included midazolam as the first drug, and the state is defending that protocol in court. After a five-day hearing in which the court heard extensive expert testimony, U.S. Magistrate Judge Michael Merz held that Ohio had failed to prove that midazolam does not present a substantial risk of harm and declared the state's proposed execution protocol unconstitutional. Despite the on-going litigation, Ohio set new execution dates both before and after the hearing. "Ohio officials must not risk another unconstitutional execution," Jones wrote. "That can be done only by placing executions on hold while courts take the time necessary to consider whether Ohio's problematic protocol passes constitutional muster." He called on Ohio officials "to agree not to resume executions until the courts determine a lawful method." On February 10, Ohio Governor John Kasich announced that he was rescheduling eight executions as the state appealed the magistrate judge's ruling. The earliest execution, which had previously been scheduled for February 15, was moved to May 10.
According to a new poll, nearly two-thirds of Utah residents say they prefer some form of life sentence, rather than the death penalty, as the punishment for murder, and a majority support replacing the death penalty with a sentence of life without possibility of parole. The statewide poll of 784 Utah voters conducted by Public Policy Polling on January 13-15, 2017 and released on February 9 found that Utah residents preferred life-sentence alternatives over capital punishment by a margin of 35 percentage points. 47% said they preferred life in prison without parole, plus a requirement that the convicted person work in prison to pay restitution to the victims; 9% selected life in prison without parole; 8% chose life in prison with a possibility of parole after 40 years; and 29% preferred the death penalty. The preference for alternatives held true across political party, religion, age, gender, and race. The poll also found that a majority (53%) of Utahns said they would strongly or somewhat support a bill to replace the death penalty with life without parole, a measure estimated to save the state more than $1.6 million per case. 41% of respondents opposed the bill. “The death penalty is losing favor in our state because it wastes tax dollars, is ineffective in stopping violent crime, and risks possibly killing an innocent person, and none of those things align with our conservative principles,” said said Kevin Greene, Organizing Director of Utah Conservatives Concerned About the Death Penalty, a project of the Utah Justice Coalition. In 2016, a death penalty repeal bill sponsored by Republican Senator Steve Urquhart passed the Utah Senate and a House legislative committee, but was not considered by the full House before the legislative session ended.
Legislative committees in Florida and Alabama have voted to advance bills that would reform capital sentencing procedures in those states that have been the subject of extensive constitutional challenges. In Florida, the Senate Criminal Justice Committee by a vote of 6-0 approved a bill that would require a jury to unanimously recommend a death sentence before the trial judge could sentence a defendant to death. The bill would bring Florida's sentencing procedure in line with a Florida Supreme Court ruling that had declared unconstitutional death sentences that were imposed after one or more jurors had recommended a life sentence. In Alabama, the Senate Judiciary Committee approved a bill to end Alabama's practice of judicial override. Alabama is currently the only state that allows judges to override a jury's recommendation of a life sentence and impose a death sentence. Senator Dick Brewbaker (R - Montgomery), who sponsored the bill, raised concerns about political pressure on elected judges. A majority of overrides in the last 10 years happened in election years. “I’m not saying anyone has any evil intent,” Brewbaker said. “I’m not arguing about constitutionality, but there’s no way to take politics out of politics. It’s like taking the wet out of the water. It can’t be done.” According to research by the Equal Justice Initiative, judges have used their override power to impose death sentences over jury recommendations for life 101 times, but overrode jury recommendations for death and imposed life sentences just 11 times. The U.S. Supreme Court has remanded four death penalty cases to Alabama's courts for a determination of the constitutionality of the state's sentencing practices—including judicial override. The Alabama courts have upheld the practice, and in December 2016, Alabama executed Ronald Smith despite a 7-5 jury recommendation that he be sentenced to life.
More than 2,600 Florida cases—including at least one capital case—may have been tainted by erroneous fingerprint analysis by a long-term employee of the Orange County Sheriff's Office, according to letters sent to defense counsel by the Orange-Osceola State Attorney's Office. The revelations were another in a series of events raising questions about the reliability of forensic evidence that is being used in capital prosecutions across the United States. In early February 2017, the Orange-Osceola State Attorney's Office contacted defense attorneys in cases that involved Marco Palacio, a 17-year employee of the county sheriff's office, to alert the defense to a pattern of “clerical errors, failure to identify prints of value and the mislabeling of print cards” by Palacio. At least one death row inmate, Bessman Okafor, is among the affected defendants. Orlando defense attorney Hal Uhrig said, “The wrong name on the wrong card, and all the sudden you get confirmation of a print that’s not there. That’s serious stuff.” The integrity of cases in Arizona was also called into question a few months earlier, after an investigation by KPNX found that Norman Wade, the lab director of the Maricopa County Medical Examiner's Office, had a felony conviction for stealing a gun that had been entered as evidence at his previous job in Ventura County, California. The chief medical examiner was aware of Wade's conviction when Wade was hired, but the information was never presented to defense attorneys in cases in which Wade had testified. Kindra Fleming, of the Arizona Justice Project, said, “I think juries had the right to at least hear it to evaluate for themselves whether this goes to his credibility. ...Especially in these significant cases where people are now spending their lives in prison or sitting on death row." In 2015, The Federal Bureau of Investigation admitted that examiners from the agency's microscopic hair comparison unit had for decades provided flawed forensic testimony, including in at least 32 capital cases. A 2009 study, Invalid Forensic Science Testimony and Wrongful Convictions, found that flawed forensic analysis by prosecution witnesses was present in 60% of the trials of defendants who were later exonated by DNA testing.
