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Summer 2016 "Death Row USA" Shows Ongoing Decline in Death Row Populations

Posted: October 4, 2016

The NAACP Legal Defense Fund reports that America's death rows have continued to decline in size, with 2,905 men and women on death row across the United States as of July 1, 2016. The new figures, reported in the organization's Summer 2016 edition of its quarterly publication, Death Row USA, represent a 14% decline from the 3,366 prisoners who were on death row one decade earlier. The shrinking of death row populations across the country has exceeded the number of executions during that period, meaning that more prisoners have been removed from death row as a result of having their convictions or death sentences overturned than have been added to the row with newly death-sentenced prisoners. The nation's largest death row states remain: California (741), Florida (396), Texas (254), Alabama (194), and Pennsylvania (175). Nationwide, 42.34% of death row inmates are White, 41.79% are Black, 13.08% are Latino/a, and 2.78% are other races, but racial makeup varies by state. Among the most racially-disproportionate death row populations are Delaware (78% minorities), Texas (73% minorities), Louisiana (70% minorities), Nebraska (70% minorities), and California (66% minorities). Only 55 death row prisoners (1.89%) are women. 

 

U.S. Supreme Court Denies Review of Arizona Case That Could Overturn 25 Death Sentences

Posted: October 4, 2016

In a decision that could affect an estimated 25 Arizona death penalty cases, the U.S. Supreme Court has denied Arizona's request to review a federal appeals court decision declaring unconstitutional an evidentiary rule that limited the types of mitigating evidence capital defendants could present in their cases. The ruling in Ryan v. McKinney let stand a 6-5 decision of the U.S. Court of Appeals for the Ninth Circuit in December 2015 that had reversed James McKinney's 1993 death sentence because the state's so-called "causal nexus" rule unconstitutionally excluded evidence about McKinney's abusive childhood and post-traumatic stress disorder. The Court's ruling could have implications for many of the prisoners on Arizona's death row. The causal nexus rule, which required that mitigating evidence be directly linked to the crime before it could be considered as grounds to spare a defendant's life, had been place in Arizona from the late 1980s until 2005. In 1978, the Supreme Court ruled in Lockett v. Ohio that states could not bar defendants from presenting mitigating evidence relating to their character, background, or record or the circumstances of the case as reasons to impose a life sentence. Four years later, in Eddings v. Oklahoma, it held that states could not require that evidence excuse the murder before it could be considered mitigating. Then, in 2004, in Tennard v. Dretke, it reiterated that any requirement that mitigating evidence have a direct causal link to the offense violated the Eighth Amendment. By denying review, the Supreme Court paved the way for other prisoners whose sentencing was affected by the causal nexus rule to challenge their death sentences. In a dissent to the Ninth Circuit decision, Judge Carlos Bea wrote that the majority decision, "calls into question every single death sentence imposed in Arizona between 1989 and 2005." McKinney's case will return to state court within 120 days for further proceedings, according to the Arizona Attorney General's Office. His re-sentencing must now be done by a jury because the U.S. Supreme Court 2002 decision in Ring v. Arizona ended the state's practice of judges imposing death sentences.

 

OUTLIER COUNTIES: Riverside County, "The Buckle of a New Death Belt"

