On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.
In a recent article for the Georgetown Law Journal, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit calls for sweeping reforms in the criminal justice system. The former Chief Judge, who was appointed by President Reagan in 1985, outlined a number of "myths" about the legal system, raising questions about the reliability of eyewitness testimony, fingerprint evidence, and even DNA evidence, which can easily be contaminated. Judge Kozinski directed his harshest critism at the limitations the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes on federal habeas corpus review of state criminal cases. He pointed to the case of Ron Williamson, the death-row inmate who was the subject of the John Grisham book, The Innocent Man, who five days before his scheduled execution obtained a stay from the federal courts "that began a process culminating in Williamson’s exoneration." AEDPA, he says, "abruptly dismantled" this habeas corpus "safety-value," and has "pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred." Instead, federal courts "now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted." He calls AEDPA "a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed." Judge Kozinski also examines the roles of decision makers in criminal cases, highlighting such myths as "juries follow instructions," "prosecutors play fair," and "police are objective in their investigations." He recommends reforms to improve the accuracy and fairness of trials, including requiring "open file discovery" - meaning that all prosecution evidence related to a case is made available to the defense - and adopting more rigorous standards for eyewitness identification, suspect interrogations, and the use of jailhouse informants. He also advocates for the elimination of elected judges, noting that studies show "that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty" and that elected judges often face political retaliation for ruling in favor of the defense or for sanctioning prosecutors for instances of misconduct.
According to Charles J. Ogletree, Jr., a Harvard law professor who taught President Obama and the First Lady when they were law students, the President may be changing his views on capital punishment. Obama has said that he supports executions for "especially horrific" murders, but has also raised concerns about the death penalty. Ogletree said that Obama's recent focus on racial bias in the criminal justice system, as well as declining public support for the death penalty, may drive the President to oppose capital punishment. "He's not there yet, but he's close," Ogletree said. "Even if he doesn't change his mind in the next year and a half, I think the public's point of view is going to influence him." A former strategist for President George W. Bush, Matthew Dowd, recently compared changing public views on the death penalty and same-sex marriage, saying, "Twenty years from now, people that are for the death penalty are going to be in the same place as people that are against gay marriage." In 2014, Obama commented on the death penalty after the botched execution of Clayton Lockett. "In the application of the death penalty in this country, we have seen significant problems -- racial bias, uneven application of the death penalty," he said. A growing body of research supports Obama's statement about racial bias. For example, a study in Philadelphia found that the odds of a jury handing down a death sentence were 29 times higher if the defendant was black, and that murder cases involving a black defendant and a white victim resulted in death sentences at 5 times the rate of cases in which the races were reversed.
STUDY: Missouri Study Finds Significant Racial and Geographic Disparities in Application of Death PenaltyPosted: July 20, 2015
A new study by Professor Frank Baumgartner of the University of North Carolina at Chapel Hill finds stark racial and geographic disparities in the application of the death penalty in Missouri. A majority of Missouri's executions came from just 2.6% of the state's counties, mirroring national trends, as 2% of U.S. counties have produced 52% of all executions since 1976. St. Louis County - the home of Ferguson, Missouri - has carried out more executions than any other Missouri jurisdiction. A person convicted of homicide in that county is three times more likely to be executed than someone convicted of the same crime elsewhere in the state and is 13 times more likely to be executed than for having committed the same crime in neighboring St. Louis City. Baummgartner also found significant racial disparities, particularly relating to the race of victims. Homicides involving white victims were 7 times more likely to result in executions than those involving black victims. Although 60% of murder victims in Missouri are black, 81% of people executed in Missouri had been convicted of killing white victims. Cases involving white female victims were 14 times more likely to result in execution than those involving black male victims. "If left unaddressed, these racial, gender, and geographic disparities may erode judicial and public confidence in the state’s ability to fairly administer the ultimate punishment," Baumgartner concludes. "A punishment that is so arbitrarily and unfairly administered could reasonably be deemed unconstitutional." (Click image to enlarge.)
