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U.S. Supreme Court Reverses Arizona Death Sentence After Jury Not Told of Defendant's Ineligibility for ParolePosted: June 2, 2016
The U.S. Supreme Court has overturned a death sentence imposed on Shawn Patrick Lynch by an Arizona jury that had not been told he would have been ineligible for parole if jurors sentenced to him to life imprisonment. In a 6-2 decision on May 31, the Court agreed to review Lynch's case, vacated the judgment of the Arizona Supreme Court, and summarily reversed Lynch's death sentence. Under Arizona law, the only sentences the jury could impose in Lynch's case were life without possibility of parole or the death penalty. The prosecution in the case presented evidence and argument to the jury suggesting that Lynch would pose a future danger to society unless he were sentenced to death. At the same time, it filed a motion, which the trial judge granted, to prevent Lynch's lawyer from informing the jury that its life sentencing option carried no possibility of parole. The trial court also did not instruct the jury that Lynch would be ineligible for parole if sentenced to life. The Supreme Court held that this violated Lynch's right to due process, as set forth in its 1994 decision in Simmons v. South Carolina. Simmons ruled that a capital defendant is entitled to inform the jury of his parole ineligibility whenever his future dangerousness is at issue and the only sentencing alternatives available to the jury are death or life imprisonment without possibility of parole. This was Lynch's third penalty phase. In his first penalty trial, the jury was unable to reach a unanimous verdict and the court declared a penalty mistrial. Lynch was again sentenced to death at his second penalty trial, but that sentence was overturned because of misconduct by prosecutor Juan Martinez, who had misrepresented to the jury that the aggravating factor “excessively cruel, heinous or depraved” constituted three separate aggravating circumstances. In his latest resentencing trial in 2012, the Arizona Supreme Court found that Martinez had “disturbingly made a number of inappropriate comments” and had engaged in "some instances" of misconduct. However, it ruled that the “prosecutorial misconduct ... was not so pronounced or sustained as to require a new sentencing trial.” Lynch's case now returns to state court for a fourth sentencing trial.
As Legitimate Market for Execution Drugs Dries Up, States' Secret Execution Practices Become Increasingly QuestionablePosted: June 1, 2016
Pfizer's recent announcement that it was tightening controls against what it calls the misuse of its medicines in executions highlights an on-going struggle between states desperate for execution drugs and a medical community that believes its involvement in the lethal injection process violates its medical and corporate missions and the ethical standards of the pharmaceutical and health professions. As Pfizer and nearly two dozen other pharmaceutical companies have ended open market access to drugs potentially used in executions, states have responded by increasingly shrouding the execution process in secrecy. The states "are mainly concerned about losing their providers of lethal-injection drugs should the companies’ names become public," says Linc Caplan in a recent article in The New Yorker. Otherwise, "companies that do not want their products associated with executions will know that their drugs are being used." He reports that since the Supreme Court upheld Kentucky's execution protocol in 2008, 20 states have responded to drug shortages by abandoning protocols that had been substantially similar to Kentucky’s, making "unfettered substitutions" to their protocols in "desperate attempts to adhere to their execution schedules.” Caplan reports that States "have also been increasingly misleading in their efforts to obtain drugs for executions." He cites documents showing that one Ohio official urged state drug purchasers to identify themselves as from the Department of Mental Health and warned they should "not mention anything about corrections in the phone call or what we use the drug for." Louisiana similarly obtained execution drugs from a local hospital, which mistakenly assumed they were needed for medical use. Last week, an Oklahoma grand jury report described that state's secrecy practices as producing a "paranoia" that "clouded [prison officials'] judgment and caused administrators to blatantly violate their own policies." An article by Chris McDaniel in BuzzFeed after the release of that report documented that the same secrecy and lack of oversight criticized by the Oklahoma grand jury is common in other states, and has contributed to execution problems in Missouri, Georgia, and Ohio. Arizona and Missouri paid executioners in cash, and Missouri's mismanagement of that fund likely violated federal income tax law. Missouri's secrecy, McDaniels writes, also "allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices." Other states, like Texas and Arizona "have used the secrecy to purchase drugs illegally," he reports.
The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino.