Posted: October 3, 2016

Riverside County, California imposed more death sentences than any other county in the United States in 2015, accounting for more than half of the state's new death sentences and 16% of new death sentences imposed nationwide. Among other states, only the 9 death sentences imposed in Florida outstripped Riverside's total of 8. The 29 death sentences from 2010-2015 made it the nation's second most profilic death sentencing county during that period, behind only the country's most populous death penalty county, Los Angeles, which has five times as many homicides. While California imposed more death sentences than any other state during that period, Riverside stood out even among California counties, imposing death sentences at a rate that was 9 times greater per homicide than the rest of the state. A 2015 piece by Professor Robert J. Smith of the University of North Carolina at Chapel Hill called Riverside County, "the buckle of a new Death Belt," because it, along with four other southern California counties, had replaced the Deep South in overproducing death sentences. Those five counties, which also include Kern, Orange, Los Angeles, and San Bernadino, have received national attention for misconduct by prosecutors and other public officials. In 2011, a federal magistrate judge characterized the conduct of the Riverside County District Attorney's office as, “turn[ing] a blind eye to fundamental principles of justice,” in a murder case. As with many of the counties that produce disproportionately large numbers of death sentences, the county faces other serious criminal justice problems. The office has been the subject of an investigation into allegedly illegal wiretapping practices, after former DA Paul Zellerbach oversaw what The Desert Sun newspaper described as "an astronomical rise in wiretaps" that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number of wiretaps issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. The death sentences imposed in the county also exhibit significant racial disparities. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color. Defendants in Riverside County often receive inadequate defense because of a pay structure for court-appointed attorneys that financially penalizes plea bargains and robust investigation of mitigating evidence. In two-thirds of Riverside County cases that were reviewed on direct appeal between 2006 and 2015, defense counsel presented less than two days of mitigation. Among that same group of cases, 55% involved a defendant who was under 21 years old at the time of the offense or had an intellectual impairment, brain damage, or severe mental illness. 7 of the 8 defendants sent to death row in 2015 were represented by appointed private counsel. Only one was represented by the public defender's office. (Click image to enlarge.)

 

PEW POLL: Public Support for the Death Penalty Drops Below 50% for First Time in 45 Years

Posted: September 30, 2016

Public support for the death penalty fell by 7 percentage points in the last year, with fewer than half of Americans (49%) now saying they support the death penalty, according to a national Pew Research Center poll released on September 29. The poll marks the first time in 45 years that support for capital punishment polled below 50%, when a Gallup poll in released in November 1971 also reported that 49% of Americans supported the death penalty. Opposition to capital punishment reached a record high since the U.S. Supreme Court's 1972 decision in Furman v. Georgia striking down existing death penalty statutes. 42% of respondents told Pew that they oppose capital punishment, the most since a May 1966 Gallup poll reported 47% of Americans against the death penalty. The poll results reflect the continuation—and perhaps acceleration—of a 20-year trend of decreasing support for, and increasing opposition to, capital punishment. Support for the death penalty declined across every demographic group in the past year, with the largest decline coming among Independents (13 percentage points). Majorities of Blacks (63%), Hispanics (50%), 18-29 year-olds (51%), college graduates (51%), Democrats (58%), and people with no religious affiliation (50%) now oppose the death penalty and—while comprising less than a majority—more women, Independents, and Catholics say they oppose the death penalty than support it. While 72% of Republicans say they favor capital punishment, support for the death penalty among Republicans dropped 5 points in the past year. Since 2011, support for the death penalty has declined among every demographic group, with overall support falling by 13 points. The polls appear to be reflecting generational changes as well. 59% of those aged 18-29 said they supported the death penalty in 2011. In 2015, support among the young had fallen to 51%, and support plummeted another 9 percentage points to 42% this year. (Click image to enlarge.)

 

Orange County, California Crime Lab Accused of Doctoring Murder Testimony to Help Prosecutors

