A recent law review article reported wide variations among states in exempting defendants with intellectual disability from the death penalty. Professor John Blume (l.) of Cornell Law School, along with three co-authors, analyzed claims filed under the Supreme Court's decision in Atkins v. Virginia (2002) against executing defendants with intellectual disability (formerly, "mental retardation"). Overall, from 2002 through 2013, only about 7.7% (371) of death row inmates or capital defendants have raised claims of intellectual disability. The total "success" rate for such claims was 55%. In North Carolina, the success rate was 82%, and in Mississippi 57%. However, in Georgia (where Warren Hill was recently executed), the success rate for those claiming this disability was only 11%, and in Florida, the success rate was zero. The authors found that states that significantly deviated from accepted clinical methods for determining intellectual disability, such as Florida, Alabama, Georgia, and Texas, had the lowest success rates. To preserve equal protection under the law, the authors recommended the Supreme Court strike down aberrant practices in isolated states, just as it struck down Florida's strict IQ cutoff.
In light of the three botched executions that took place in 2014, the Washington Post published an editorial urging states not to drop "a veil of secrecy over executions." In particular, the editorial board opposes a proposed law in Virginia, which, "would make practically everything about executions in Virginia a state secret — even the building in which they take place. " "It’s hard to see the compelling need for that kind of blatant censorship, which in other states has been challenged by death row inmates, civil liberties groups and media outlets as an infringement on the First Amendment," the editorial said. "Depriving the public of information on the dark side of capital punishment, and impoverishing the public debate, will not make botched executions any more palatable." It calls such laws constitutionally suspect, adding, "The fact that such mishaps might arouse public disgust does not justify granting anonymity to drug companies that enter into government contracts. If it did, states might conclude that any unpleasant news, and the resulting inconvenient public reaction, would occasion suspending the First Amendment." Read the editorial below.
Seattle's Mayor Ed Murray, all 9 members of the Seattle City Council, and City Attorney Pete Holmes signed a letter in support of a bi-partisan bill to abolish the death penalty in Washington. Tim Burgess (l.), the President of the City Council, is a former police officer and detective. The joint letter said: “There is no credible evidence showing that the death penalty deters homicide or makes our communities safer. Instead, pursuing capital punishment diverts precious resources from critical public safety programs, delays final resolution for victims’ families and has serious implications for racial and social equity.” Among the reasons given for abolition were the high cost of death penalty trials and the lengthy appeals required in death penalty cases. The nine inmates on Washington's death row have spent an average of 17 years awaiting execution. King County, where Seattle is located, has already spent $15 million on two capital trials currently underway and a third that has not yet begun, the letter said.
According to a new study principally authored by Prof. Frank Baumgartner of the University of North Carolina, the death penalty is far more likely to be used if the underlying murder victim was white rather than black. The study examined every U.S. execution from 1976-2013 and found, "The single most reliable predictor of whether a defendant in the United States will be executed is the race of the victim....Capital punishment is very rarely used where the victim is a Black male, despite the fact that this is the category most likely to be the victim of homicide." Of the 534 white defendants executed for the murder of a single victim, only nine involved the murder of a black male victim. Although blacks make up about 47% of all murder victims, they make up only 17% of victims in cases resulting in an execution. The authors concluded, "In [the death penalty's] modern history as in its use in previous eras, racial bias in its application is consistently high. In addition to the threat to the equal protection of the law that these numbers suggest, such overwhelming evidence of differential treatment erodes public support for the judicial system."
In a discussion at the University of Florida Law School, former U.S. Supreme Court Justice John Paul Stevens said that recent research reveals that Texas almost certainly executed an innocent man in 1989. Stevens said, "Within the last year, Jim Liebman, who's a professor at the Columbia Law School and was a former law clerk of mine, has written a book...called The Wrong Carlos...He has demonstrated, I think, beyond a shadow of a doubt that there is a Texas case in which they executed the wrong defendant, and that the person they executed did not in fact commit the crime for which he was punished. And I think it's a sufficient argument against the death penalty...that society should not take the risk that that might happen again, because it's intolerable to think that our government, for really not very powerful reasons, runs the risk of executing innocent people." Prof. Liebman's research showed that Carlos DeLuna's case involved faulty eyewitness testimony and police failure to investigate an alternative suspect.