In a 5-2 decision issued May 26, the Connecticut Supreme Court reaffirmed its August 2015 decision in State v. Santiago that the death penalty violates Connecticut's state constitution. Connecticut prospectively repealed the death penalty in 2012, leaving eleven men on death row. In Santiago, the court ruled that "capital punishment has become incompatible with contemporary standards of decency in Connecticut," and replaced the eleven remaining death sentences with life without parole. Prosecutors unsuccessfully asked the court to reconsider its 4-3 decision in Santiago, and then, after one of the members of the majority left the court, sought to overturn the decision in the next capital appeal to reach the court, State v. Peeler. However, the new Justice, Richard A. Robinson, and Chief Justice Chase T. Rogers, one of the Santiago dissenters, joined the other justices from the Santiago majority in applying Santiago to overturn Russell Peeler's death sentences and direct that he be sentenced to two terms of life without parole. In her concurring opinion, Chief Justice Rogers wrote, "I feel bound by the doctrine of stare decisis in this case for one simple reason—my respect for the rule of law. To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court’s integrity and the rule of law in the state of Connecticut." Justice Robinson expressed a similar sentiment in his concurring opinion: "In my view, stare decisis considerations of this court’s institutional legitimacy and stability are at their zenith in this particular case, given that the only thing that has changed since this court decided Santiago is the composition of this court." The three justices from the Santiago majority also responded to the prosecution's substantive attack on that decision. They wrote that "the persistent, long-term declines in capital punishment are just what they appear to be—evidence that contemporary standards of decency have evolved away from execution as a necessary and acceptable form of punishment" and that Connecticut's actual death penalty practices "constitute[ ] what has come to be seen as cruel and unusual."
The Nebraska Supreme Court heard oral argument on May 25 in a challenge to the proposed November referendum that could reverse the state legislature's 2015 repeal of the death penalty (vote results pictured left). Christy and Richard Hargesheimer, who oppose the death penalty, are challenging the documents submitted by Nebraskans for the Death Penalty, the organization supporting the referendum, on the grounds that the group violated state law when they failed to list Governor Pete Ricketts as a sponsor of the referendum. Nebraska state law requires proponents of a ballot initiative to disclose all of the sponsors of the proposed referendum. Ricketts vetoed the legislature's 2015 repeal of the death penalty, but the legislature voted 30-19 to override his veto. Ricketts then personally contributed $200,000 and, in combination, he and his father donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. Much of the argument Wednesday focused on the definition of who is a "sponsor" for the purposes of a referendum campaign. Alan Peterson, an attorney for the Hargesheimers, said the sponsor is the primary initiating force, "the initiator, the instigator." Attorneys for Nebraskans for the Death Penalty argued that the sponsor is someone willing to take legal responsibility for the petition paperwork and said Peterson's definition was "unworkable and would chill involvement in the democratic process." Peterson also argued that a key document required to place the referendum on the November ballot had been filed improperly because it was not an affidavit or sworn statement, as required by Nebraska law. A trial court ruled in February in favor of Nebraskans for the Death Penalty, leading to the Hargesheimer's appeal. [UPDATE: On July 8, 2016, the Nebraska Supreme Court that Governor Ricketts’ financial and other support for the petition drive did not make him a “sponsor” of the referendum, and therefore proponents' of the referendum did not have to disclose his involvement in the petition drive. The court rejected the Hargesheimers' efforts to remove the referendum from the ballot.]
