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As Council Reviews Kentucky's Criminal Justice Policies, Former Prosecutors, Judge Urge Repeal of Death Penalty

Posted: August 10, 2016

Kentucky's recently-formed Criminal Justice Policy Assessment Council will be examining the state's criminal code, and is expected to examine a wide range of criminal justice issues—including the death penalty—in the first major overhaul of Kentucky's criminal code since the 1970s. The council, which was formed by Gov. Matt Bevin, includes legislators, judges, criminal justice experts, and religious leaders, charged with producing a list of recommendations for Kentucky lawmakers. One council member, Bishop William Medley, of the Catholic Diocese of Owensboro, has expressed moral opposition to the death penalty, and received backing for repealing the punishment from some in the courts and the prosecution bar. Circuit Judge Jay Wethington, a former prosecutor who prosecuted death penalty cases told the Messenger-Inquirer that he was "going to side with ... Bishop Medley" on that issue, but for different reasons. "We need to get rid of the death penalty," he said. "We spend too much money for the results." Meanwhile, three former Kentucky prosecutors wrote an op-ed for Louisville's Courier-Journal urging abolition of the death penalty. Joseph Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider discussed the results of a recent University of Kentucky poll, which found that a large majority (72.4%) of Kentuckians support a moratorium on executions. They noted that support for the death penalty has risen since 2011, when the American Bar Association released a study that found serious problems with Kentucky's application of the death penalty. At that point, 62% of Kentuckians favored a suspension of executions. They conclude, "These poll results make it clear that Kentuckians’ concern about the fairness of the state’s criminal justice system is growing. As we have written before, replacing the death penalty with life without parole is the best approach for our state – protecting public safety, providing justice to the families of victims, removing the possibility that an innocent person will be executed and saving limited tax dollars."

 

Defense Lawyers, Former Prosecutors, and Constitutional Rights Groups File Amicus Briefs in Buck v. Davis

Posted: August 9, 2016

Five groups, representing defense lawyers, former prosecutors, and organizations devoted to protecting constitutional liberties have filed amicus briefs in the U.S. Supreme Court in support of Texas death row prisoner Duane Buck. Buck was sentenced to death when a psychiatrist presented by his own lawyer said he posed a greater potential danger to society because he is Black, and the case attained widespread notoriety after the new Texas attorney general failed to honor a commitment by his predecessor not to oppose a new sentencing hearing. On August 4, the National and Texas Associations of Criminal Defense Lawyers, a group of former prosecutors, the Lawyers' Committee for Civil Rights Under Law, and the Constitutional Accountability Center joined the National Black Law Students Association (NBLSA) in submitting briefs arguing that Buck's rights were violated by the racial arguments made at his trial. The NBLSA said, "Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice." The Lawyers Committee for Civil Rights Under Law stated, "Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf." The former state and federal prosecutors, who include former Texas Governor and Attorney General Mark White, former Attorneys General from Virginia, Tennessee, North Carolina, and Ohio, and the second-chair prosecutor from Buck's trial, highlighted Texas' refusal to provide Buck a new sentencing hearing, even though it had included him on a list of defendants whose trials were tainted by similar testimony by the same psychologist, and every other one of those defendants had received new sentencing hearings. "To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony," they said. The Court is scheduled to hear argument in Buck v. Davis on October 5. 

 

Poll: Majority of Oklahomans Support Replacing Death Penalty With Life Without Parole Plus Restitution

Posted: August 8, 2016

A new survey conducted by SoonerPoll has found that while three-quarters of likely Oklahoma voters say they support the death penalty in theory, a majority (53%) support abolishing capital punishment and replacing it with a sentence of life without parole, plus restitution to victims' families. Among every political affiliation, more supported the plan to replace the death penalty than favored keeping it, with a majority of Democrats (58%) and independents (57%) supporting abolition and a 48%-41% plurality of Republicans favoring replacing the death penalty. A similar poll from November 2015, shortly after the failed execution of Richard Glossip, found 52% support for replacing the death penalty with life without parole. The poll results reflect a pattern of softening support for capital punishment among voters in death penalty states. Recent polls in a number of such states show respondents expressing support for the death penalty generally, but favoring alternatives to capital punishment when offered a choice of punishments. A Florida poll earlier this year reported that 62% of respondents preferred some form of life in prison for those convicted of murder. In 2015, 54% of Pennsylvanians preferred life in prison. A recently-released Kentucky poll reported that 58% of respondents preferred lengthy prison terms over death sentences, with 72% supporting a moratorium on executions.

 

Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Posted: August 4, 2016

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan--rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart--from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.