Posted: September 29, 2016

The Orange County, California Crime Lab has been accused of doctoring its testimony about DNA evidence to favor the prosecution, after a senior forensic analyst offered conflicting conclusions that bolstered the prosecution in two separate murder cases. A motion filed on September 23 by the Organge County Public Defender's office says prosecutor Kevin Haskins (now a judge) presented testimony from Senior Forensic Scientist Mary Hong in the 2008 capital murder prosecution of Lynn Dean Johnson claiming that the recovery of low quantities of semen from the victim's body meant that the DNA had been deposited "zero to 24 hours" before it was collected by police. The motion says Hong subsequently testified in the murder trial of Wendell Patrick Lemond in 2009, in response to questioning by deputy district attorney Howard Gundy, that low quantities of semen meant that intercourse had occurred at least 24 hours before collection. The testimony in Johnson's case was critical in persuading the jury that the victim—who had multiple partners in the weeks before her death—had sexual contact with Johnson near the time of the murder. In Lemond's case, however, the changed testimony persuaded jurors that an alternate suspect who had been identified as the source of the semen could not have had sex with the victim around the time of the murder. The murders occurred in 1985, but the trials took place two decades later after Hong reopened forensic probes into the cases. Hong's testimony in Johnson contradicted the conclusions reached by criminalist Daniel Gammie when he prepared the original reports in ther cases in 1985. At that time, Gammie indicated in both cases that the sperm had been deposited at least 24 hours before collection. At Johnson's trial, Gammie changed his stance to fit the prosecution's theory and testified that now he would "be very cautious making a statement" like the one in his 1985 report. Having recanted his 1985 conclusions in Johnson's case, prosecutors could not risk presenting him as a witness in Lemond's case. Instead, Gundy presented Hong, but did not tell the jury about her contradictory testimony in the Johnson trial. Sanders' court filing argued that Gammie and Hong's testimony had been tailored to “fit perfectly for the prosecution" in Johnson’s case and that Hong's testimony in Lemond's case was "wholly irreconcilable with the testimony in Johnson. ...She clearly had studied Gammie’s report and analysis and knew that Gammie’s testimony in Johnson and her own—in the hands of defense counsel—would have eviscerated her credibility in Lemond and all of the other cases she has touched throughout the course of her career." The revelation comes amid a widespread prosecutorial misconduct scandal in Orange County, in which a special committee recently cited a "failure of leadership" and "win-at-all-costs mentality" as factors that led to the misuse of jailhouse informants, withholding of evidence, and other misconduct. 

 

LAW REVIEW: "The Death Penalty and the Fifth Amendment"

Posted: September 28, 2016

Some proponents of the death penalty—including the late Justice Antonin Scalia and the 2016 Republican Party platform—have asserted that the Supreme Court cannot declare the death penalty unconstitutional because the Framers included reference to the punishment in the text of the Fifth Amendment. An article by Duke Law School Professor Joseph Blocher, published in the Northwestern University Law Review, critically analyzes that argument and concludes that the Fifth Amendment's acknowledgment of the death penalty as an acceptable practice in the 1700s does not foreclose judicial review of the constitutionality of the practice under the Eighth Amendment or any other constitutional amendment. This, Blocher says, is because the Fifth Amendment contains restrictions on the exercise of government power, rather than affirmatively granting the government any constitutional power. The Fifth Amendment, Blocher writes, "contains three prohibitions on the use of capital punishment." The Grand Jury Clause prohibits the government from bringing charges against a person "for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The Double Jeopardy Clause prohibits twice placing any person "in jeopardy of life or limb" for the same offense. The Due Process Clause prohibits depriving any person "of life, liberty, or property, without due process of law." No one would argue that the mention of deprivation of limb in the Double Jeopardy Clause constitutionally legitimizes amputation as a criminal punishment. And by imposing constitutional limits on government conduct in attempting to take a defendant's life, Blocher says "there is no reason to suppose that [the Fifth Amendment] somehow nullifies other constitutional prohibitions—most importantly, the ban on cruel and unusual punishment." He notes that the Ninth Amendment reinforces this reading, "The Ninth Amendment indicates that the entire Bill of Rights—let alone any particular provision of it—cannot be read as an exclusive list. ...Compliance with the Fifth Amendment does not provide the death penalty a safe harbor against constitutional challenges, including those derived from the Eighth Amendment." Blocher concludes that to the extent reasons may exist not to abolish the death penalty, "the Fifth Amendment is not one of them."

 

Missouri Execution Pharmacy Calls Sale of Drugs to State 'Political Speech,' Claims First Amendment Right to Secrecy

