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40 Years After Key Supreme Court Decision, Constitutional and Practical Problems Plague Death PenaltyPosted: July 18, 2016
The execution of John Conner on July 15 ended a two-month period without executions in the United States, the longest such period in the country since 2007-2008. A range of state-specific issues have contributed to this stoppage, including questions about the constitutionality of state death penalty practices, problems relating to lethal injection drugs and state execution protocols, and the fallout from botched executions. In an article for The American Prospect, Professor Frank Baumgartner outlines research showing that the death penalty, as applied today, remains error-prone, racially biased, and arbitrarily applied. Forty years after the U.S. Supreme Court's decision in Gregg v. Georgia allowed executions to resume, Baumgartner argues, the death penalty continues to fall short of meeting the constitutional requirements set forth by the Court. Baumgartner highlights studies that have found that the approximately one percent of death-eligible homicides that have resulted in executions are not necessarily the worst crimes, but rather, the crimes that happened to occur in jurisdictions that are prone to using the death penalty or that involved a white victim. As Chris Geidner explains in BuzzFeed, only three states - Georgia, Missouri, and Texas - have carried out any executions since January because other states are grappling with legal challenges to their sentencing procedures and lethal injection protocols, inability to obtain lethal injection drugs, or sometimes a combination of several issues. Challenges to the constitutionality of death penalty practices in Florida, Alabama, and Delaware—where non-unanimous jury recommendations for death have accounted for more than 20% of the nation's death sentences—have brought executions to a halt in those states and statutes in Nebraska and Montana may also face constitutional challenges for the role judges play in imposing death sentences in those states. The fallout from botched executions have halted executions in Arizona, Ohio, and Oklahoma. And gubernatorial moratoria and a variety of lethal injection issues have also contributed to the drop in executions. Geidner calls the situation "unprecedented," and predicts that the number of executions in the second half of 2016 will be even lower than the 14 carried out in the first half.
A court hearing is under way in the capital trial of Donald Fell in a Vermont federal district court challenging the constitutionality of the federal death penalty. This week, death penalty experts testified for the defense about systemic problems Fell's lawyers say may render the federal death penalty unconstitutional. Fell was sentenced to death in 2006, but was granted a new trial because of juror misconduct. The hearing began on July 11 and is scheduled to continue until July 22. Judge Geoffrey W. Crawford, who is presiding over the hearing and is set to preside over Fell's second trial in 2017, said the hearing will, "create a rich, factual record for higher courts with broader authority to rule on the big questions." On Monday, Craig Haney, a psychology professor at the University of California Santa Cruz, discussed research on the effects of solitary confinement, the conditions under which Fell has been held on death row. "According to the National Commission on Correctional Health Care, anything greater than 15 days is inhumane, cruel and degrading treatment," Haney said. On Tuesday, Michael Radelet, a sociology professor at the University of Colorado, testified about the decline of the death penalty both in use and in public opinion, saying, "Attitudes toward the death penalty have changed more rapidly than any other social issue other than gay marriage." Radelet testified that research has disclosed no evidence that the death penalty deters murder or affects overall murder rates. He also emphasized the prevalence and causes of the 156 wrongful capital convictions as a major problem with capital punishment. “Last year six people were released, most having served 25 years. In 2014, seven were released from death row as innocent. One had been in for 30 years," he said. "The number one cause of error is prejudicial prosecutorial testimony. Prosecutorial misconduct, false confessions, fraudulent forensics.”
Georgia Prepares to Execute John Conner Despite Evidence of Intellectual Impairment, Traumatic UpbringingPosted: July 14, 2016
Georgia is continuing with preparations to execute John Conner (pictured) on July 14 after the state's Board of Pardons and Paroles denied his clemency petition and the Georgia Supreme Court denied him a stay of execution. In the clemency proceedings, Conner's attorneys presented evidence that he is intellectually disabled and that he was raised in poverty and extreme violence in a home filled with chronic drug and alcohol abuse and in which sexual and emotional abuse were the norm. Conner's lawyers wrote that, at a young age, he was "indoctrinated into a life that normalized drugs, alcohol, and violence, so much so that he drunkenly beat a friend to death in reaction to a lewd comment." They also said Conner's teachers had identified him as intellectually disabled. Conner's inexperienced trial attorney failed to present any evidence at trial or in the sentencing hearing and his appellate lawyer was not provided any resources to investigate his case. As a result, his lawyers said, neither the jury nor the state appellate courts heard any mitigating evidence of his intellectual impairments and horrifying upbringing, which they say might have changed the jury's sentencing decision. Though a federal court later ruled that his evidence of intellectual impairment did not reach the level of disability that would render him ineligible for execution, his lawyers argued that the court did not consider the mitigating aspects of his intellectual impairments or whether "Mr. Conner's poverty-, violence-, and trauma-filled family background ... should have justified a sentence less than death." On July 12, the Georgia Supreme Court declined to review Conner's claim that his execution more than 34 years after being sentenced to death constitutes cruel and unusual punishment and voted 5-2 to deny him a stay of execution. [UPDATE: Georgia executed Conner shortly after midnight on July 15. It was the sixth execution conducted by the state in 2016, more than in any previous calendar year since executions were allowed to resume in 1976.]