 

Texas Prisoner Who Did Not Kill Anyone Challenges Execution, Use of False Psychiatrist Testimony to Condemn Him to Die

Posted: August 4, 2016

Lawyers for Jeffery Wood (pictured), a Texas death row prisoner who is scheduled to be executed August 24 despite undisputed evidence that he has never killed anyone, have filed a new petition in state court challenging his death sentence on multiple grounds. They argue that Wood cannot be subject to the death penalty because he neither killed nor intended for anyone to be killed and was not even aware the robbery in which a codefendant killed a store clerk was going to occur. They also challenge his death sentence on the gounds that it was obtained based upon false and scientifically baseless testimony from a discredited psychiatrist that Wood would pose a future danger to society. Wood was convicted of capital murder under the Texas doctrine called the "law of parties," which employs an usually broad interpretation of accomplice liability to make a defendant liable for the acts of others. He was sentenced to death for his alleged role in the murder of a store clerk in 1996 committed by another man, Daniel Reneau, while Wood was outside sitting in a truck. Reneau was executed in 2002. Wood says he and Reneau had planned to rob the store the previous day, but that he had backed out. According to Wood, he did not know Reneau still planned to rob the store, or that Reneau had a gun with him. Jared Tyler, one of Wood's attorneys, said, "I believe that no person in the history of the modern death penalty has been executed with as little culpability and participation in the taking of a life as Mr. Wood." Wood's appeal also alleges that his right to due process was violated when the state presented false and misleading testimony from psychiatrist James Grigson, who earned the nickname "Dr. Death" for testifying in numerous Texas capital cases that the defendant would "certainly" or "absolutely" or "with 100% certainty" commit future acts of violence, including several cases in which defendants later turned out to be innocent. Three years before Wood's hearing, Grigson was expelled from the Texas Society of Psychiatric Physicians and the American Psychiatric Association for ethical violations involving making psychiatric diagnoses without having examined capital defendants, predicting with certainty that they would engage in future violent acts, and basing those predictions on hypothetical questions posed by the prosecution that contained "grossly inadequate" information. Nonetheless, based on a prosecution hypothetical question and without having evaluated Wood, Grigson testified that Wood would "certainly" pose a continuing threat to society. Wood's jury was never told that Grigson had been expelled for similar conduct or that the professional associations had determined that his practices were unethical and unscientific.[UPDATE: On August 19, the Texas Court of Criminal Appeals granted a stay of execution to permit Wood to litigate his claims that the prosecution had presented false scientific evidence and that the use of false testimony from Dr. Grigson violated due process.]

 

Delaware Supreme Court Declares State's Death Penalty Unconstitutional

Posted: August 3, 2016

The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."

 

Policy Platform of The Movement for Black Lives Calls for "An End to Capital Punishment"

Posted: August 2, 2016

On August 1, The Movement for Black Lives issued a 40-point policy platform that includes a call for the abolition of capital punishment. The platform, which was written or endorsed by more than 60 activist groups including the Black Lives Matter Network, describes its purpose as "articulat[ing] our vision of a fundamentally different world." The portion of the platform seeking "an end to capital punishment" calls the death penalty "morally repugnant," and links it to the legacy of race-based lynchings against Blacks in the U.S. "The death penalty devalues Black lives," it states, going on to describe capital punishment as "geographically discriminatory," "expensive," and "randomly and arbitrarily sought by prosecutors." The document also raises concerns about the issue of innocence, noting that 156 people have been exonerated from death row, and capital punishment's connections to mental health and trauma, stating, "many people on death row have mental illnesses, cognitive limitations, severe trauma histories, and prior criminal records, often directly related to racial bias and poverty." Other recommendations related to criminal justice include demilitarization of police, an end to privatization of prisons, and an end to solitary confinement. The platform also contains sections addressing issues related to reparations, economic justice, political access, and investment in Black communities. “We recognize that not all of our collective needs and visions can be translated into policy, but we understand that policy change is one of many tactics necessary to move us towards the world we envision, a world where freedom and justice is the reality,” said M Adams, the co-executive director of Madison, Wisconsin-based Freedom, Inc. and one of the authors of the platform.

 

Nearly 3/4 of Kentuckians Support Moratorium on Executions, Majority Prefer Lengthy Prison Terms to Death Penalty

Posted: August 1, 2016

Nearly three-quarters of Kentuckians (72.4%) would support a moratorium on executions while problems in the administration of Kentucky's death penalty are addressed, according to a new poll released on August 1 by the University of Kentucky Survey Research Center. Nearly two-thirds (62.6%) of those who said they support the death penalty were nevertheless in favor of a moratorium. The poll also found that 57.8% of respondents preferred a lengthy prison term (options ranged from 20-50 years to life without parole) over the death penalty for people convicted of first-degree murder. Respondents also were asked their views about specific concerns related to the death penalty. 68% said they would support replacing the death penalty with life without parole if administration of the death penalty and its constitutionally-mandated appeals were found to cost substantially more than life in prison. 71.6% of all respondents—including 61.4% of death penalty supporters—agreed that capital punishment risks executing an innocent person. Finally, when asked to consider the impact of lengthy appeals on victims' families, 64% of Kentuckians supported replacing the death penalty with life without parole. Kentucky Public Advocate Ed Monahan said, "Clearly, Kentuckians remain uncomfortable with death as a sentence. Their discomfort is well founded. Our system of administering capital punishment is broken, costly and produces little value. Full reform must take place now." Gennaro Vito, a criminal justice professor at the University of Louisville, told the Kentucky News Service: "You may have to question, given the problems we've had with the administration of the death penalty in this state, why we would continue to use it, when so many Kentuckians are in favor of the sentence of life without parole in place of the death penalty." The last execution in Kentucky was carried out in 2008. (Click image to enlarge.)