Posted: September 27, 2016

A pharmacy that has received more than $125,000 in cash payments from Missouri for providing lethal injection drugs that the state has used in 16 executions has argued in a court filing that its identity should remain secret, claiming that selling execution drugs to the state's Department of Corrections is political speech protected by the First Amendment. The supplier's information was requested in a subpoena by Mississippi death row inmates who are challenging that state's execution protocol, and seeking information about other state practices as part of their lawsuit. The pharmacy, which is identified in court documents as "M7," filed a motion stating that its "decision to provide lethal chemicals to the Department was based on M7’s political views on the death penalty, and not based on economic reasons. ...The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights." BuzzFeed News reports that Missouri paid the pharmacy $7,178.88 for two vials of pentobarbital per execution, which it describes as well above market value, amid concerns that the cash payments may have violated federal tax laws. Analyzing M7's claim, Bloomberg News columnist Noah Feldman described the pharmacy's constitutional argument as "deeply flawed." Feldman writes that "there’s an enormous difference between speaking and acting—particularly when that action is a for-profit commercial transaction with the government. ... [I]n a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency." M7 asserted in its filing that releasing its identity could subject the pharmacy to harassment and boycotts, relying on statements from a security consultant, Lawrence Cunningham, whose previous statements about the potential threats to execution drug suppliers have been exposed as unsupported or exaggerated. "The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business," Feldman writes. "Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them."

 

Death Row Exonerees Speak Out on State Death Penalty Ballot Questions

Posted: September 26, 2016

As voters get set to cast ballots on death penalty questions in California, Nebraska, and Oklahoma, U.S. death row exonerees from across the country have been scouring those states in an effort to inform the public of the risks of wrongful executions. On September 19, 17 of the nation's 156 death-row exonerees appeared at a California press conference advocating approval of Proposition 62, which would replace the death penalty with life without parole plus restitution, and defeat of Proposition 66, which seeks to place limits on the capital appeals process. Many, including California exoneree Shujaa Graham (pictured), Florida exoneree Juan Melendez, Arizona exonerees Ray Krone and Debra Milke, and Louisiana exoneree Damon Thibodeaux urged a no vote on Prop. 66, arguing that they would have been executed without the chance to prove their innocence if a measure like it had been effect when they were sentenced to death. A few days earlier, Illinois exoneree Randy Steidl and Ohio exoneree Kwame Ajamu spoke to the Oklahoma Republican Liberty Caucus, a group described by its chairman, Logan County Commissioner Marven Goodman, as "disenfranchised conservatives" who, as a result of their distrust of government regulation are questioning the death penalty. Steidl and Ajamu told the caucus about their wrongful capital convictions and raised concerns about the effects of limitations on judicial review under Oklahoma ballot question 776, which would bar Oklahoma courts from ruling that the imposition of the death penalty constituted cruel or unusual punishment or "contravene[d] any provision of the Oklahoma Constitution." Steidl, who was wrongfully convicted in Illinois in 1987 and exonerated in 2004, stressed the importance of appellate review in securing his exoneration: "Without the judicial review I finally got, I’d be dead today or at least be languishing in prison," he said. "I really believe that Oklahoma’s track record so far is not very pretty when you’ve got 10 people that’s been exonerated." And in Nebraska, Maryland's Kirk Bloodsworth, the first former death row prisoner to be exonerated by DNA, taped an ad on behalf of Retain A Just Nebraska, the advocacy committee opposing a voter referendum that could overturn the state legislature's repeal of Nebraska's death penalty. In the ad, Bloodsworth says: "You could free a man from prison, but you cannot free him from the grave. You can not un-execute someone. ... If it can happen to an honorably discharged marine with no criminal record or criminal history, it could happen to anybody in America.”

 

OUTLIER COUNTIES: Legacy of Racism Persists in Caddo Parish, Which Had Nation's Second-Highest Number of Lynchings

