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DPIC Analysis: States Scheduled Ten Executions for October 2019 — Why Nine Did Not Happen

Posted: November 1, 2019

Ten executions were scheduled to take place in October 2019, more than in any other month in the last two years. As the month closed, however, nine of those executions were not carried out. The 90% rate of warrant failures symbolizes the death penalty’s continuing decline and the widespread problems states are having with its implementation. And with eight active execution dates pending and two other stays of execution in place in November and December, 2019 is nearly certain to become the fifth consecutive year of fewer than 30 executions in the United States.

A DPIC review of the October death warrants found that four death-row prisoners received stays of execution, two warrants were withdrawn because of case developments, 1 warrant was halted by reprieve, and there was 1 execution. Two prisoners died on death row, making their warrants moot.

As of November 1, 2019, 11 states and the federal government had issued death warrants scheduling a total of 63 execution dates. Seventeen of those warrants have resulted in executions, while 19 executions have been stayed by the courts, 13 others halted by reprieve, 3 executions rendered moot when the prisoners died of other causes on death row, and 3 execution dates were withdrawn. In 2018, 37 of the 62 execution dates scheduled were not carried out, or nearly 60% of death warrants. In 2017, 60 of the 83 scheduled execution dates were halted (72.3%).

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Georgia Supreme Court, Ohio Governor Provisionally Halt Three Executions

Posted: October 31, 2019

Three U.S. executions were halted on October 30, 2019, as the Georgia Supreme Court issued a day-of-execution stay to Ray Jefferson Cromartie and Ohio Gov. Mike DeWine (pictured) granted warrants of reprieve to the next two death-row prisoners scheduled for execution in Ohio. The actions capped a tumultuous October in which nine of ten scheduled executions did not take place and federal courts stayed two other executions set for later in the year.

Shortly after noon on October 30, the Georgia Supreme Court provisionally called off Cromartie’s execution to consider improprieties in the issuance of the death warrant. The court’s stay order said that “it appears that the pending execution order may be void” because it was issued by the trial court at a time in which Cromartie’s appeal of an another order denying him DNA testing was pending before the state’s high court and the trial court lacked jurisdiction to take any action in the case. The Atlanta Journal-Constitution reported that the Georgia Attorney General’s office has conceded that the death warrant was void and that it would “immediately” seek a new execution date. Cromartie’s counsel, assistant federal defender Shawn Nolan, issued a statement that, while the court stayed Cromartie’s execution “on a jurisdictional question, we remain hopeful that the courts will ensure that DNA testing is completed in [his] case before an execution is carried out.” Nolan said that DNA testing could prove Cromartie’s innocence of capital murder and noted that “[t]he victim’s daughter has repeatedly asked Georgia state officials to conduct the DNA testing before proceeding with an execution.” The public, he said, “has a strong interest in allowing DNA testing because the execution of an innocent person would be the gravest miscarriage of justice.”

Later in the day, Gov. DeWine issued execution reprieves to James Hanna and Kareem Jackson, the next two prisoners scheduled for execution in Ohio. DeWine halted Hanna’s scheduled December 11, 2019 execution, setting a new execution date of July 16, 2020. His warrant of reprieve for Jackson postponed his scheduled January 16, 2020 to September 16, 2020. The postponements mean that none of the death warrants scheduling 18 execution dates in Ohio in 2019 will be carried out.

DeWine’s action was expected, as a result of the state’s ongoing difficulty in obtaining suitable lethal-injection drugs. On Friday, October 25, DeWine told reporters that it was “highly unlikely” the state would execute Hanna on December 11. At that time, DeWine restated his concern that Ohio cannot obtain drugs to carry out executions without putting public health at risk, saying that the possibility that pharmaceutical manufacturers would stop selling medicines to any state agency if they suspect Ohio would divert drugs intended for therapeutic purposes to use in executions had placed the state “in a very difficult situation.”

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Victims’ Family Members Ask for Clemency for Federal Death-Row Prisoner Daniel Lee

Posted: October 30, 2019

When Attorney General William Barr announced in July 2019 that the federal government planned to execute five prisoners in a five-week span from December 9, 2019 to January 15, 2020, he declared that “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.” In at least two of those cases, however, the victims’ families and community have said they don’t want the death penalty carried out.

In a six-minute video, Earlene Branch Peterson (pictured, holding a photo of her daughter, Nancy Mueller) has asked President Donald Trump to grant clemency for Daniel Lewis Lee, who is scheduled to die on December 9 for the murders of Peterson’s daughter, son-in-law, and granddaughter. She is joined in her plea by a surviving daughter, Kimma Gurel, and granddaughter, Monica Veillette, as well as the U.S. attorney who investigated and prosecuted the murders and the trial judge who presided over the case.

Lee and co-defendant Chevie Kehoe were convicted in 1999 of killing Nancy Mueller, her husband William Mueller, and her 8-year-old daughter Sarah Powell. Mueller’s family, the prosecutor, and the judge all believe that executing Lee, who is scheduled to be the first federal prisoner put to death in 16 years, would be a miscarriage of justice given the life sentence imposed on his much more culpable co-defendant. Judge G. Thomas Eisele described Kehoe as the “ringleader” and trial testimony showed that Kehoe killed Sarah Powell after Lee refused, saying he would not kill a child.

In asking President Trump to commute Lee’s death sentence to life without parole, Peterson says, “Yes, Daniel Lee damaged my life, but I can’t believe taking his life is going to change any of that. I can’t see how executing Daniel Lee will honor my daughter in any way. In fact, it’s kind of like it dirties her name, because she wouldn’t want it and I don’t want it. That’s not the way it should be. That’s not the God I serve.” Peterson, who voted for President Trump and said she would do so again in 2020, believes “[i]f I could talk personally to President Trump, I feel he could feel my heart and know that I don’t want this to happen, that Daniel Lee doesn’t need this any more than Chevie Kehoe does. I believe that he should give Daniel Lee clemency for what he did.”

“The government ain’t doing this for me,” she says, “because I would say no.”

On October 4, a federal appeals court granted a stay of execution to Lezmond Mitchell, the second of the five federal prisoners on the Department of Justice’s execution schedule. Before Mitchell’s trial, Navajo Nation officials wrote a letter to the federal prosecutor opposing the death penalty for Mitchell, who is Navajo, saying that the “the taking of human life for vengeance” is counter to Navajo culture and religion. Family members also opposed the prosecution seeking the death penalty in that case.

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More Than 250 Conservative Leaders Join Call to End Death Penalty

Posted: October 29, 2019

More than 250 conservative leaders from across the country have signed on to a statement expressing their opposition to capital punishment as administered across the United States and issued a “call [to] our fellow conservatives to reexamine the death penalty and demonstrate the leadership needed to end this failed policy.” Conservatives Concerned About the Death Penalty (CCATDP) released the statement in conjunction with an October 28, 2019 nationally webcast press conference that highlighted on-going efforts by conservative advocates in Ohio, Utah, and Wyoming to abolish the death penalty in those states.

