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STUDIES: Louisiana Death Penalty Staggeringly Error-Prone, Racially Biased

Posted: April 28, 2016

More than 80% of the 241 death sentences imposed in Louisiana since 1976 have been reversed on appeal, and one death row prisoner has been exonerated for every three executions in the state, according to a new study by University of North Carolina-Chapel Hill Professor Frank Baumgartner and statistician Tim Lyman. The study, to be published in the Southern University Law Center’s Journal of Race, Gender and Poverty, also reveals dramatic racial disparities in both the trial and appellate stages of Louisiana death penalty proceedings. The study notes that 155 of the state's 241 death sentences have reached a final resolution: either a reversal or an execution. Of these death sentences, there have been 28 executions (18.1%) and 127 reversals (81.9%) — including 9 exonerations — giving Louisiana a reversal rate nine percentage points higher than the 72.7% average for death penalty cases nationwide. The researchers also found stark racial disparities in Louisiana's death penalty related both to the race of the victim and to the race of the defendant. Cases involving white victims were six times more likely to result in death sentences than cases involving black victims, and black male defendants charged with killing white female victims were 30 times more likely to be sentenced to death than were black male defendants charged with killing black male victims. The study also found that appellate courts were less likely to overturn death sentences in cases involving white victims than those involving black victims, compounding the racial disparities already present in the sentencing stage of the case. As a consequence, a defendant charged with killing a white victim was 14 times more likely to be executed than if the victim was black. The last time Louisiana carried out the death penalty against a white person for a crime involving a black person was in 1752, when the defendant was executed for damaging the property of another white man by stabbing two female slaves. The authors explained, "Race-of-victim effects are powerful at each stage of the death penalty system, accumulating as we move from the original sentence through to execution." Baumgartner said of his findings, “We have to look the death penalty in the eye and understand how it truly does function. Not how we wished it functioned but how it really does function. And every time we do that, it really is disturbing.” (Click image to enlarge, image by The New Orleans Advocate.)

 

Ruling Expected on Arizona Execution Hold, Amid Systemic Problems With Arbitrariness, Lethal Injection

Posted: April 27, 2016

Arizona's last execution, the botched lethal injection of Joseph Wood in July 2014, sparked controversy and legal challenges to the state's lethal injection procedure, and came at a time when Arizona was struggling not only with the logistics of carrying out executions, but also broader issues of fairness and costs. In a sweeping piece for The Arizona Republic, Michael Kiefer, who witnessed Wood's execution, describes the historical and legal background that led up to Arizona's current hold on executions.  He describes how Arizona's list of statutory aggravators — factors that make a case eligible for the death penalty — became so expansive that then-Governor Jan Brewer vetoed a proposed aggravator in 2014 because she worried it would make the death penalty law unconstitutionally broad and vague. Kiefer notes Arizona's 42% reversal rate in capital cases, meaning that 129 of the 306 death sentences in the state were reversed or remanded by higher courts. Nine people have been exonerated in Arizona, and one, Jeffrey Landrigan, was executed despite test results weeks before his execution that found DNA from two different men, but not Landrigan, on the victim's clothing. Landrigan was executed in 2010 using lethal injection drugs imported illegally from London. The U.S. Drug Enforcement Administration later seized the remaining drugs, causing Arizona to switch first to pentobarbital and later to midazolam, the first drug in Wood's botched execution. U.S. District Judge Neil Wake halted all executions in Arizona, asking the state to clearly specify what drugs it has and how it intends to carry out executions. His ruling is expected soon.

 

LAW REVIEW: North Carolina Lacks Constitutionally-Sufficient Proportionality Review