In a February 6 editorial, The New York TImes hails the reform efforts of the "new generation" of state and local prosecutors who are working to change the United States' criminal justice system, and especially the use of the death penalty. The Times highlights the comments of two newly elected local prosecutors, Beth McCann, the new prosecutor in Denver, Colorado, and Kim Ogg, the new district attorney in Harris County, Texas. McCann has said her office will not seek the death penalty because she does not think "that the state should be in the business of killing people." Ogg has pledged that there will be “very few death penalty prosecutions" during her tenure as district attorney. The Times also notes the leadership of state elected officials, pointing to Washington state, where current Democratic Attorney General, Bob Ferguson, and his Republican predecessor, Rob McKenna, are jointly supporting a death penalty repeal bill. "Prosecutors aren’t just seeking fewer death sentences; they’re openly turning against the practice, even in places where it has traditionally been favored," the editorial states, citing the historically low number of death sentences in 2016. Emphasizing the influence of these state and local officials, it calls the role of prosecutor, "one of the most powerful yet least understood jobs in the justice system." Their role is especially critical as national leaders present a "distorted ... reality of crime in America" in support of a "law and order" agenda, the Times says. "In these circumstances, the best chance for continued reform lies with state and local prosecutors who are open to rethinking how they do their enormously influential jobs."
On February 3, Australia marked 50 years since its last execution. That execution—the hanging of Ronald Joseph Ryan on February 3, 1967 for the murder of a prison guard during an escape attempt—came at a time in which support for capital punishment in the country was already waning. The state of Victoria, where Ryan was executed, had not had an execution since 1951. Though certain crimes carried a mandatory death sentence, the state government cabinet had commuted 34 of the other 35 death sentences imposed in the intervening 16 years. The Australian High Court had overturned the one other death sentence. A man who served on Ryan's jury said none of the jurors believed he would actually be executed, and seven of them wrote to the cabinet in favor of clemency. The Melbourne Herald, a conservative-leaning newspaper, editorialized against the execution in January 1967, saying, "The state government's insistence on this final solution is causing the deepest revulsion. It is punishment in its most barbarous form. And experience has shown it gains nothing but dishonour for the community which inflicts it." Eight years later, Victoria abolished the death penalty, and every Australian state repealed it by 1985. Since that time, Australians have grown more opposed to the death penalty. According to the BBC, the most recent national poll, conducted in August 2009, found 23% of Australians support the death penalty and 64% oppose it. In 2010, the national government, in keeping with an international treaty, passed laws banning the reintroduction of capital punishment. The Australian giovenment has been active in calling for the global abolition of capital punishment. In an interview with the Australian Broadcasting Company at the time of the 6th World Congress Against the Death Penalty in Oslo, Norway in June 2016, Australia's Special Envoy for Human Rights, Philip Ruddock, 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."
At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental IllnessPosted: February 3, 2017
Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."
A Texas federal appeals court has upheld the ruling by a U.S. district court judge to stay the execution of John Henry Ramirez, who had been scheduled to be executed in Texas on February 2. The District Court had ruled that Ramirez was entitled to a stay so new lawyers could seek clemency on his behalf after Michael Gross, the lawyer initially appointed to represent Ramirez in his state and federal habeas corpus proceedings, had failed to file a clemency petition and left Ramirez "effectively without counsel" at the time of his death warrant. The court did not rule on a second issue alleged by Ramirez's new counsel, that Gross had an inherent conflict of interest in the case because he had provided ineffective representation in state court and could not be expected to litigate his own ineffectiveness as part of the federal habeas corpus proceedings. After the federal courts denied his habeas petition, Ramirez informed Gross that he wanted to replace him as counsel, and asked him not to file a clemency petition because he wanted his new attorney to do that. The district court held that "Gross had a duty to either (1) inform the Court of his client’s wishes and seek the substitution of new counsel or (2) ensure that a clemency petition was filed on his client’s behalf. Gross did neither. Gross’ inaction prevented judicial consideration of whether the circumstances required the substitution of counsel." The court also noted that Gross had previously failed to file key motions in the death penalty case of John Battaglia, requiring the courts to issue a stay of execution in December 2016 in that case. In Battaglia's case, Gross had refused to filed a state competency petition, saying that fell "outside the scope" of his representation. The Texas Attorney General's Office appealed Ramirez's stay to the U.S. Court of Appeals for the Fifth Circuit, arguing that Gross's action constituted "gamesmanship," not abandonment. A three-judge panel of the court disagreed and dismissed the state's motion to vacate the stay.