The signatories to the statement include current and former state legislators, local-, county-, and state-level officers of Republican and Libertarian organizations, law enforcement officials, and other elected officials and candidates. Among the nationally-recognized figures on the list are Richard Viguerie, Republican former Governor of Illinois George Ryan, and former U.S. Representative and presidential candidate Ron Paul. The statement begins, “We have come to the conclusion that the death penalty does not work and can’t be made to work, not in spite of our conservative principles, but because of them.” It sets forth a series of reasons why conservatives have increasingly turned against capital punishment, calling it “a costly and ineffective government program” that “makes too many mistakes” and “has no place in a culture seeking to promote life.”

The statement was intended, in part, as response by conservatives to the announcement by the U.S. federal government in July that it will resume executions this December after a 16-year hiatus.

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Georgia Prisoner Says He is Not the Shooter, Seeks Stay of Execution to Permit DNA Testing

Posted: October 28, 2019

Supported by the murder victim’s daughter, a Georgia death-row prisoner who is scheduled for execution October 30, 2019 is asking the federal courts to grant him a stay to permit DNA testing that, he says, will prove that he did not commit the killing for which he is on death row. Ray Cromartie (pictured) admits his involvement in the robbery in which Richard Slysz was murdered, but maintains that his co-defendant shot the victim.

Cromartie has filed petitions in the Georgia state and federal courts seeking DNA testing of shell casings, clothing, and a cigarette pack from the crime scene. Slysz’s daughter, Elizabeth Legette, wrote a letter to the Georgia Supreme Court urging that court to permit DNA testing. “My father’s death was senseless. Executing another man would also be senseless, especially if he may not have shot my father. ... Today I learned that the State has set a date to execute Mr. Cromartie without doing any testing. This is wrong, and I hope that you will take action to make sure that the testing happens.”

On October 25, the Georgia Supreme Court denied his requests. Assistant federal defender Shawn Nolan, who is representing Cromartie in federal court, said evidence that Cromartie was not the shooter would have dramatically altered the jury’s understanding of the murder and Cromartie’s culpability for the killing. "With the clock ticking, there is still time to prevent an unjust execution if the courts recognize Ray Cromartie's civil right to get the DNA evidence tested before his scheduled execution on October 30^th,” Nolan said in a statement. Cromartie’s federal court complaint challenges the constitutionality of Georgia’s law on post-conviction DNA testing and its application by Georgia courts. It describes the advances in DNA science that would make testing today more fruitful than testing at the time of Cromartie’s trial.

As Cromartie’s execution date approached, his lawyers took the unusual step of deciding not to file a clemency petition. “Filing a clemency petition would have required Mr. Cromartie to ask for a sentence of life in prison without the possibility of parole, but there is simply too much doubt in his case to ask for this sentence in good faith,” Nolan wrote. “Only by testing the DNA can Georgia ensure Mr. Cromartie’s jury was correct to impose death because he was the shooter. Georgia officials must agree to DNA testing in this case before it’s too late; otherwise, the state risks an unjust execution.”

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Jurors Speak About Decision to Impose Life Sentence in Florida Case at Center of Conflict Between Prosecutor and Governor

Posted: November 8, 2019

On March 16, 2017, saying that capital punishment is “not in the best interests of this community or in the best interests of justice,” Orange/Osceola County (FL) state prosecutor Aramis Ayala announced that her office would not pursue the death penalty in any case. That decision, announced in connection with the prosecution of a man charged with killing his ex-girlfriend, her unborn child, and a police officer responding to the crime, ignited a political firestorm in which then-Florida Gov. Rick Scott removed Ayala from the case and replaced her with a special prosecutor. Scott subsequently issued executive orders removing Ayala from at least 26 other homicide cases.

On October 23, 2019, a Florida jury rejected the death penalty in the case that started it all, imposing a life sentence on Markeith Loyd (pictured) for the killings of Sade Dixon and her unborn child. The special prosecutor had sought the death penalty over the objection of Dixon’s family, who had supported Ayala’s decision to decapitalize the case. Loyd still faces a second trial and possible death sentence for the murder of police Lieutenant Debra Clayton.

Two jurors from Loyd’s trial spoke to local news outlet WFTV in early November, explaining how they reached their decision. One juror, who requested anonymity, said that two members of the jury were not initially certain of Loyd’s guilt, but were persuaded by the rest of the jury to vote to convict. “There were just some that didn’t believe that he’d committed the murders,” she said. Though the jury was split on the question of the appropriate sentence, she said everyone discussed the matter respectfully.

Jury foreman Glenn D. Glasgow said he told the jurors before they began their deliberations: “This is a decision that you’re going to make that tomorrow, you’re going to look at yourself in the mirror and go ‘I’ve made a right decision, based on my moral or ethical upbringing, this was my decision. As long you can live with that decision,’” he said, “'that will be the right decision.'” The jury deliberated less than an hour before returning a life verdict. Four jurors opposed a death sentence, Glasgow said. Glasgow said the jurors respected each other’s judgment and did not ask for explanations why they voted for or against the death penalty. Following the vote, there were no efforts to try to change the minds of any of the jurors.

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Justen Hall Executed in Second 2019 Texas Case to Raise Questions of Competency

Posted: November 7, 2019

Texas executed Justen Hall (pictured) on November 6, 2019 in the second Texas case of the year to present significant questions as to a prisoner’s competency to be executed.

Hall, a mentally ill death-row prisoner who had given up his appeals, had attempted suicide and had told courts on multiple occasions that he wanted to be executed. His lawyers—with whom he had refused to speak since 2017—said Hall exhibited symptoms of serious mental illness, including hallucinations, paranoia, and depression. On October 22, they filed a motion in El Paso County to request judicial review of Hall’s competency to be executed, but—relying on Hall’s self-assertion that he was competent—the trial court refused to hold a hearing on the issue.

In October 2016, Hall wrote a letter to the county court, saying, “These walls 24/7 have broken me. It is taking every last ounce of will to even make it from day to day.... I need to be put down like the rabid dog I am.” At that time, he asked the court to dismiss his appeals and set an execution date. In 2017, Hall sought to fire his attorneys, and they told the Texas Court of Criminal Appeals that they would seek a competency hearing if he persisted in his request. Hall then gave up his efforts to fire the attorneys.

According to prison records from that time, Hall attempted suicide in November 2016.

Hall’s lawyers had sought DNA testing of the murder weapon from his case, but Hall attempted to waive the motions seeking that testing. In January 2019, the Texas Court of Criminal Appeals denied the motion for testing, saying that an exculpatory result would not have made a difference in the jury’s verdict. In the same decision, the court said that Hall’s suicide attempt and statement that death row had “broken” him did not indicate a lack of competency.

“Being depressed by his circumstances is understandable and is a rational response to adverse conditions,” the court wrote. “In light of this testimony, Appellant's earlier statement about being ‘broken’ does not, even in combination with his suicide attempt, indicate a lack of competency.”

Hall’s lawyers argued that his medical records were replete with “numerous examples of his psychiatric condition deteriorating” over the course of the 14 years he was imprisoned on death row. Hall cut off communication with his lawyers in 2017 and later also cut off communication with his family. During a recent attempted visit by attorney Benjamin Wolff and Hall’s mother, Wolff said Hall “turned his back to me, and continued standing with his back to me (and the Visitors Area) for approximately an hour before he was escorted back to his cell.”