According to a study by the Women Donors Network, 95% of elected prosecutors in the U.S. are white and 79% are white men. An analysis by DPIC of the study's data further shows that, in states that have the death penalty, 94.5% of elected prosecutors are white. In 9 death penalty states (Colorado, Delaware, Idaho, Montana, Oregon, South Dakota, Tennessee, Washington, and Wyoming), 100% of elected prosecutors are white. These numbers reveal that there has been little change from the time of a 1998 study that found that 97.5% of District Attorneys in death penalty states were white. Prosecutors wield significant power in criminal cases, making decisions about whether to accept plea deals and whether or not to seek the death penalty in capital murder cases. This discretion can be a source of racial disparities in sentencing. “What this shows us is that, in the context of a growing crisis that we all recognize in criminal justice in this country, we have a system where incredible power and discretion is concentrated in the hands of one demographic group,” said Brenda Choresi Carter of the Women Donors Network. Bryan Stevenson, director of the Equal Justice Initiative, said, “I think most people know that we’ve had a significant problem with lack of diversity in decision-making roles in the criminal justice system for a long time. I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.” (Click image to enlarge)
Two new studies suggest that a defendant's facial appearance predicts whether he is sentenced to life or to death, regardless of actual guilt or innocence. A study of Florida inmates published in the July 15 edition of Psychological Science finds that the perceived degree of trustworthiness of a defendant's face predicted which of the two sentences a defendant who has been convicted of murder ultimately received. A follow-up study also showed that the link between perceived untrustworthiness and the death penalty persisted even when study participants viewed innocent people who had been exonerated after having originally been sentenced to death. Researchers John Paul Wilson (pictured, l.) and Nicholas Rule (pictured, r.) of the University of Toronto showed participants photos of Florida inmates who had been convicted of first-degree murder and sentenced either to life without parole or death. Participants rated the trustworthiness of each face, without knowing that the person pictured had been convicted of any crime. The inmates who had been sentenced to death had faces that the raters perceived to be less trustworthy than the faces of those who had been sentenced to life. The less trustworthy a face was rated, the more likely it was that the inmate had been sentenced to death. "Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone," Wilson and Rule said. A follow-up study included the faces of individuals who had been convicted and later exonerated. Even among the exonerees, lower trustworthiness ratings correlated with higher likelihood of a death sentence. "This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth," the authors explained.
Citing a backlash from his controversial statements about the death penalty, Dale Cox (pictured), the Interim District Attorney of Caddo Parish, Louisiana, announced on July 14 that he will not run for District Attorney this fall. Nearly half of the death sentences imposed in Louisiana in the last five years have come from Caddo Parish. Cox himself has prosecuted one third of the Louisiana cases that have resulted in death sentences since 2010. In March 2015, he told The Shreveport Times that he believed the state needs to "kill more people." In 2014, he wrote a memo regarding the case of Rodricus Crawford, saying that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was sentenced to death for allegedly killing his infant son, in spite of forensic evidence of sepsis in the boy's blood that suggested he had died from pneumonia. Cox told the New Yorker that he doesn't believe that the death penalty has a deterrent effect, but believes it is justified as a form of societal revenge: "Over time, I have come to the position that revenge is important for society as a whole. We have certain rules that you are expected to abide by, and when you don’t abide by them you have forfeited your right to live among us." In the wake of the national attention to Cox's comments, he announced that he would not seek election to the position of District Attorney. "I have come to believe that my position on the death penalty is a minority position among the members of this community and would continue to be a source of controversy," he said. "Our community needs healing and not more controversy." Historically, Caddo Parish had more lynchings than all but one other county in the South in the decades after the Civil War. From 2010 to 2014, it sentenced more people to death per capita than any other county in the United States.