In a landmark ruling in McCleskey v. Kemp in 1987, a bitterly divided U.S. Supreme Court voted 5-4 vote that statistical evidence of racial discrimination in the application of the death penalty was insufficient to overturn an individual death sentence. A new book, Race and the Death Penalty: The Legacy of McCleskey v. Kemp, edited by David P. Keys, associate professor of criminal justice at New Mexico State University and R.J. Maratea of the Youth Research and Resource Center, Inc. explores the lasting effects of the McCleskey ruling. Race and the Death Penalty contains 12 chapters by death penalty experts, each discussing a different aspect of race in the post-McCleskey death penalty system, including research on the racial disparities in capital sentencing that persist today. In a review, Scott William Bowman, Assistant Professor of Criminal Justice at Texas State University, said the book "does a marvelous job of balancing the historical and contemporary narratives of how race and racism interact with the ongoing application of the death penalty.... Keys and Maratea have rejuvenated the dialogue."
NEW VOICES: Former FBI Agent Now Opposes Death Penalty, Seeks Exoneration of California Death Row Prisoner Kevin CooperPosted: July 12, 2016
During his 45 years in law enforcement, including 24 years with the Federal Bureau of Investigation, homicide investigator Tom Parker (pictured) changed his view on the death penalty. "There were times during my career when I would gladly have pushed the button on a murderer,” he said. “Today, my position would be, life without parole." Parker says that seeing corrupt homicide investigations convinced him that innocent people could be executed. As result, he now opposes capital punishment and is supporting California's Justice That Works Act, a ballot measure that would repeal the death penalty. Parker says the worst case of police misconduct he has seen in a capital case is that of California death row prisoner Kevin Cooper. Parker has re-investigated the case pro bono for five years in an effort to free Cooper. “I’m convinced he was framed. We arrest and convict innocent people almost every day in this country. As long as we have a death penalty in America, we will continue to execute innocent people.” Cooper was sentenced to death for four 1983 murders, and has completed his appeals, meaning that he could be executed if California resumes lethal injections. Parker says Cooper's conviction was a result of "police tunnel vision" - making the evidence fit the suspect, rather than seeking a suspect who fit the evidence. Working as a consultant with Cooper's attorneys, Parker has found witnesses who say they saw three white men, two of whom wore blood-spattered clothing, acting strangely at a bar near the crime scene on the night of the murders. The initial statement from the one survivor of the crime pointed to three white men as the perpetrators, but Cooper is black. Cooper recently received support from the American Bar Association in his efforts to receive clemency from Governor Jerry Brown.
A federal court jury has awarded six Nebraska exonerees (pictured, at their exoneration) $28 million in damages for official misconduct that led to their wrongful convictions in the 1985 rape and murder of Helen Wilson. The "Beatrice Six," as the group came to be known, were falsely accused of the killing and threatened with the death penalty. Five of the defendants—James Dean, Kathy Gonzalez, Debra Shelden, Ada JoAnn Taylor, and Tom Winslow—agreed to plea bargains or pled no contest to avoid possible death sentences. The sixth—Joseph E. White—demanded a jury trial, and was convicted. All six were exonerated by DNA evidence tested in 2008. On July 6, the jury found that the Gage County, Nebraska Sheriff's Office had been reckless in its investigation and had fabricated evidence. The $28 million damages award exceeds the entire annual budget of Gage County by $1 million, and the county does not have an insurance policy to cover court judgments resulting from law enforcement misconduct. At a press conference on July 8, Randall Rintour, the Gage County prosecutor who reopened the Beatrice Six case in 2008, said the case had changed his views on the death penalty. “It happened right here in our backyard. We can’t say it’s not possible to make a mistake because we did, we made a huge one," he said. "Our ability to execute all the ... murderers we can is not worth the death of one innocent individual at the hands of the state." State Sen. Burke Harr, a former Douglas County deputy prosecutor, joined Rintour in urging Nebraskans to retain the state's repeal of the death penalty, which is the subject of a November referendum. Sen. Harr, one of 30 legislators who voted in favor of repeal, said, "The death penalty is just that, it’s forever. There’s no coming back."
In a chapter from the recently released American Bar Association publication, The State of Criminal Justice 2016, Ronald J. Tabak, chair of the Death Penalty Committee of the ABA's Section of Individual Rights and Responsibilities, describes significant trends and recent cases related to capital punishment. Tabak highlights the ongoing declines in death sentences and executions across the United States, as well as the increasing concentration of the death penalty in a small number of jurisdictions. The chapter details the lethal injection controversies that have slowed executions in many states and halted them in others. It also includes sections on key Supreme Court cases, particularly Glossip v. Gross, and on innocence, emphasizing recent exonerations. Tabak concludes with a prediction: "As more and more people recognize that our capital punishment system is inconsistent with both conservative and liberal principles, and with common sense, the opportunity for its abolition throughout the United States will arrive."