The case is the second in Texas in 2019 that raised questions of a condemned prisoner’s mental competency. A Henderson County court withdrew the death warrant that had scheduled Randall Mays’ execution for October 16, after his attorneys raised a claim of incompetence based upon a new diagnosis by prison doctors that Mays has schizophrenia. In withdrawing the warrant, District Judge Joe Clayton cited the need to “properly review all medical records submitted” in the case. Mays had previously received a stay of execution in 2015 on a competency claim, but the Texas Court of Criminal Appeals later found him competent to be executed.

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After Being Reversed Twice, Texas Appeals Court Takes Intellectually Disabled Prisoner Off Death Row

Posted: November 6, 2019

After being reversed twice by the United States Supreme Court, the Texas Court of Criminal Appeals (CCA) has resentenced intellectually disabled death-row prisoner Bobby James Moore to life in prison. In a three-page decision issued on November 6, 2019, 39 years after Moore was sentenced to death in Houston for a 1980 murder during a supermarket robbery, the CCA conceded that the U.S. Supreme Court has determined that “Moore … is a person with intellectual disability.” Given that determination, the CCA wrote, “[t]here is nothing left for us to do but to implement the Supreme Court’s decision.”

The CCA had been repeatedly criticized in the past for allowing the execution of intellectually disabled prisoners despite the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia that the practice constituted cruel and unusual punishment. In March 2017, in Moore’s case, the U.S. Supreme Court unanimously struck down the state’s use of a set of lay stereotypes to evaluate intellectual disability in death penalty cases as an unscientific “invention … untied to any acknowledged source” that lacked support from “any authority, medical or judicial.” The Court wrote that Texas’s “outlier” approach, “[b]y design and in operation, … create[s] an unacceptable risk that persons with intellectual disability will be executed.”

The Court returned Moore’s case to the CCA with directions to reconsider his claim based upon prevailing clinical standards for assessing intellectual disability. At that time, Harris County prosecutors agreed with Moore’s lawyers and mental health advocacy organizations that Moore meets the medically established criteria for intellectual disability and therefore could not be executed. Nonetheless, the CCA again ruled against Moore. Three judges dissented, cataloguing the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability. They wrote: “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief.”

In February 2019, the U.S. Supreme Court again reversed, criticizing the CCA for relying upon the same improper lay stereotypes and committing many of the same errors that had led the Court to overturn the CCA’s prior decision in the case. The Justices independently reviewed the evidence, concluded that Moore met the criteria for intellectual disability, and returned the case to the Texas courts.

The CCA wrote that the Supreme Court’s conclusion that Moore is intellectually disabled “is determinative.… Accordingly, we reform Applicant’s sentence of death to a sentence of life imprisonment.”

Moore’s defense team expressed pleasure at the court’s ruling. "We greatly appreciate that the Texas Court of Criminal Appeals has implemented the Supreme Court decision and has ensured that justice is done regarding the inappropriateness of the death penalty for Bobby Moore,” Cliff Sloan wrote in a statement.

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Idaho Prosecutor Says State’s Longest-Serving Death-Row Prisoner Should Not Be Executed

Posted: November 5, 2019

The prosecutor who sent Thomas Creech, Idaho’s longest-serving death-row prisoner, to jail 37 years ago now says that Creech and others sentenced to death in the Gem State should not be executed.

Jim Harris (pictured), former County Prosecutor for Ada County, sought the death penalty against Creech in 1982. Creech, who was first sentenced to death in another case in 1976, has spent more time in prison than any other person on the state’s death row, but in the years since Harris obtained a death sentence for Creech for a prison murder, the former prosecutor has become convinced that Creech should not be executed.

“When I asked for the death penalty against Tom Creech I definitely did believe he should suffer the death penalty,” Harris told WIVI-TV in Boise. “I don’t believe quite frankly that Tom Creech, at least based on the murder that he committed in the penitentiary, should be executed. And I don’t say that easily.” Harris told WIVI that he now believes Creech’s death sentence is disproportionately severe compared to the lesser sentences other prisoners received for murders that are worse than Creech’s prison killing.

Harris also commented on the wastefulness of Idaho’s death penalty. “It's a waste of time. It’s a terrible waste of money that is expended in these death penalty cases and they are never going to happen. So, the judges ought to simply bear up and sentence these people for fixed life and leave it at that,” he said. Idaho hasn’t carried out an execution in seven years, and no execution dates are set for Creech or the other seven people on death row. Only one person has been sentenced to death in Idaho since 2011.

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South Dakota Prisoner Executed After Supreme Court Denies Review of Anti-Gay Bias, Denial of Mental Health Expert

Posted: November 4, 2019

Whether South Dakota death-row prisoner Charles Rhines (pictured) lives or dies may depend less on whether he was constitutionally convicted and sentenced to death and more on whether the courts value finality more than they value fairness. As Rhines filed two separate petitions in the U.S. Supreme Court and an appeal in the South Dakota Supreme Court on November 1, the South Dakota Department of Corrections announced that his execution, scheduled for the week of November 3, 2019, would be carried out shortly after noon on Monday, November 4. [UPDATE: The U.S. Supreme Court declined to intervene in Rhines' case and he was executed.]

On November 1, Rhines’ lawyers filed a rare petition for writ of habeas corpus directly in the U.S. Supreme Court, asking it to take jurisdiction over the case and direct the lower federal courts to consider evidence that jurors had relied on anti-gay stereotypes in sentencing him to death. They also filed a petition for a writ of certiorari challenging South Dakota’s refusal to provide a defense mental health expert access to Rhines to conduct a psychological evaluation for his clemency application and procedural obstacles erected by a federal appeals court to obtaining review of that issue. At the same time, Rhines filed an appeal in the South Dakota Supreme Court challenging the trial court’s decision to permit the state to deviate from the execution protocol state law authorized for use in his case.

There is little dispute about the facts and the law that make Rhines’ death sentence constitutionally problematic. In February 2017, Supreme Court Chief Justice John Roberts declared that the “law punishes people for what they do, not who they are” and overturned a death sentence imposed based on “noxious” racial stereotypes. According to juror affidavits submitted with Rhines’ habeas petition: “One juror who had voted for death stated that ‘we also knew that [Mr. Rhines] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.’ A second juror indicated about deliberations: ‘One juror made . . . a comment that if he’s gay, we’d be sending him where he wants to go if we voted for [life imprisonment without the possibility of parole].’ And a third juror noted that there had been ‘lots of discussion of homosexuality’ and ‘a lot of disgust.’” The petition notes that no court has ever reviewed the merits of Rhines’ juror-bias claim because the federal courts considered it part of “an unauthorized ‘second or successive’ petition.”

Rhines argues that he could not have raised the issue prior to 2017 because South Dakota did not permit use of juror statements to challenge the jury deliberation process. That year, the U.S. Supreme Court held in Peña-Rodriguez v. Colorado that state rules of evidence such as South Dakota’s “no-impeachment rule” cannot be interposed to exclude juror statements that provide evidence of a violation of the Sixth Amendment right to a trial by an impartial jury. In a statement, Rhines’ attorney, assistant federal defender Shawn Nolan, said, “Anti-gay prejudice should never have any role in sentencing a man to death. It is shocking that no court has ever considered the new evidence of some jurors’ anti-gay statements. The U.S. Supreme Court must intervene to make sure a court hears this evidence before Mr. Rhines is executed.”