On January 23 the U.S. Supreme Court agreed to hear a challenge to Oklahoma's lethal injection procedures, particularly its use of midazolam that was used in three botched executions in 2014. Four Oklahoma inmates asked the Court to review the state's procedures, but one of them, Charles Warner, was executed before the Court agreed to take the case. It is likely the other three defendants will be granted stays. When Warner was executed, Justice Sotomayor along with three other Justices, dissented from the denial of a stay, saying, "I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol...." The case will be argued in April and likely decided by the end of June. The questions presented by the petitioners appear below. Florida uses the same drugs as Oklahoma.
UPDATE: (1/27). Ladd was denied a stay by the TX Ct. of Crim. Appeals. Robert Ladd is scheduled to be executed in Texas on January 29, despite having an IQ of 67, an indication of intellectial disability rendering him ineligible for execution. Howver, Texas courts rejected Ladd's previous appeal because the state has a unique way of evaluating intellectual disability. Courts in Texas often consider what is called the "Briseño factors," a set of criteria created by a judge that differs from the usual psychological determination of intellectual disabilty. In particular, Texas may allow an execution if the defendant exhibited forethought or advance planning in commiting the crime. Generally, intellecutal disability is determined independent of the facts surrounding the crime. Texas is the only state that considers such factors, despite the lack of scientific basis, in determining whether a defendant should be spared. Ladd's attorneys are challenging the use of these factors, saying they violate the Supreme Court's recent decision in Hall v. Florida, which held that Florida's unusual standards for establishing intellectual disability were outside the country's standards of decency.
According to a recent article in the New Yorker, it has been diffcult selecting a jury for the trial of Dzhokhar Tsarnaev, who is accused of the Boston Marathon bombing. Many of the 1,350 people who filled out a juror questionnaire have been eliminated from service based on their written answers. But even of those who remain, only a few have been found sufficiently impartial regarding Tsarnaev's guilt or innocence and on potential sentences, putting the selection process behind schedule. Eventually, 18 people - 12 jurors and 6 alternates - will be seated for the trial. Most of those questioned so far have said they believe Tsarnaev is guilty. The judge and lawyers must determine whether those people can set aside their opinions to fully consider the evidence presented at trial. One potential juror who was asked whether she could put aside her belief that the defendant is guilty, said, “I think it’s hard. Because if you have a belief in your head … it’s hard to set that aside. I can try to, but I can’t say that it wouldn’t influence my thinking. I don’t know that the brain works that way.” Because the death penalty is possible if Tsarnaev is found guilty, the jurors must also be willing to consider both capital punishment and life in prison. It is also difficult to arrive at an impartial jury because so many potential jurors have connections to the Boston Marathon or to people who were affected by the bombing.
On January 20 the U.S. Supreme Court (7-2) granted Missouri death row inmate Mark Christeson new attorneys to assist him in pursuing his federal appeal. Christeson's appointed attorneys missed a crucial filing deadline for his federal appeal, not even meeting with him until a month after the deadline. New attorneys offered to represent Christeson, arguing that his current attorneys had a conflict of interest, since advocating for him would mean admitting their own error. The District Court and Court of Appeals both denied the request for substitution of counsel, and Christeson's execution date was set for Oct. 29, 2014. The Supreme Court granted a stay, and, in deciding the case, wrote, "[Christeson's original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests." Fifteen former judges filed a brief in support of Christeson, saying, "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court."
EDITORIALS: St. Louis Post-Dispatch Voices Death Penalty Opposition Even in Murder of Fellow JournalistPosted: January 20, 2015
A recent editorial in the St. Louis Post-Dispatch reiterated its opposition to the death penalty, even as Missouri prepares to execute the man convicted of killing a former Post-Dispatch reporter. Marcellus Williams is scheduled to be executed on January 28 for the murder of Lisha Gayle (pictured), who left her job as a journalist three years before she was killed. The paper noted Gayle's likely opposition to the death penalty: "It would be surprising, in light of her other causes and passions, if Lisha herself was a death penalty supporter." It then catalogued its own reasons for opposing capital punishment: "It is expensive — each case costs about $1 million more to prosecute than a capital case where the death penalty is not sought, according to one study. It serves no deterrent purpose. It can’t help but be imposed arbitrarily and capriciously. Occasionally innocent people are put to death. Occasionally, executions are botched and inmates suffer cruel and unusual pain."