Posted: April 26, 2016

A law review article by Brooks Emanuel (pictured), a Law Fellow at the Equal Justice Initiative, argues that North Carolina's capital punishment statute violates the Eighth and Fourteenth Amendments to the U.S. Constitution because it lacks a meaningful appellate mechanism to prevent the arbitrary and discriminatory application of the death penalty. Citing extensive historical evidence, Emanuel argues that "racial discrimination in North Carolina death sentences was pervasive" in the years leading up to the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which declared existing death penalty statutes unconstitutional. After Furman, North Carolina adopted comparative proportionality review as its primary appellate protection against systemic arbitrariness and discrimination. However, Emanuel says, racially disproportionate capital sentencing continues to be endemic in the state. Examining the North Carolina Supreme Court's proportionality cases, Emanuel argues that the court has failed to provide meaningful proportionality review: "First, the court often does not appear to fulfill its mandate to consider 'similar cases,' instead relying too heavily on the very small group of cases in which death was previously found disproportionate. Second, the review’s lack of transparency is itself unconstitutional in its violation of defendants’ rights to due process." Emanuel argues that evidence from recent Racial Justice Act cases and from its fundamentally flawed proportionality review show that North Carolina has failed to prevent discriminatory sentencing and that systemic arbitrariness and racial disparity persist. Although the U.S. Supreme Court ruled in Pulley v. Harris that a state is not constitutionally compelled to provide comparative proportionality review so long as some mechanism exists for meaningful appellate review, Emanuel notes that North Carolina has selected proportionality review to perform that function and it has failed to do so. For those reasons, he concludes, North Carolina's death penalty is unconstitutional.

 

Missouri Execution Drug Supplier Being Sold After Committing Nearly 2,000 Violations of Pharmacy Regulations

Posted: April 25, 2016

The assets of The Apothecary Shoppe, a Tulsa, Oklahoma compounding pharmacy that provided lethal injection drugs to Missouri, have been auctioned off after the company defaulted on its loans, and is being sold after admitting to nearly two thousand violations of pharmacy regulations, according to a report by BuzzFeed News. Inspectors from the federal Food and Drug Administration and the Oklahoma Board of Pharmacy found that the drug compounder had committed "significant" violations of pharmacy regulations, including engaging in questionable potency, disinfecting, and sterilization practices. State investigators witnessed improper refrigeration, storage, and sterilization practices at the pharmacy and caught the company producing drugs without legitimate medical need, improperly expanding drug expiration dates, and operating during periods in which its lab was not certified. In 2013 and 2014, the pharmacy prepared execution drugs for at least three Missouri executions, receiving cash payments from the Department of Corrections. In challenges to Missouri's lethal injection practices, death-row prisoners – hampered by state execution secrecy provisions – argued in court that “Compounding-pharmacy products do not meet the requirements for identity, purity, potency, efficacy, and safety that pharmaceuticals produced under FDA regulation must meet.” Among the possibilities they listed, were that the drug may not be sterile, may be less potent than it needs to be, or may be contaminated. Missouri responded in its court filings that the condemned prisoners' concerns were speculative and that the inmates did "not make a plausible claim that Missouri’s execution procedure is sure or very likely to cause serious illness or needless suffering and give rise to sufficiently imminent dangers.” The problems found at The Apothecary Shoppe confirmed the prisoners' concerns. 

 

Supreme Court Asked to Review Texas' Use of Factors Based on a Fictional Character to Reject Death Row Prisoner's Intellectual Disability Claim

Posted: April 22, 2016

Bobby James Moore (pictured) faces execution in Texas after the state's Court of Criminal Appeals rejected his claim of intellectual disability in September 2015, saying he failed to meet Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test which a judge based on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." In doing so, the appeals court reversed a lower court's ruling that tracked the scientific diagnostic criteria set forth by medical professionals, which found that Moore had intellectual disability. On April 22, the U.S. Supreme Court will conference to decide whether to hear Moore's case. Moore's lawyers argue, supported by briefing from national and international mental health advocates, that he has intellectual disability and that the non-scientific standard employed by Texas in denying his intellectual disability claim violated the Court's 2014 ruling in Hall v. Florida. In 2002, the Supreme Court ruled in Atkins v. Virginia that the 8th Amendment prohibits the use of the death penalty against persons with mental retardation, now known as intellectual disability. But Atkins left it to the states to adopt procedures for determining whether defendants were intellectually disabled. Hall struck down Florida's strict IQ cutoff for determining intellectual disability because it "disregards established medical practice." Texas is the only state that uses the Briseño factors, which include whether the crime required forethought or planning, whether the person is capable of lying effectively, and whether the defendant is more of a leader or a follower. The state court disregarded Moore's clear history of intellectual disability, documented since childhood, and IQ scores ranging from the low 50s to the low 70s, in favor of Texas' idiosyncratic method.