South Dakota’s lawyers did not address the substance of Rhines’ claim in their brief to the Court, instead subjecting the federal community defender office that is representing Rhines to a broad ad hominem attack and falsely accusing them of “posing as” federal attorneys.

Rhines’ separate cert petition states, “In support of his request for gubernatorial clemency, he seeks to present psychiatric and neuropsychological experts to attest to his significant cognitive and psychiatric impairments. However, in the absence of a court order, state corrections officials have for years refused to permit his experts to evaluate Petitioner in person.” Rhines had sought orders from both the federal district court and the U.S. Court of Appeals for the Eighth Circuit to grant his expert access to Rhines for an evaluation, but both courts denied his request on procedural grounds. The cert petition challenges the federal appeals court’s procedural ruling.

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Texas Court of Criminal Appeals Stays Execution of Rodney Reed

Posted: November 15, 2019

The Texas Court of Criminal Appeals stayed the execution of Rodney Reed (pictured) on November 15, 2019, directing the Bastrop County district court to review Reed's claims that prosecutors suppressed exculpatory evidence and presented false testimony and that he is actually innocent. The court's action culminated a whirlwind of activity on the Friday preceding Reed's scheduled November 20 execution. Earlier in the afternoon, the Texas Board of Pardons and Paroles unanimously recommended to Gov. Greg Abbott that he grant a 120-day reprieve of Reed's execution.

The decisions followed an outpouring of public support for stopping Reed's execution that was unparalleled in the modern history of the U.S. death penalty. The flood of attention included requests by Texas legislators from across the political spectrum, high-profile celebrities, legal organizations, diplomats, and nearly three million petitioners who have asked Texas officials to halt Reed’s execution or delay it to permit courts to consider mounting evidence that he is innocent and to allow for DNA testing.

The pressure from Texas public officials to put off the execution came from across the state and across the political aisle. In what Republican U.S. Senator Ted Cruz described on November 8 as a “remarkable bipartisan coalition,” 26 members of the Texas House of Representatives sent a letter to Gov. Abbott seeking a reprieve to allow for DNA testing that may exonerate Reed. The House letter was followed by a similar call by a bipartisan group of 16 Texas state senators. Cruz said that he supports capital punishment “but if there is credible evidence there’s a real chance the defendant is innocent, that evidence should be weighed carefully.”

Earlier in the day on November 15, Republican Texas Congressman Michael McCaul wrote in a letter to Abbott and the pardons board, “[a] death sentence is final, and given the doubt surrounding his innocence at this time, I believe our state cannot execute Mr. Reed in good conscience without fully reviewing all evidence.” The Republican Party in Polk County—which houses the state’s death row—adopted a resolution on November 8 calling on the governor to grant clemency and for the prosecutor to “cancel the November 20 execution date, test all the evidence, and initiate a new trial.”

The growing political opposition to Reed’s execution mirrored the flood of statements by major celebrities asking Texas to stand down. Reed’s early supporters included Dr. Phil McGraw, who devoted two days of the Dr. Phil Show to Reed’s case, and reality television personality Kim Kardashian. Recently performers Beyoncé, Meek Mill, Questlove, and Rihanna, and conservative television host Chuck Woolery, a native Texan, advocated on Reed’s behalf. In an appearance on CBS This Morning, Oprah Winfrey asked Gov. Abbott to “take a pause” to provide time to review the case. She said, "Something's off here. Something needs to be done."

The world diplomatic community and legal experts also raised concerns. The European Union wrote to the governor asking him to stop Reed’s execution and order DNA testing. American Bar Association president, Judy Perry Martinez, wrote to the Texas Board of Pardons and Paroles supporting clemency and saying that the ABA is “deeply troubled” by Reed’s impending execution. Former Texas Court of Criminal Appeals judge Elsa Alcala said that “[t]he evidence today is not what the evidence was [when Reed was sentenced to death] in 1998, or even what it was back 5 years ago when I looked at the case.” Stressing that procedural barriers to the consideration of new evidence undermine the availability of meaningful court review, Alcala asked the governor to intervene.

Reed’s execution also drew significant attention from activists, faith leaders, and the public at large. Supporters have rallied at the Texas Capitol and in front of Governor Abbott’s mansion. Journalist and activist Shaun King spearheaded calls for supporters to sign a petition to stop Reed’s execution, with nearly 3 million people signing on. The Catholic Diocese of Austin also asked Gov. Abbott to issue a reprieve. Bishop Joe Vasquez explained, “[e]vidence has now come forward since Mr. Reed was sentenced and that needs to be reviewed.”

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On Election Night, Reform Prosecutors Win in Virginia, California, and Pennsylvania

Posted: November 14, 2019

Reform prosecutors made further inroads into the administration of American law enforcement, sweeping county elections in Northern Virginia and gaining control of prosecutor’s offices in Pennsylvania and California. Progressive prosecutors rode a blue wave of suburban votes on November 5, 2019 that solidified Democratic control of every state legislative and prosecutorial seat in the Northern Virginia counties bordering the nation’s capital and wrested control of county government from one of Philadelphia’s most historically Republican suburbs. But the insurgency was ideological, not partisan, as former public defender Chesa Boudin (pictured) unseated the candidate backed by the Democratic Party in a close District Attorney’s race in San Francisco.

The new prosecutors ran on platforms of reducing incarceration, ending cash bail and “the criminalization of poverty,” promoting police and prosecutorial accountability, and reducing reliance on harsh punishments, including the death penalty. “It’s not a moment, it’s a movement,” tweeted Philadelphia District Attorney Larry Krasner, whose office is considered a pioneer in progressive-oriented criminal legal reform.

The reform-prosecutor movement has had a direct impact on the declining use of capital punishment across the country. Between 2015 and 2018, voters replaced county prosecutors in a third of the U.S. counties with the largest county death rows. The clearest shift in prosecutorial power came in Northern Virginia, where four of the most populous counties elected progressive or liberal prosecutors as their new commonwealth attorneys. The election marked a “sea change” in the state’s approach to law enforcement, said criminal defense attorney Marvin D. Miller.

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Former State and Federal Judges, Prosecutors, and Law Enforcement Officials and Families of Murder Victims Urge Federal Government to Call Off Executions

Posted: November 13, 2019

Hundreds of former state and federal judges, prosecutors, law enforcement and corrections officials, and family members of homicide victims have signed on to a series of letters urging the federal government to halt the five federal executions scheduled for December 2019 and January 2020. In four separate letters addressed to President Donald Trump and Attorney General William Barr, 175 family members of murder victims, 65 former state and federal judges, 59 current and former state and federal prosecutors and law enforcement officials, and 26 former correctional professionals offered diverse perspectives on why the scheduled executions should not take place.

