In an October 10 statement commemorating World Day Against the Death Penalty, United Nations Secretary-General Ban Ki-Moon (pictured) urged the global abolition of capital punishment and called the death penalty ineffective and counterproductive as an anti-terrorism tool. Saying that capital punishment not only "has no place in the 21st century," Secretary-General Ban also noted that executions of terror suspects have been counterproductive: "Experience has shown that putting terrorists to death serves as propaganda for their movements by creating perceived martyrs and making their macabre recruiting campaigns more effective." Ban said that, "[t]o be legitimate and effective, counter-terror measures, like all security operations, must be anchored in respect for human rights and the rule of law." In particular, he critiqued vague anti-terrorism laws that states have used as a pretext to target political dissidents: "Let us be clear: participation in peaceful protests and criticism of a government–whether in private, on the Internet, or in the media–are neither crimes nor terrorist acts. The threat or use of the death penalty in such cases is an egregious violation of human rights." At a conference in Geneva held in conjunction with the World Day Against the Death Penalty, UN human rights experts decried the swift and unfair trials and death verdicts often handed down in terrorism cases and emphasized the heightened need for rigorous legal safeguards in terrorism cases. "Executions carried out without adherence to the strictest guarantees of fair trial and due processes are unlawful and tantamount to an arbitrary execution,” three UN Special Rapporteurs said. “We have called on those governments once and again to halt such executions and to retrial the defendants in compliance with international standards."
Tennessee Death Row Prisoners Challenge Lethal Injection, Argue Protocol Would Break the Law to Carry Out ExecutionsPosted: October 7, 2016
Lawyers for 30 Tennessee death row prisoners argued before the state's supreme court on October 6 that Tennessee's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Tennessee, which has not carried out an execution since 2009, intends to use a one-drug protocol of pentobarbital that it says would be obtained from a compounding pharmacy. The prisoners argue that the Tennessee Department of Correction's lethal-injection protocol creates an unconstitutional risk of lingering death and requires physicians to illegally prescribe controlled substances. Their lawyers argue that states may not break their own laws or federal statutes to carry out executions and that physicians who prescribe pentobarbital for executions would be violating federal drug laws. Assistant Federal Public Defender Michael Passino said, "You cannot perform a lawful act in an unlawful manner. To the extent that TDOC is doing that, the protocol is unconstitutional." Justice Sharon G. Lee raised concerns about the possibility of botched executions like those that have occurred in other states, in which prisoners writhed and gasped during prolonged executions. Associate Solicitor General Jennifer Smith, arguing on behalf of the state of Tennessee, conceded that "there is no guarantee that an execution is not going to have a problem." Justice Lee asked Smith further, "So how do we know our execution would not be botched?" Smith responded, "We don't."
The U.S. Supreme Court heard oral argument on October 5 in Buck v. Davis, a Texas case in which Duane Buck was sentenced to death after his own lawyer presented expert testimony from a psychologist who called Buck more likely to commit acts of violence in the future because he is Black. While Cecilia Marshall, widow of Thurgood Marshall, and Buck's stepsister, Phyllis Taylor—a survivor of the shooting—observed from the audience, Buck's counsel told the Court that the jury had sentenced Buck to death penalty based upon "a false and pernicious group-based stereotype" that equated being Black with being dangerous. Each of the seven justices who spoke during the hearing sharply criticized trial counsel's conduct, with Justice Samuel Alito saying "what occurred at the penalty phase of this trial is indefensible." Six other defendants whose cases had been tainted by similarly biased testimony by the same psychologist have already received new sentencing hearings, but Buck has not. Texas argued that Buck's case is unique because his defense attorney, not prosecutors, invited the biased testimony. Buck's attorneys previously sought review of his case on the grounds that his lawyer was ineffective, but the U.S. Court of Appeals for the Fifth Circuit denied Buck a "Certificate of Appealability" (COA), which allows a defendant's claims to be heard on the merits by an appeals court. During argument, the Justices raised concerns about the disparate rates at which Circuit Courts grant COAs. The Fifth Circuit denies them in about 60% of cases, while the Eleventh and Fourth Circuits deny them in only 6% and 0% of cases, respectively, meaning that defendants in the Fifth Circuit receive less review of their claims than those in the Eleventh or Fourth. Justice Elena Kagan said, "[I would assume] you think this is such an extraordinary case, and that the 5th Circuit got this so wrong, that it’s the best proof that there is that the court is approaching the COA inquiry in the wrong way." Justice Stephen Breyer agreed, saying, "It seems to me it proves the arbitrariness of what’s going on." (Pictured: Buck's lead counsel, NAACP Legal Defense Fund Litigation Director Christina Swarns, being interviewed on the steps of the Court.)
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.
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.
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.)
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.)
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 Orange 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.
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 SecrecyPosted: 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."