 

High Trial Costs Put Death Penalty Under Scrutiny in Arizona, Colorado

Posted: April 20, 2016

The high cost of capital trials has put the death penalty under scrutiny in Arizona and Colorado. In Mohave County, Arizona, where two capital cases have already cost about $239,000 this fiscal year, County Supervisors have been told that the defense costs for trying these two cases and pursuing three other capital cases that are currently on appeal will be $380,000 this fiscal year, with comparable costs expected for next fiscal year. County Supervisors approved an expenditure of an additional $344,000 this year for the capital trials. County supervisors questioned County Attorney Matt Smith on the process for determining whether to seek the death penalty. Smith said his office considers the aggravating factors in the case, as well as the strength of the defense's mitigating factors. Though it is not required, Smith said he also considers the costs to the county before seeking the death penalty. Mohave County has seven defendants on death row, but only one defendant from the county has been executed. In Colorado, The Denver Post reports that the trial of James Holmes, which resulted in a sentence of life without parole, cost taxpayers more than $3 million, including nearly $1.6 million in federal monies. Holmes had offered to plead guilty if the prosecution dropped its quest for the death penalty. When it did not, the resulting trial was one of the longest in state history. Among the costs for the trial were two psychiatric evaluations ($600,000), victims' services and travel expenses to attend the trial ($1.2 million, paid out of a federal grant), and $500,000 in state funding for the District Attorney's office. The Post said the actual price tag for the Holmes case was even higher, because these totals do not include the salaries of state officials, including judges, prosecutors, and sheriffs, who spent large amounts of time on the case instead of other cases, but would have been paid regardless. If those salaries are included, the Post said, the cost of the case soars to more than $7 million. Public defender expenditures were also not included, because they are protected by attorney-client confidentiality.

 

NEW VOICES: Head of National Pharmacist's Group Opposes Lethal Injection Secrecy

Posted: April 20, 2016

Leonard Edloe (pictured), President of the American Pharmacists Association Foundation has urged Virginia lawmakers to reject Governor Terry McAuliffe's proposal to conceal the identity of the state's execution drug supplierssaying that the plan "undermines everything our profession stands for, and is actually against the law." In an op-ed in The Virginian-Pilot on the eve of a veto session in which the Virginia state legislature will consider the secrecy proposal, Edloe wrote: "Medicines are made to save lives, not end them. They’re not designed, or tested, to kill people." Edloe says "[k]eeping pharmacies out of the execution process is not just a point of principle. Federal law says drugs must be prescribed to a specific patient for a medicinal purpose. An execution clearly does not qualify." He describes the risks of compounding, pointing to the 2012 outbreak of fungal meningitis caused by badly compounded drugs, which killed 64 people. "In response, the federal government passed laws and regulations to increase the scrutiny of compounding pharmacies to protect the public," he said. "McAuliffe proposes the opposite approach — to give irresponsible compounders insulation from regulation — preventing the state taking action if a compounder supplied bad drugs that led to a botched execution." In 2015 the American Pharmacists Association issued a declaration opposing pharmacist involvement in capital punishment, and Edloe called such involvement "fundamentally contrary to the role of pharmacists as providers of healthcare." The current debate over secrecy, he says, "helps drive home the point that professional pharmacists have no place in the process." UPDATE: The Virginia legislature approved Gov. McAuliffe's amendments on April 20. 

 

Tennessee Legislature Unanimously Passes Bill to Require Preservation of Biological Evidence in Capital Cases

Posted: April 19, 2016

On April 13, the Tennessee House of Representatives joined the Tennessee Senate in unanimously approving a bill that would mandate the preservation of biological evidence in cases involving a death sentence. The House voted 94-0 in favor of the bill after the Senate had passed the bill on April 4 by a 31-0 vote. If the governor signs the bill, such evidence must be held until the defendant is executed, dies, or is released from prison. Destruction of evidence will be handled as criminal contempt. At the House hearing for the bill, Ray Krone (pictured), who was exonerated from Arizona's death row and now lives in Tennessee, testified to the importance of DNA evidence. Krone was exonerated after DNA from the victim's shirt was tested and was found to match neither the victim nor Krone. "That DNA not only saved my life.” Krone said. “It also, because it was preserved by the Phoenix Police Department, it identified the true murderer.” DNA testing also played a key role in the Tennessee death row exonerations of Paul House and Michael McCormick. A March 2007 Tennessee Death Penalty Assessment Report by the American Bar Association's Death Penalty Moratorium Implementation Project (now the ABA Death Penalty Due Process Review Project) had found that Tennessee death penalty law failed to comply with ABA recommendations on the collection, preservation, and testing of DNA and other evidence. The ABA Death Penalty Due Process Review Project has found that only 2 of the 14 states whose death penalty procedures it assessed complied with the ABA recommendations on preservation of biological evidence in death penalty cases.