Posted: September 23, 2016

The death-sentencing rate per homicide in Caddo Parish, Louisiana was nearly 8 times greater between 2006 and 2015 than the rest of the state, making a parish with only 5% of Louisiana's population responsible for 38% of the death sentences imposed statewide. Caddo currently has more people on death row than any other parish in the state. Known as "Bloody Caddo," the parish had the second highest number of lynchings of any county in the nation. The Confederate flag flew in front of the steps to the courthouse until 2011 (pictured), where a monument to the Confederacy still stands. Inside that courthouse, 80% of defendants sentenced to death between 2010 and 2015 were Black, and no White person has ever been executed for killing a Black person in Caddo Parish. Caddo received national attention in 2015 when Acting District Attorney Dale Cox said he believed the state needed to "kill more people." Cox was personally responsible for one-third of the death sentences in Louisiana from 2010 to 2015. His controversial statements were in response to questions about the exoneration of Glenn Ford, a Black man convicted by an all-White jury, who spent 30 years on death row for a crime he did not commit. Ford's case illustrated many of the factors that have contributed to the overproduction of death sentences in Caddo Parish: racial bias in jury selection and the application of death sentences, inadequate representation, and official misconduct. A 2015 study by Reprieve Australia found that prosecutors used peremptory strikes against 46% of Black jurors, but only 15% of other jurors. One Black prospective juror was removed from a jury pool in 2009 for objecting to the presence of the Confederate flag in front of the courthouse. Like Ford, who was represented by two appointed attorneys who had never represented a criminal defendant at trial, most Caddo Parish defendants have not received adequate representation. In the last decade, 75% of people sentenced to death in Caddo Parish were represented by at least one lawyer who does not meet recently-imposed standards for capital attorneys. Official misconduct, like the false police testimony in Ford's trial, has also contributed to the high number of death sentences in Caddo. In 2014, Dale Cox wrote a memo regarding the capital trial of Rodricus Crawford in which he stated that Crawford, "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was convicted and sentenced to death for allegedly killing his infant son, despite medical evidence that the child actually died of pneumonia. Caddo prosecutors have a history of seeking death against the most vulnerable Black defendants: Lamondre Tucker and Laderrick Campbell were 18 years old at the time of their offenses and both had IQs in the intellectually disabled range; Corey Williams, who was 16 and removed from death row after being found to be intellectually disabled, is still serving a life sentence despite powerful evidence that his confession was coerced and that others committed the offense for which he was condemned. In November 2015, Caddo Parish elected its first Black District Attorney, James E. Stewart, Sr., who pledged, "to bring professionalism and ethics back to the district attorney’s office." 

 

Field Poll: California Death Penalty Repeal Leads Among Likely Voters as Majority Say They Prefer Life Without Parole

Posted: September 22, 2016

A poll of likely California voters conducted jointly by The Field Poll and the Institute of Governmental Studies at the University of California, Berkeley has found continuing erosion of support for the death penalty in the state and near-majority support for Proposition 62, a ballot question to replace the state's death penalty with a system of life imprisonment without parole, plus restitution. The poll found significant voter confusion about a rival ballot measure, Proposition 66, that claims to "reform" the state's death penalty by purportedly speeding up capital appeals. A plurality of voters said they are undecided about that ballot question. Although support for both propositions led opposition, neither commanded a majority. 48% of likely voters say they plan to vote yes on Prop. 62, with 37% planning to vote no and 15% undecided. 35% say they plan on voting yes on Prop. 66, with 23% currently opposing, but 42% undecided. (Click image to enlarge.) The poll presented likely voters with the summaries of each initiative that will appear on the November ballot. It found that support for repeal was strongest among Democrats (63%), liberals (71%), voters under 30 (55%), and voters with no religious preference (59%). Latinos were nearly evenly divided and constituted the only racial or ethnic group in which more voters said they opposed Prop. 62 (43%) than supported it (42%). Nearly one-third of African-American voters (32%) reported that they were undecided. A plurality of most demographic groups was undecided about Prop. 66, but support for the measure was highest among Republicans (42%), conservatives (45%), and Protestants (41%). The poll also asked voters whether they prefer the death penalty or life without parole for those convicted of first degree murder. A 10-percentage-point majority (55%-45%) said they prefer life without parole, continuing a trend of increased support for alternatives to the death penalty since the Field Poll first asked the question in 2009. At that time, a plurality (44%) prefered the death penalty. Support for Prop. 62 is polling 6 percentage points higher than it did for Proposition 34, the ballot initiative to repeal the death penalty that narrowly failed in 2012, at the same time in the election cycle. A Field Poll of likely voters in September 2012 showed 42% in favor of the repeal initiative, 45% opposed, and 13% undecided. Prop. 34 ultimately garnered 48% of the vote. The poll of 942 likely voters was conducted online by YouGov September 7-13, 2016 and released on September 22.

 

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