Just days after a split Arkansas Supreme Court upheld the state's execution protocol, Arkansas' supply of vecuronium bromide—a paralytic agent used in the state's three-drug lethal injection protocol—expired, leaving the status of future executions unclear. At that time, Governor Asa Hutchinson said that he wanted the Department of Correction to obtain a new supply of the drug rather than change the state's method of execution. In 2015, the state spent $25,000 for lethal injection drugs and set eight execution dates. Death row prisoners challenged the state's execution protocol and secrecy law, which they say violated the settlement in a challenge to an earlier protocol. The new litigation, which raised critical questions about whether the new protocol might result in an unconstitutionally cruel and unusual execution, took nearly a year to resolve, ending just before the June 30 expiration date of the execution drugs. Because every major manufacturer of pharmaceuticals in the U.S. opposes the use of their products in executions, Governor Hutchinson said it is "unknown" whether Arkansas will be able to obtain a new supply of the drugs. He again expressed hesitation at the idea of changing the state's lethal injection protocol, saying, "You don't want to deviate from what's already been tested and approved[;] otherwise you're starting all over again." The Arkansas Department of Correction would not disclose what efforts it has made to obtain new execution drugs. The state last carried out an execution in 2005.
Decline in "Resource-Draining" Death Penalty Trials in Amarillo Texas Mirrors Trends in State, NationPosted: July 6, 2016
Forty years after Gregg v. Georgia ushered in the modern era of capital punishment in the United States, the death penalty is in decline across the country and in Texas. The Lone Star State continues to lead the nation in executions—with nearly half of all executions in the U.S. this year—but the Amarillo Globe-News reports that fewer Texas prosecutors are seeking death sentences and fewer juries are imposing them. According to the Globe-News, 26 people have been sentenced to death since 1976 in the Amarillo-area counties of Potter (17 death sentences) and Randall (9 death sentences). As of January 1, 2013, Potter County ranked 11th in the country in executions, but with its last execution in 2008, it has fallen to 16th, and no Amarillo-area prisoner is on death row for an offense committed after 2003. The two Potter County death row prisoners, John Balentine and Travis Runnels, are challenging their death sentences in federal court on the grounds that the lawyers the county appointed for them at trial and in state appellate proceedings provided ineffective representation, inadequately investigating and failing to present mitigating evidence that might have persuaded the jury to spare their lives. A third Amarillo-area prisoner, Brittany Holberg, has been on death row for 18 years, and Randall County criminal district attorney James Farren estimates her case has already cost taxpayers $2 million - $3 million. Farren believes the practical costs of the death penalty are contributing to prosecutors' decisions not to seek death in new cases. “The process has become so onerous, time-draining and resource-draining that the local prosecutors who choose to seek the death penalty in most cases are going to opt not to," he said. "It’s simply unfair to the taxpayers to bankrupt the county pursuing that result in a single case.” Farren also says that legislation creating a life without parole sentencing option has changed jurors' views: “It’s difficult to find 12 people who all agree that even though this person may die in prison to vote for the death penalty.” This reflects public opinion polls, which find that a majority of the public prefers life without parole to the death penalty. A recent poll by the Kinder Institute for Urban Research indicates that only 27% of Houstonians think the death penalty is a more appropriate punishment for murder than life without parole. Houston is in Harris County, Texas, which has executed more prisoners than any other county in the nation.
Arizona Lethal Injection Challenge Proceeds As State Refuses to Rule Out Future Use of Controversial Execution DrugPosted: July 5, 2016
A federal judge has rebuffed an attempt by Arizona to dismiss a lawsuit filed by the state's death row prisoners challenging the state's execution practices. The state argued at a hearing in the case in U.S. District Court on June 29, that the prisoners' lawsuit should be declared moot because Arizona's supply of midazolam—the first drug in one of the state's four execution protocols—had expired and that the state has been unable to obtain a new supply of that drug and other potential execution drugs from pharmaceutical manufacturers. However, defense lawyers argued that the state's announcement last week that it would drop midazolam from its execution protocol did not make the lawsuit moot because Arizona prison officials "could change their minds next week or next month.” And when pressed by Judge Neil Wake as to whether the Arizona Department of Corrections might use midazolam in the future if the drug became available, the state's lawyers said Arizona "will not commit to never using midazolam again.” The prisoners are also challenging Arizona's contention that the Corrections Director has unlimited discretion to make changes to the state's execution protocol. The prisoners argue that the state has abused that discretion to make last-minute changes in the execution protocol, preventing condemned prisoners from learning the details of the execution protocol until after a death warrant has been issued. This, in combination with secrecy provisions that conceal information about the source and quality of the drugs to be used in executions, has artificially limited the court's ability to address the legal challenges to Arizona's execution practices and resulted in what Judge Wake has characterized as "crisis litigation." In the past, Judge Wake had permitted executions to go forward in those circumstances—including the botched two-hour execution of Joseph Wood. However, he said that he would now consider staying future executions if necessary to ensure "prompt and orderly litigation." The state's executions remain on hold as the lawsuit continues.