 

California Death Row Prisoner With Innocence Claim Describes Preparations for His Near Execution

Posted: April 18, 2016

California death row prisoner Kevin Cooper (pictured), whose innocence claims recently spurred the American Bar Association to call for a reprieve, recently authored an article describing what is was like for him to experience nearly being executed on February 10, 2004. Cooper described the days leading up to his scheduled execution, which included round-the-clock monitoring, medical exams, and meetings with his attorneys. "My lawyers kept coming to see me and updating me on what the were doing to save my life, but I honestly did not believe they could stop the state from putting me to death," he said. The key prosecution witness against Cooper was the surviving son of the murdered couple, who was gravely injured during the attack. On the day of the murders, the 8-year-old boy said that three white or Hispanic men had committed the killings. After seeing photos of Cooper on television, he also told his grandmother and a sheriff's deputy that Cooper—who is black—was not the killer. Cooper recounts prison personnel forcibly applying a torniquet to his arms to determine the best veins for use in his execution, and taunts from guards that photos they were taking would be "the last images the world would see of me." One asked whether he wanted "a Tombstone pizza" as his last meal. On what was supposed to be his final day of life, Cooper met with visitors before being taken away to be strip-searched twice and placed in a cage to await execution. During the second search, which was conducted inside the death chamber, he was subjected to a full body-cavity examination, including a guard shining a flashlight inside Cooper's mouth and up his rectum. A clock was on the wall of the execution holding cell, and Cooper said, "I looked at that large wall clock, knowing that with each passing minute, my life was ticking away." The execution preparations continued even after a lower court granted Cooper a stay, because the state was appealing the stay to the U.S. Supreme Court. Less than four hours before the execution was scheduled to take place, the Court unanimously upheld the stay. After receiving a call from his lawyer about the Supreme Court vote, Cooper wrote, "I gave the phone back to the guard and told the executioners that they were not going to do their jobs that night."

 

Supreme Court to Consider Hearing Texas Capital Case Where Expert Said Defendant Posed Greater Danger Because He Was Black

Posted: April 15, 2016

UPDATE: The Supreme Court docket indicates that its conferencing of Mr. Buck's case, originally set for April 22, has been rescheduled. The Court is now scheduled to considering the case on April 29. PREVIOUSLY: On April 22, the U.S. Supreme Court is scheduled to confer on whether to review the case of Duane Buck (pictured), who was sentenced to death in Harris County, Texas after a psychologist testified that he posed an increased risk of future dangerousness because he is black. In the case, the defense presented psychologist, Walter Quijano, as its own witness, even though he had previously testified in other cases to a supposed link between race and future dangerousness. During cross-examination, the prosecution asked Quijano - without objection by the defense - whether "the race factor, black, increases the future dangerousness for various complicated reasons." Quijano replied, "yes." The prosecution then returned to this race-based testimony during its closing argument in calling for the jury to sentence Buck to death. Buck is one of six defendants who a Texas Attorney General's report identified as having unfair capital-sentencing hearings that were tainted by Quijano's race-based testimony, and the only one to be denied a new sentencing hearing. Courts initially rejected Buck's claim of prosecutorial misconduct for presenting race-based evidence and argument on the grounds that Buck's own lawyer had presented the witness. However, the lower courts then denied relief when he subsequently presented the argument that his lawyer had provided ineffective representation on this issue. The case has attracted widespread attention, and several stakeholders in Buck's case, including the second-chair prosecutor from Buck's trial, former Texas Governor Mark White, and a surviving victim have urged that Buck be granted a new sentencing hearing. Linda Geffin, the second-chair prosecutor, said "The state of Texas can't put Mr. Buck to the ultimate punishment without having a fair, just, color-blind sentencing hearing." A bipartisan group of amici have urged the Supreme Court to grant review of what they called the "noxious and deeply prejudicial use of race" in this case. American Bar Association President Paulette Brown recently wrote in the Houston Chronicle, "Obviously, an odious race-based argument is never acceptable, let alone in a criminal case where the defendant's life is at stake. And a defendant whose lawyer invites such racist testimony not only has a strong chance of being sentenced to death but a strong claim of ineffective counsel." 

 

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