Advocates Say California Ballot Initiative to Limit Death Penalty Appeals Risks Executing the InnocentPosted: May 25, 2016
As California prosecutors and law enforcement officials submitted signatures backing a ballot initiative intended to speed up the state's dysfunctional death penalty appeals process, a coalition of innocence advocates and wrongfully convicted exonerees warned that the proposal will substantially increase the risk that California will execute an innocent person. The initiative, sponsored by district attorneys with major funding by the state's prison guards’ union, would respond to appellate delays caused by the state's failure to timely meet its obligation of providing legal representation to hundreds of death row prisoners by mandating that lawyers who are deemed qualified to handle capital appeals must accept court appointments in these cases. The initiative also would impose time limits on appellate briefing and review of death penalty cases. The proposal would continue a legislative cap on the number of lawyers the Habeas Corpus Resource Center -- the state's institutional capital defender with the most experience in capital representation -- may hire and limit the types of assistance the center may provide to other lawyers appointed to handle these cases. Orange County District Attorney Tony Rackauckas, whose office has been been disqualified from prosecuting one capital case and is under fire for withholding information from defense lawyers and lying to courts about its use of prison informants, said the crimes for which defendants have been sentenced to death "are so horrendous there is no real punishment other than the death penalty that will bring justice in those cases.” He described the submission of the signatures as a “really good day for the victims of crimes across California.” But innocence advocates and exonerees disagree. Alex Simpson, Associate Director of the California Innocence Project, said “California’s legal process in death penalty cases exists for a reason: to make sure that innocent people aren’t executed. This measure guts these important protections by applying unrealistic and arbitrary timelines, greatly increasing the chance that we send an innocent person to the death chamber and allow a guilty person a free pass to victimize again.” Barry Scheck, Director of the national Innocence Project in New York, warned that "California would be making a grave and irreversible mistake by approving this initiative." And Randy Steidl, one of the nation's 156 death row exonerees and current Board President of Witness to Innocence, summed up the problems he sees with the initiative, saying "This initiative will lead to the execution of innocent people just like me.”
NEW VOICES: Former Chief Justice of North Carolina Supreme Court Questions Constitutionality of Death PenaltyPosted: May 24, 2016
I. Beverly Lake, Jr.—a staunch supporter of North Carolina's death penalty during his years as a State Senator and who, as a former Chief Justice of the North Carolina Supreme Court, repeatedly voted to uphold death sentences—has changed his stance on capital punishment. In a recent piece for The Huffington Post, Lake said he not only supported capital punishment as a State Senator, he "vigorously advocated" for it and "cast my vote at appropriate times to uphold that harsh and most final sentence" as Chief Justice. His views have evolved, he said, primarily because of concerns about wrongful convictions. "My faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes," he wrote. However, his concerns about the death penalty are broader than just the question of innocence. Lake says he also questions whether legal protections for people with diminished culpability as a result of intellectual disability, mental illness, or youth, are adequate. "For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime," he said. He describes the case of Lamondre Tucker, a Louisiana death row inmate who was 18 at the time of the offense and has an IQ of 74, placing him just outside the Supreme Court's bans on the execution of juveniles and people with intellectual diabilities. Lake argues, "Taken together, these factors indicate that he is most likely just as impaired as those individuals that the Court has determined it is unconstitutional to execute." He concludes, "Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot."
Supreme Court Rules Georgia Prosecutors Struck Death Penalty Jurors Because They Were Black, Grants New TrialPosted: May 23, 2016
On May 23, the U.S. Supreme Court overturned the conviction and death sentence of Timothy Foster (pictured) because Georgia prosecutors improperly exercised their discretionary jury strikes on the basis of race to exclude African American jurors. The vote was 7-1, with Justice Thomas the lone dissenter. Foster is now entitled to a new trial. Foster, who is black, was sentenced to death by an all-white jury after prosecutors used their peremptory challenges to remove every black prospective juror from the jury pool. Foster's trial lawyer challenged those strikes under the 1986 Supreme Court decision Batson v. Kentucky, which banned the practice of striking jurors on the basis of race, but the trial court credited the race-neutral reasons for the strikes that prosecutors offered at the time. Years later, Foster obtained the prosecutors' jury selection notes, which showed that prosecutors had highlighted the names of each of the black prospective jurors in green on four different copies of the jury list; circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; and ranked the black prospective jurors against one another in case “it comes down to having to pick one of the black jurors.” Foster filed another Batson claim in the state courts after having discovered these notes, but the Georgia Supreme Court rejected it, saying the issue had already been adjudicated. The U.S. Supreme Court said that the Georgia Supreme Court's decision was "clearly erroneous." "Foster established purposeful discrimination in the State’s strikes of two black prospective jurors," the Court said. "Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination." Among the reasons given by prosecutors for striking one black juror, Marilyn Garrett, included her age and the fact that she was divorced, but they allowed three out of four divorced white jurors to serve, and also allowed service by white jurors of similar age to Garrett. Stephen Bright, an attorney for Foster, said, "The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination. Jury strikes motivated by race cannot be tolerated. The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”