Family members of murder victims were the largest group to urge the administration to call off the executions. When Attorney General Barr announced on July 25 that the federal government would resume executions after a 16-year hiatus, he attempted to justify that decision as being a service to victims’ families. Barr said at the time, “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The 175 victims’ family members disagreed. Calling for an end to capital punishment, they wrote: “The death penalty does not prevent violence. It does not solve crime. It does not provide services for families like ours. It does not help solve the over 250,000 homicide cold cases in the United States. It exacerbates the trauma of losing a loved one and creates yet another grieving family. It also wastes many millions of dollars that could be better invested in programs that actually reduce crime and violence and that address the needs of families like ours.”

The other groups did not advocate death-penalty abolition, but criticized systemic flaws in the federal death penalty as currently administered and said the executions should be halted. The letter from federal and state judges argued that “there are too many problems with the federal death penalty system, and too many unanswered questions about the government’s newly announced execution procedure, to allow executions to proceed.” The judges wrote that, from their experience on the bench, “[r]acial bias, geographic disparities, and deficient counsel played outsized roles in the decisions to seek and impose the death penalty.”

The letter from law enforcement officials and prosecutors—signed by police chiefs, former state attorneys general, former federal prosecutors, and current and former district attorneys—said “[t]he federal death penalty system is marked by many of the same troubling flaws found in the state death penalty systems," listing the same concerns as the judges, as well as the “alarming frequency” of wrongful convictions.

The corrections officials spoke directly to the effect of executions on prison personnel who must carry them out. “The psychological toll of carrying out a death sentence is well-documented,” they wrote. “Those of us who have participated in executions have experienced the trauma first-hand, while others of us have seen the toll it has taken on colleagues. We believe the federal government is compounding the risk to corrections staff by scheduling these executions so close together.” Their letter emphasized the risk presented by the new protocol, the rushed timeline of executions, and staffing shortages in the federal Bureau of Prisons. “Our colleagues at the Bureau are professionals, but it is incumbent on leaders to avoid putting public servants in positions where they face a real risk of harm or error. We hope you will reconsider the scheduled executions to ensure the safety and wellbeing of federal corrections officers.”

The U.S. government has scheduled five executions to take place over a five-week period between December 9, 2019 and January 15, 2020, including three that were set for the five-day period from December 9–December 13. In a separate request, Earlene Peterson has asked President Trump to commute the death sentence of Daniel Lewis Lee, who is scheduled to be executed December 9 for the murders of Peterson’s daughter, son-in-law, and granddaughter. A federal court has stayed the December 11 execution of Lezmond Mitchell.

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New Podcast: “Unrequited Innocence” with Rob Warden and John Seasly

Posted: November 12, 2019

At least 166 wrongfully convicted death-row prisoners have been exonerated since the death penalty was reinstituted in the United States in 1973. That number, however, may only scratch the surface in assessing the degree to which innocent men and women are being sent to U.S. death rows.

In the latest episode of Discussions with DPIC, Rob Warden (pictured, left) and John Seasly (pictured, right) speak with DPIC Managing Director Anne Holsinger about a body of death-penalty cases in which prisoners have not been exonerated, despite strong evidence of innocence. Warden, the Executive Director Emeritus of the Center on Wrongful Convictions and a co-founder of both the National Registry of Exonerations and Injustice Watch, and Seasly, a reporter at Injustice Watch, talk about their path-setting law review article and profile series, “Unrequited Innocence,” highlighting developments in 24 cases involving 25 death-sentenced defendants whose cases present “compelling evidence of innocence.” In the podcast, they discuss why they chose to focus on unredressed wrongful convictions, the patterns and themes that emerged in their research, and the remedies that they recommend.

The series was inspired by Warden’s work on wrongful convictions and began with a query to 67 law school-based innocence projects across the country to identify cases in which the legal process has failed to exonerate innocent death-row prisoners. Warden and Seasly narrowed the list of cases that were submitted, focusing their research on cases in which new evidence of innocence came to light after the trial. They say the 24 cases they included are “by no means an exhaustive list,” but merely a snapshot of wrongful death sentences that have not been fully acknowledged and redressed by the legal system.

Citing a 2014 study that conservatively estimated a 4.1% error rate in capital convictions, Warden and Seasly say hundreds of innocent people are likely still on U.S. death rows. Warden said he believes the 4.1% rate is an underestimate, pointing to the more than 6% error rate in Illinois (303 death sentences prior to abolition, 21 exonerations), which has “a particularly active pro bono legal community and journalists who have looked into these cases in great depth.” Warden says “[i]f that same effort existed in every state, I think that the results elsewhere would be as stunning as the ones in Illinois are, and perhaps even more so.”

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Texas Prisoner Receives Second Stay of Execution Over Religious Discrimination Issue

Posted: November 11, 2019

A federal district court has granted a stay of execution to a Buddhist death-row prisoner in Texas over allegations that the state is discriminatorily denying him access to religious services that would be available to Christian prisoners on the day of their execution. On November 7, 2019, the United States District Court for the Southern District of Texas stayed the November 13 execution of Patrick Murphy (pictured), marking the second time in 2019 that his execution has been stayed over allegations that Texas’ policies regarding religious advisors are discriminatory. The Texas attorney general’s office has appealed the order.

In March, the U.S. Supreme Court granted a last-minute stay to Murphy based on allegations that Texas allowed Muslim and Christian prisoners to have a spiritual advisor present in the execution chamber, but did not grant such access for prisoners of other faiths. The stay came less than two months after the Court was sharply criticized for reversing a stay of execution and permitting Alabama to execute Domineque Ray, a Muslim death-row prisoner who had not been permitted to have an imam present in the execution chamber in circumstances in which a Christian chaplain was provided to condemned Christian prisoners. At the time, Justice Brett Kavanaugh suggested two ways Texas could afford all religious equal treatment and avoid a religious discrimination violation: by permitting all condemned prisoners to have a religious adviser of their religion present in the execution chamber or by excluding religious advisers from the execution chamber altogether and providing equal access to a religious adviser in witnessing the execution.

Texas responded by excluding religious advisers from the execution chamber. However, Murphy alleged that the new policy continues to discriminate because the state allows Christian and Muslim chaplains, who are employed by the Texas Department of Criminal Justice, to remain with prisoners until the moment the prisoner enters the executions chamber and requires other spiritual advisors to leave the prisoner two hours before execution.

In the stay order, U.S. District Judge George C. Hanks Jr. wrote that the religious discrimination concerns raised by Murphy about Texas’ pre-execution procedures “are as compelling as those in [his] original complaint.” The state’s revised policy “still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors,” Hanks wrote. “If Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit.” Hanks temporarily halted Murphy’s execution, writing that a stay would provide the court “time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.”

Texas’ Office of Attorney General filed a motion to vacate the stay in the U.S. Court of Appeals for the Fifth Circuit on November 8, 2019. Murphy filed his response on Sunday, November 9, supported by an amicus brief by the Becket Fund for Religious Liberty. As of publication, the circuit court had not ruled on the state prosecutor’s motion.

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Summer 2019 “Death Row USA” Shows Smallest U.S. Death-Row Population in 27 Years

Posted: November 22, 2019

The number of people on death row or facing capital resentencing in the United States is at a 27-year low, according to a DPIC analysis of data from a new death-row census by the? NAACP Legal Defense and Educational Fund ?(LDF). The Summer 2019 edition of Death Row USA, released earlier this month, reports that 2,656 people were on death row as of July 1, 2019. That last time DRUSA reported a death-row population that small was in the Fall of 1992, when LDF found that 2,636 people across were sentenced to death or facing capital resentencing across the country.

