DPIC News

Arkansas Court Puts Lethal Injection Ruling on Hold, Blocking Executions Pending U.S. Supreme Court Review

On July 21, a divided Arkansas Supreme Court voted 4-3 to deny a request by state death row prisoners to reconsider its recent decision upholding Arkansas' lethal injection protocol and secrecy law, but in another 4-3 vote, the court issued an order staying the mandate, delaying the decision from taking effect until the U.S. Supreme Court has an opportunity to consider an appeal. The stay order prevents the state from setting new execution dates before the U.S. Supreme Court acts on the prisoners' appeal. The same three Arkansas justices who dissented from the court's initial lethal injection decision in June would have granted the rehearing requested by the death row prisoners. However, Arkansas Chief Justice Howard Brill joined the three dissenting justices in staying the ruling pending action by the U.S. Supreme Court on the lethal injection decision. Eight inmates have completed their standard appeals, and Governor Asa Hutchinson had indicated that he intended to set execution dates for those inmates as soon as possible. Executions were previously in doubt because the state's supply of the drug midazolam, used as a sedative in the state's three-drug execution protocol, had expired. But Arkansas recently announced that it was able to obtain a new supply of midazolam from an unnamed source. The state's supply of potassium chloride, the drug used in executions to stop the prisoner's heart, expires on January 1, 2017. Because of the timeline for petitioning the U.S. Supreme Court, it is unlikely that Arkansas will be able to resume executions before its supply of that drug expires.   

EDITORIAL: San Jose Mercury News Endorses Death Penalty Repeal, Says Competing Measure Would Magnify Inequity

Weighing in on California's competing death penalty ballot initiatives, the San Jose Mercury News editorial board urged voters to support repeal of capital punishment and reject a proposal to speed up executions. The editorial called California's death penalty system, "a failure on every level," noting that the state has spent $4 billion to carry out just 13 executions and the $150 million annual savings the independent Legislative Analysts Office says death penalty abolition would achieve could be better spent "on education, on rehabilitating young offenders or on catching more murderers, rapists and other violent criminals." The editorial also addresses the misperception that the death penalty deters crime: "District attorneys throughout the state argue that the death penalty is a tool to condemn society's most vicious criminals. But this claim flies in the face of actual evidence: For every year between 2008-2013, the average homicide rate of states without the death penalty was significantly lower than those with capital punishment." After describing the racially- and geographically-biased application of the death penalty in California, the editorial argues that Proposition 66, which proposes to speed up executions, "would actually magnify the inequity and sometimes outright injustice in the death penalty's application" by reducing the opportunities to catch mistakes. "In the United States, for every 10 prisoners who have been executed since the death penalty was reinstated in 1976, one person on death row has been set free." Speeding up executions, the editorial says, "is the opposite of what nations concerned with actual justice would do."

40 Years After Key Supreme Court Decision, Constitutional and Practical Problems Plague Death Penalty

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.

Court Hearing Under Way on Constitutionality of Federal Death Penalty

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 Upbringing

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.]

BOOKS: "Race and the Death Penalty: The Legacy of McCleskey v. Kemp"

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."

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NEW VOICES: Former FBI Agent Now Opposes Death Penalty, Seeks Exoneration of California Death Row Prisoner Kevin Cooper

After 45 years in law enforcement, including as a homicide investigator for the Federal Bureau of Investigation, Tom Parker (pictured) has 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 a pardon from Governor Jerry Brown.

Nebraska Exonerees Awarded $28 Million, Prosecutor Says Case Made Him Oppose Death Penalty

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."

ABA Criminal Justice Report Covers Key Death Penalty Trends

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."

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Status of Arkansas Death Penalty Uncertain Following Expiration of Lethal Injection Drugs

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.  

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