 

Report: Proposal Billed as Speeding Up California Executions Would Actually Be Costly, Time-Consuming

Posted: July 29, 2016

An initiative on the California ballot this November billed by its supporters as a reform alternative to abolishing the state's death penalty will cost the state tens of millions of dollars to implement, according to an analysis by the Alarcón Advocacy Center at Loyola Law School, and "will not speed up executions." The report, California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives, predicts that Proposition 66 (The Death Penalty Reform and Savings Act of 2016), would "cost millions more than the [state's] already expensive death penalty system" and "will only make matters worse by creating more delays and further clogging the state’s over-burdened court system," adding "layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided." The report states that provisions in Prop 66 to exempt lethal injection protocols from public oversight "will certainly be subject to litigation ... on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases." The report criticizes Prop 66 as "fail[ing] to make the constitutional changes required to deliver the results it promises" and concludes that "its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system." The report contrasts Prop 66 with an opposing ballot initiative, Proposition 62 (The Justice That Works Act of 2016), which would abolish the death penalty in favor of life without parole. According to the state Legislative Analyst, Prop 66 will cost "tens of millions of dollars per year," while Prop 62 would save California taxpayers $150 million per year. The authors of the Loyola report, Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, a board member of California Attorneys for Criminal Justice, summarize the issues before the voters as follows: "The proponents of both Prop 62 and Prop 66 agree that California’s death penalty system is dysfunctional, exorbitantly expensive, and failing to achieve its purpose. Prop 62 responds to this failed system by replacing it entirely, adapting the existing regime of life imprisonment without parole to cover all persons who are convicted of murder with special circumstances. Prop 66 responds to this failure with a sweeping array of convoluted proposed 'fixes.' Our detailed analysis reveals that most of these changes will actually make the death penalty system worse, and will result in its problems negatively impacting the rest of the legal system in California."

 

Colorado Law to Speed Up Death Penalty Appeals Has Faltered and Failed

Posted: July 28, 2016

Twenty years ago, frustrated by what they perceived to be the slow pace of capital punishment, Colorado legislators adopted a law to "fix" their death penalty by speeding up appeals. Proponents and opponents of the state's death penalty agree on one thing: the law hasn't worked. As The Denver Post reports, the state law intended to streamline the death penalty appeals process by imposing a two-year deadline for decision and consolidating direct appeals and post-conviction appeals into a "unitary" system of review has failed. Colorado's two death row prisoners affected by the law have spent more than seven years at the first step in the appeals process, with no ruling on their cases in sight. The 1997 law changed the order of death penalty appeals, putting the lengthier post-conviction appeal (involving new evidence and claims of ineffective representation or prosecutorial misconduct) first, before the direct appeal (which involves only issues that were raised by defense counsel at the time of trial). Once the trial court rules on the post-conviction appeal, the Colorado Supreme Court would review and resolve both appeals together, in a single "unitary" appeal proceeding. But while the law originally allowed "no extensions of time of any kind" in post-conviction appeals, a 2010 Colorado Supreme Court ruling allowed extensions to be granted under "extraordinary circumstances" necessary to protect a defendant's procedural rights. Death row inmates Robert Ray and Sir Mario Owens both received extensions. Seven years later, Owens' case has had an extensive evidentiary hearing, but the appeal may have to be redone because the state supreme court fired the judge presiding over the case just before he was expected to issue his ruling. Ray's post-conviction hearings have not yet begun. Christopher Decker, a Denver defense attorney, voiced concerns about whether a fast appeals system would adequately protect defendants' constitutional rights: “If they just speed up the process and strip everyone of due process, we’ll have a very fast outcome that will be worth nothing. It won’t stand up to constitutional review.” Jeanne Adkins, the former state representative who sponsored the 1997 bill to speed up appeals, said, "I’m almost to the point where I would say, ‘Let’s do away with it and save the taxpayers the money.'" Expressing frustration with the death penalty system, she says “[t]he death penalty has become so politicized, truthfully, in the last decade or so in Colorado that I really think that a lot of what the legislature tried to do may actually be pretty pointless now.” 

 

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