The summer 2019 death row count reflects a 3% drop from last year’s July report and a 26% decline from the height of the U.S. death-row population at the turn of the century. death row was highest at the turn of the century. The decline in death row size is greater than the number of executions indicating that it is a result of the number of death row prisoners resentenced to life or less or dying on death row exceeding the number of new death sentences imposed.

While the number of death-row prisoners continues to shrink, so too has its geographic scope. The Summer 2019 Death Row USA is the first report to reflect that the state of New Mexico no longer has anyone on death row. A June ruling from the state supreme court, vacated the death sentences of the state’s final two death-row prisoners who had remained on death row despite New Mexico’s abolition of the death penalty in 2009. The abolition law had only applied to future cases.

As of July 2019, 30 states, plus the U.S. federal government and the military, had at least one prisoner on death row. However, that figure includes four states (California, Colorado, Oregon, and Pennsylvania) that have imposed moratoria on executions and New Hampshire, which became the 21st state to abolish the death penalty earlier this year and has a single prisoner on its death row. According to Death Row USA, more than one-third of the nation’s death-row prisoners (918 people, or 35%) are in the moratorium states.

The 2,656 prisoner total also includes 187 people in non-moratorium states who are not under active death sentences because their convictions or death sentences have been overturned in the courts but whose death sentences may be reinstated by appeals courts or re-imposed in a new trial. Taking the court reversals and the state moratoria into account, Death Row USA calculates that 1,551 death-row prisoners have “enforceable” death sentences. Nearly 42% of the nation’s death-row prisoners do not have active and enforceable death sentences.

California’s death row remains the largest in the nation, with 729 prisoners, followed by Florida (348), Texas (224), Alabama (177), and Pennsylvania (154). Nationwide, the death row population continues to reflect racial disparities in capital punishment. 42% of death-row prisoners were white, 42% were Black, 13% Latinx, 2% Asian, and 1% were Native American. Among states with at least 10 prisoners on death row, states that had the highest percentage of racial and ethnic minorities were Nebraska (75%), Texas (73%), and Louisiana (71%). Two percent of all death-row prisoners are women.

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Washington District Court Enjoins U.S. Government From Carrying Out Federal Executions

Posted: November 21, 2019

A federal judge in Washington has issued a preliminary injunction barring the United States government from carrying out four executions scheduled for December 2019 and January 2020. The opinion, issued November 20, 2019, temporarily halts the federal executions pending completion of court challenges to the government’s execution process and is a major blow to the Trump administration’s plan to resume carrying out the federal death penalty after a sixteen-year hiatus.

The U.S. Department of Justice (DOJ) appealed the district court’s order on November 21, and Attorney General William P. Barr (pictured) told the Associated Press that he would take the case to the U.S. Supreme Court, if necessary.

On July 25, the Department of Justice announced that the federal government intended to restart federal executions and that Barr had directed the Federal Bureau of Prisons (BOP) to adopt a new protocol specifying that federal executions would be carried out using the drug pentobarbital. Barr also directed the BOP to schedule five executions in a five-week period, setting execution dates for Daniel Lewis Lee (December 9), Lezmond Mitchell (December 11), Wesley Ira Purkey (December 13), Alfred Bourgeois (January 13), and Dustin Lee Honken (January 15).

The prisoners sought to stay their executions on a variety of procedural and constitutional grounds. However, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, found it necessary to address only one: whether the Department of Justice had legal authority to unilaterally establish a federal execution protocol. Judge Chutkan ruled that it did not. In a fifteen-page opinion, she wrote that the government’s proposed execution process conflicted with the provisions of the federal death penalty statute Congress passed in 1994 and that the prisoners were likely to prevail on their claim that the DOJ had “exceeded its statutory authority” in adopting the protocol.

Chutkan is presiding over a 14-year-old lawsuit that challenges the U.S. government’s execution procedures. An injunction has long been in place preventing the government from executing the prisoners who brought that suit. The five prisoners whom DOJ selected for execution were not parties to the suit, leading to criticism that the Trump administration had chosen them as an end-run around judicial oversight of its proposed execution protocol. Four of the prisoners moved to join the litigation and sought to enjoin their executions until the case could be resolved. The fifth federal prisoner, Lezmond Mitchell, did not join the lawsuit. A federal appeals court stayed Mitchell’s execution on October 4 so it could complete review of an appeal that was already before the court when his death warrant was signed.

In granting the preliminary injunction, Chutkan wrote that, without it, the prisoners "will suffer the irreparable harm of being executed under a potentially unlawful procedure before their claims can be fully adjudicated.” She rejected the government’s argument that it would be harmed by further delaying the executions, saying that “the public is not served by short-circuiting legitimate judicial process, and is greatly served by attempting to ensure that the most serious punishment is imposed lawfully.”

Shawn Nolan, one of the lawyers for Honken, praised the order: “By granting the preliminary injunction, the court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”

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Pennsylvania Settles Death-Row Conditions Lawsuit, Ends Mandatory Permanent Solitary Confinement

Posted: November 20, 2019

Pennsylvania has agreed to end its policy of mandatory incarceration of death-row prisoners in permanent solitary confinement. The policy change was part of a proposed settlement agreement of a federal class action lawsuit brought by a coalition of prisoners’ rights organizations on behalf of the Commonwealth’s 136 death-row prisoners, most of whom are housed in the State Correctional Institution-Greene (pictured from Google Earth image).

The federal settlement agreement, filed with the federal court on November 18, 2019, provides death-row prisoners with at least 42.5 hours a week out of their cells and 15-minutes of phone access each day, and allows prisoners to have contact visits, outdoor exercise, daily showers, group religious services, jobs, and access to educational programs. It also ends the degrading practice of subjecting death-row prisoners to body cavity searches whenever they leave their cells and requiring 24-hour illumination of the prisoners’ cells.

“This settlement brings Pennsylvania out of the penological dark ages and makes it a national leader in treating all incarcerated persons humanely,” said Witold Walczak, legal director of the ACLU of Pennsylvania, in a statement.

The lawsuit, which was filed by the national ACLU, the ACLU of Pennsylvania, the Pittsburgh-based Abolitionist Law Center, and two Philadelphia law firms in January 2018, challenged the Commonwealth’s policy mandating permanent solitary confinement for all death-sentenced prisoners. The prisoners were confined 22-hours per day in cells the size of a parking space, with lights that never turned off, allowed out for a maximum of two hours per day for exercise, and denied human contact with family members during prison visits.

In a news release announcing the settlement, ACLU National Prison Project deputy director Amy Fettig described the state’s use of long-term solitary confinement as “torture.” The five prisoners in whose names the suit was filed had spent between 16 and 27 years each in solitary confinement. According to the lawsuit, 80% of the state's death-row prisoners had been in solitary confinement for more than a decade.