In two separate guest columns for The Commercial Appeal (Memphis, TN), four state legislators urged an end to the death penalty in Tennessee. State Representatives Steve McManus (top left) and Mark White (top right), both Republicans, called capital punishment, "a lousy return on our investment." Estimating that Tennessee's death penalty is similar in costs to North Carolina's $11 million-per-year system, they listed some alternative uses for death penalty funds. "270 patrol officers. 361 state troopers. 228 detectives and criminal investigators. 110 new school buses. 239 teachers. Compensation for 367 crime victims and their families." They go on to raise concerns about the accuracy of capital convictions in Tennessee, which has executed six inmates and exonerated three. "Six-and-three isn't bad if you're playing football. It's not very good if you're deciding life or death." On the other side of the aisle, Democratic State Sen. Lee Harris (bottom left) and State Rep. Johnnie Turner (bottom right) called the death penalty, "broken," giving four reasons for their opposition to capital punishment. "First, we should be investing in infrastructure, schools, police and emergency services, and public transportation, among others...Second, executing an innocent person is an unacceptable risk...Third, the death penalty affects innocent people in other ways, too...the evidence shows that some people, when faced with the prospect of death, will falsely admit to taking a life to save their own...Fourth, we could be doing more for victims' families." They conclude, "In the end, the death penalty is a needless source of ongoing contention, and it takes up too much of our valuable time and resources while we're trying to work through all the other problems our criminal justice system is facing."
A recent article in The Economist highlights continuing long-term international trends away from the death penalty. Since December, three countries - Fiji, Madagascar, and Suriname - have abolished the death penalty, increasing the number of abolitionist countries to above 100. In December, 117 countries voted to support a United Nations resolution for an international moratorium on executions. The article notes a few outlier countries, including the United States and China, in which executions persist and that there has been a rise in executions in portions of the Muslim world. In the U.S., however, death sentences were down and numerous metrics point to the decline of capital punishment. "Of the 31 states that still have the death penalty, half have executed no one since 2010...In 1994 80% of Americans said they endorsed the death penalty in principle. The Pew Research Centre reckons that fewer than 60% do so today—and notes that young Americans are less keen than their elders." Even in China, which carries out more executions than any other nation, the use of the death penalty is on the decline. "The number is a state secret but the Dui Hua Foundation, an American NGO, reckons there were about 2,400 [executions] in 2013, the last year it has been able to track. Campaigns against corruption and terrorism mean the fall may not have continued last year. But the long-term trend is steeply down. In 1983 24,000 people are thought to have been executed." (Click image to enlarge.)
A majority of Texas death row prisoners who voluntarily responded to a recent survey by the Texas Observer reported having experienced abuse or other trauma as children. The survey results are consistent with the findings of academic studies that have repeatedly documented high rates of childhood abuse among those sentenced to death. The Texas Observer survey found that 22 of the 41 death row prisoners who responded (54%) volunteered having experienced "violent or abusive" childhoods. An additional nine death row prisoners (22%) described their childhoods as having been “hard,” typically citing impoverished conditions and high-crime neighborhoods. Psychiatric research shows that childhood trauma affects developing brains in lasting ways. "The Cycle of Violence," published by the American Psychological Association, found 94% of the 43 inmates studied had been physically abused, 59% sexually abused, and 83% had witnessed violence in adolescence. “Adverse Childhood Experiences and Adult Criminality,” a 2013 study published in The (Kaiser) Permanente Journal, compared a group of 151 offenders with a sample of the general population, finding that "the offender group reported nearly four times as many adverse events in childhood as the control group." Drs. Mark Cunningham and Mark Vigen, who reviewed the findings of seven clinical studies of death row prisoners for the journal Behavioral Sciences & the Law reported that the pathological family interactions experienced by capital murderers are consistent with an extensive body of research lnking the experience of abuse and neglect to later violence. Psychiatrist Frank Ochberg, founder and chairman emeritus of the Dart Center and a pioneer in the study of trauma, said that while "not all criminality is the product of childhood abuse[,] ... these early adverse situations reduce the resilience of human biology and they change us in very fundamental ways. Our brains are altered. And that’s what this research is bearing out.”