Following seven months of investigation into the causes of Oklahoma's botched execution of Charles Warner using an unauthorized execution drug and its near-execution of Richard Glossip with the same wrong drug, an Oklahoma grand jury issued a report on May 19 identifying a wide range of what it characterized as "negligent," "careless," and in some instances "reckless" conduct by state officials that deviated from the state's execution protocol. The state's three-drug execution protocol called for the use of potassium chloride as the final drug to stop the prisoner's heart, but instead the state obtained the unauthorized drug, potassium acetate. The grand jury described a litany of errors or improprieties at virtually every stage of the execution process by virtually everyone who participated in the process. It found that Robert Patton, who subsequently retired from his position as Director of the Department of Corrections had "orally modified the execution protocol without authority"; the anonymous pharmacist selected by the state had "ordered the wrong execution drugs"; the DoC's General Counsel "failed to inventory the execution drugs" upon recept from the pharmacist; the agent of the DoC's Office of Inspector General "failed to inspect the execution drugs while transporting them"; Warden Anita Trammell, who oversaw the prison where the executions occurred and also retired in the wake of the execution scandal,"failed to notify anyone in the [DoC] that [the wrong drug] had been received"; other prison administrators and members of the execution IV team "failed to observe the Department had received the wrong drugs"; and that the Governor's former General Counsel, Steve Mullins, "advocated the Department proceed with the Glossip execution using potassium acetate" even though he knew its use was not authorized by the execution protocol. Mullins insisted that the drug was interchangeable with potassium chloride, telling the assistant attorney general to "Google it." “It is unacceptable for the Governor’s General Counsel to so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip,” the grand jury wrote. “Given the gravity of the death penalty, as well as the national scrutiny following the [botched Clayton] Lockett execution, the Governor’s Counsel should have been unwilling to take such chances.” The grand jury also found that the judgment of prison officials throughout the process was "clouded" by the "paranoia" of keeping execution information secret, "caus[ing] administrators to blatantly violate their own policies."
Federal Court Ruling Permits Arizona Lethal Injection Challenge to Move Forward, Keeps Executions on HoldPosted: May 19, 2016
U.S. District Court Judge Neil Wake ruled on May 18 that a lethal injection challenge brought by Arizona death row prisoners may move forward, preventing Arizona from carrying out any executions before the reported expiration date of its supply of a key execution drug. Arizona has said that it is unable to replenish its supply of midazolam, an anti-anxiety medication that a number of states have used as a sedative in multi-drug lethal injection procedures. The death row prisoners are challenging the state's use of midazolam in conjunction with a paralytic drug, saying that "midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain." Judge Wake called the argument "plausible on its face," and said that it was not blocked by earlier U.S. Supreme Court rulings. Baze v. Rees had reviewed the constitutionality of a drug protocol that had employed an anesthetic that, unlike midazolam, "would render the inmate insensate to pain caused by the paralytic and the potassium chloride." Wake also said that the Supreme Court's decision in Glossip v. Gross—which involved midazolam but was decided at a preliminary stage of a challenge brought by Oklahoma death row prisoners, without a full evidentiary record—did not control the outcome of this case because the Arizona inmates "will present substantial new evidence challenging midazolam’s efficacy as a sedative." The judge also criticized the state's conduct in carrying out six separate executions, saying, "In recent history, the Department has deviated from its published execution procedures in ways ranging from minor to fundamental. It has deviated in the course of an execution without explanation." Judge Wake said that Arizona's "unlimited major deviations" from its execution protocol, and its claim that the state had unfettered discretion to deviate from its protocol at any time, "threaten serious pain." The ruling paves the way for further litigation on the prisoners' claims that Arizona's protocol violates the Eighth Amendment ban on cruel and unusual punishment. However, the court dismissed other claims brought by a coalition of media groups that the state's denial of information about the drugs violated the First Amendment. Previously, Arizona had used drugs believed to have been illegally brought into the country to execute Richard Landrigan. The FDA impounded a later shipment of drugs that it said Arizona had attempted to import from India in violation of federal law.