The Pennsylvania settlement, which still requires approval from the court, is part of a national effort to end the use of mandatory solitary confinement for death-row prisoners. In May 2019, a federal appeals court in Virginia ruled that the Commonwealth’s former policy of 23- or 24-hour per day solitary confinement of death-row prisoners constituted cruel and unusual punishment in violation of the Eighth Amendment. Two months later, in the midst of a federal lawsuit challenging its death-row conditions, South Carolina ended its practice of housing death-row prisoners in as much as 23-hour per day solitary confinement in windowless cells the size of a parking space. In September 2019, Oklahoma ended its policy of housing its death-row prisoners in solitary confinement in an underground facility that civil rights groups had called “inhumane and oppressive.” The groups had threatened legal action if the state did not institute reforms.

Previously, Arizona settled a federal death-row conditions lawsuit, agreeing to end its policy of automatically and indefinitely incarcerating death-row prisoners in solitary confinement. Prompted by other court challenges, other states including California, Colorado, Louisiana, Nevada, North Carolina, and Tennessee have provided death-sentenced prisoners more time out of their cells and, in some cases, now allow them to eat meals and exercise with other inmates, have contact visits with family members, and hold prison jobs.

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Civil Rights Groups File Class Action Lawsuit Against Mississippi Prosecutor Over Systemic Racial Discrimination in Jury Selection

Posted: November 19, 2019

Two civil rights organizations have filed a class action lawsuit against Mississippi prosecutor Doug Evans (pictured) seeking an end to what they describe as a “policy, custom, and usage of racially discriminatory jury selection.” The lawsuit, filed by the NAACP Legal Defense Fund and the MacArthur Justice Center on November 18, 2019 in the U.S. District Court for the Northern District of Mississippi on behalf of black prospective jurors in Mississippi’s Fifth Circuit Court District, asks the federal court to issue an injunction against Evans to bar his office from discriminatorily excluding black jurors from jury service because of their race.

Evans has been found by multiple courts, including the U.S. Supreme Court, to have unconstitutionally exercised his discretionary jury challenges to strike prospective black jurors from serving on juries. Since 1992, when Evans became District Attorney in Mississippi’s Fifth Circuit Court District, his office has struck black prospective jurors at 4.4 times the rate at which white prospective jurors were stricken. According to the lawsuit, that is “a rate that is unparalleled in any available study.” Evans personally prosecuted the six trials of Curtis Flowers, a death-row prisoner whose most recent conviction was overturned by the U.S. Supreme Court in June because of Evans’ systemic racial discrimination in jury selection.

The lawsuit places Evans’ systemic jury discrimination in the historical context of Jim Crow, lynchings, and white supremacy, providing local examples of the Fifth Circuit Court District’s history of racial prejudice. The complaint states, “the honor and privilege of jury service is a defining feature of what it means to be an American citizen. When state or local officials bar a citizen from service because he or she is Black, that discriminatory act is no mere indignity. It is an assertion that the prospective juror is inferior—a second-class citizen who cannot be entrusted with the responsibilities of full citizenship.” The lawsuit names four plaintiffs as representatives of the class of prospective black jurors, including Nichole Young, whom Evans struck from jury service in Curtis Flowers’ third trial. Evans claimed he had removed Young from the jury because of her views about the death penalty, but a court found that explanation “suspect” because Young’s response to questioning about the death penalty was the same as two white jurors whom Evans permitted to serve. “I was open to hear the evidence and hear the case,” Young said. “It’s not fair.”

The plaintiffs do not seek monetary damages against Evans, but request that the court “issue a permanent injunction forbidding the Defendant and his agents, employees, and successors in office from maintaining a custom, usage, and/or policy of exercising peremptory challenges against prospective Black jurors because of their race.” Jim Craig of the MacArthur Justice Center said, “I don't think he's going to change his ways until he's ordered to change his ways. We think this is the way to actually force him to change.” Chris Kemmitt of the NAACP Legal Defense Fund said, “There’s nothing to stop him from continuing to use his office as a means of discriminating against Black prospective jurors and functionally rendering them second-class citizens, other than intervention by a federal court at this point.”

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Juror Admits Bias in Tennessee Case With Pending Execution Date

Posted: November 18, 2019

A Tennessee death-row prisoner who is facing execution in early December is seeking to reverse his 1992 conviction and death sentence in light of new information that a juror who served on his case failed to disclose that she was biased against him.

Lee Hall (pictured), who is scheduled to be executed December 5, 2019, was convicted of killing his estranged girlfriend, Traci Crozier, and sentenced to death. However, in a November 14 hearing in Hamilton County Criminal Court, he says his constitutional right to be tried by an impartial jury was violated when one of his jurors did not reveal to the court that she was biased against him because she had been a victim of domestic violence.

In a sworn affidavit Hall filed with the court in October, the juror—identified in court papers as “Juror A” to protect her privacy—said she had been subjected to recurring domestic violence and rape over a six-year period during an abusive first marriage. Juror A said she had not disclosed her personal history during jury selection, despite several opportunities to do so, in part because at that time she had not considered herself to be a victim. She started seeing a therapist in 2007 and only then began to address the psychological impact of the abuse. Earlier this year, after she had become aware that Hall was facing execution, Juror A contacted his attorneys and, for the first time, revealed her history of domestic abuse.

Hall’s court pleadings allege that “Juror A concedes that she was actually biased against Mr. Hall at the time of the trial and in fact hated him because he reminded her of her abusive husband.” The juror’s “affirmative misrepresentations” during jury selection, Hall’s lawyers argue, “rendered Mr. Hall’s capital murder trial fundamentally unfair.”

In her affidavit, Juror A said that, during the course of Hall’s trial, “[a]ll these memories [of abuse] flooded back to me …. I could see myself in Traci [Crozier]’s shoes, given what happened to me. I hated Lee for what he did to that girl.” At the hearing, she explained why she hadn’t disclose her experience at the time of the trial, saying, “[i]n 1969, there was really no such thing that I knew of, of date rape, especially since I'd been dating him for so long. I didn't even know the term 'domestic abuse' at the time. I really thought it was — I mean, I never thought of it as a crime. I had no notion that I had ever been a victim of a crime.”

Hamilton County District Attorney Neal Pinkston opposed Hall’s petitions, arguing that Hall’s lawyers should have contacted Juror A during the regular appeals process and that his juror-bias claim is now untimely. They responded that, from 1998-2003, his defense team did try to track down the jurors, but Juror A lived out of state and, with the limited resources available to defend an indigent prisoner, they could not afford a flight to interview her. Juror A said that she probably still would not have identified herself as a victim of domestic abuse or rape at that time.

Judge Don Poole said that, because of the nature of the allegations, he decided that a hearing was necessary. “[T]here is law to the effect that in certain circumstances of due process fairness will allow certain things to be presented to the court, and for that reason, I have allowed this second petition for post-conviction relief to go forward," he said.

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On Giving Tuesday, Please Support the Death Penalty Information Center

During this season of giving, please take a moment to consider the value that DPIC's work provides you. The Death Penalty Information Center is supported entirely through grants and donations from generous supporters like you. Journalists, attorneys, students, and members of the public rely on us to provide trustworthy, reliable, and accurate information about capital punishment. If that work is important to you, please click here to donate.

Gallup Poll—For First Time, Majority of Americans Prefer Life Sentence To Capital Punishment

Posted: November 25, 2019

For the first time since Gallup began asking the question in 1985, a majority of Americans now say life imprisonment is a better approach for punishing murder than is the death penalty. According to the 2019 Gallup death-penalty poll (click here to enlarge graphic), 60% percent of Americans asked to choose whether the death penalty or life without possibility of parole “is the better penalty for murder” chose the life-sentencing option. 36% favored the death penalty.

The response reflects a 15-percentage-point shift in American’s views towards capital punishment in just five years. In 2014, the last time Gallup asked the question, 50% said the death penalty was the better approach to punishing murder, while 45% preferred life in prison. “This is a pretty dramatic shift in opinion,” Gallup Senior Editor Dr. Jeffrey Jones, who conducted the survey, told the Tulsa World.

The shift away from capital punishment crossed partisan lines, though it was more pronounced among Democrats and Independents. In his analysis of the poll for Gallup, Jones wrote, “all key subgroups show increased preferences for life imprisonment. This includes increases of 19 points among Democrats, 16 points among independents, and 10 points among Republicans.”

Gallup also surveyed Americans’ views of the death penalty in the abstract, asking respondents the yes or no question: "Are you in favor of the death penalty for a person convicted of murder?" For the second straight year, 56% said they favored the death penalty. It was the second lowest level of support for the death penalty in 47 years, one point above the 55% who said they supported the death penalty in October 2017.

Opposition to the death penalty increased to 42%, the highest percentage of Americans to say they oppose capital punishment in the modern history of the U.S. death penalty. The last time Gallup measured a higher level of opposition to the death penalty was in May 1966, when 47% opposed capital punishment. The only other time in the history of Gallup's death-penalty polling that opposition to capital punishment was higher was in January 1965, when 43% of respondents told Gallup they opposed the death penalty.

Support for capital punishment peaked at 80% in 1994 and had been at 60% or above every year from 1976 through 2016. The last time public support for capital punishment polled lower was in March 1972, just before the U.S. Supreme Court declared U.S. death penalty statutes unconstitutional in Furman v. Georgia.

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Editorials: Departing From Prior Position, Orlando Sentinel Calls for Abolition of Death Penalty

Posted: November 27, 2019

In a departure from its prior editorial stand, the Orlando Sentinel published an editorial on November 22, 2019 calling for Florida to abolish the death penalty. Describing the state’s capital-punishment system as a “hopeless quagmire of inequities,” the Sentinel said “[t]oo many questions cannot be adequately answered for us to continue supporting the death penalty, and for Florida to continue administering it.”

The Sentinel editorial board had previously raised concerns about specific death-penalty cases and practices, including Florida’s former policy of allowing death sentences when a jury was not unanimous, but this was the first time it had called for an end to the death penalty. The board said, over time, it “has become increasingly concerned about the death penalty’s inequities and, in particular, what the rate of exonerations suggests about how often the justice system gets it wrong.”

The editorial noted several overarching problems with capital punishment, saying, “It does not deter murder. It disproportionately affects the poor and minorities. It drains the state budget.” The paper focused its discussion on the arbitrariness of death-penalty outcomes and the persistent risk of wrongful convictions. Using two recent capital trials to highlight the unpredictability in sentencing decisions, the board wrote: “Here in Central Florida, an Orange County jury recently spared remorseless career criminal Markeith Loyd from the death penalty for murdering his girlfriend and their unborn child. A few weeks later, an Osceola County jury recommended death for a mentally disturbed Marine veteran who murdered two Kissimmee police officers. … No law should stand if it consistently produces such unequal outcomes,” the editorial said.

Regarding innocence, the editorial noted that Florida has had more death-row exonerations than any other state, with 29. “Only Illinois, with 21 exonerations, comes close to Florida’s total. The next closest is Texas, with 13.” That problem, the paper indicated, has been exacerbated by legislative resistance to redressing unfair trial procedures. “Compelled by the courts, Florida lawmakers eventually, and reluctantly, passed a law requiring a unanimous vote to recommend death. That’s already had the effect of lowering the number of death sentences,” the editorial states. This policy likely contributed to Florida’s high number of wrongful death sentences. Research by the Tampa Bay Times found that, in 90% of Florida death-row exonerations for which the jury vote was known, the judge had imposed a death sentence after a non-unanimous vote for death or a recommendation for life. “The fates of the condemned are decided by a roulette of timing, luck, legislative posturing and judicial whim. And no state spins the wheel of haphazard justice quite like the Sunshine State,” the Sentinel said.

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Death-Penalty Roles Inspire Actors to Take Stands for Social Justice, Against Death Penalty

Posted: November 26, 2019

Popular culture has the potential to change social attitudes, and actors in two eagerly anticipated movies focusing on the death penalty are hoping that their films will do just that. In recent interviews about their roles in the dramas Just Mercy and Clemency, actors Jamie Foxx, Alfre Woodard, and Aldis Hodge discuss how those films inspired them to open up about their past and affected their views on capital punishment.

Just Mercy became highly personal for Foxx (pictured right, with Just Mercy co-star Michael B. Jordan), whose father was imprisoned for seven years for possessing $25 worth of an illegal substance. The movie—an adaptation of ?Bryan Stevenson’s ?best-selling book of the same name—follows the story of Stevenson’s against-the-odds efforts to free wrongfully convicted death-row prisoner ?Walter McMillian, whom Foxx portrays. McMillian was framed for the 1986 murder of an 18-year-old white woman in Monroeville, Alabama in a racially charged investigation and trial. Foxx said he has “never been for the death penalty” and the film reflects the reality and his family experience of the legal process as an instrument of racial injustice. “That’s why it’s important to let people know,” he said, “because what I’m telling you is something that everybody that is African American in this building goes through every single day and we’ve become used to it.”

Foxx reflected on why he considers the message of Just Mercy so important: “I’ve always said this about America, our natural resource is freedom. And the great thing about America is the evolution of it. We got this wrong at one point in American history, we’re righting those things, and we continue to do it. Hopefully we understand that this is an ongoing thing and accept that this is a problem and then try to fix it because like Bryan Stevenson would say, ‘If we don’t acknowledge that these things are happening, then we can’t take steps in trying to correct it.’”

Woodard says her social activism attracted her to Clemency, writer-director Chinonye Chukwu’s acclaimed drama about the emotional and psychological down-spiral of prison warden Bernadine Williams, as she prepares to oversee the execution of death-row prisoner Anthony Woods. “I have been a social activist since I was 14,” she said in a conversation hosted by Variety. “My sense of being an artist is completely rooted in my activism and my spirituality. The death penalty, state-sponsored executions, every time they happen, it takes something out of me personally. And I weep.”

Woodard was intrigued by Chukwu’s decision to focus on the death penalty from the perspective of a prison warden. “We haven’t … talked out loud about the fact that the people that we charge to carry out these executions have a higher PTSD rate — or as high a rate — as people with multiple deployments on battlefields.” In an interview with Gold Derby she said her dream is that the film will help “to have this be part of mainstream conversation. We’ve never looked at the lives of people that we charge to carry out our wishes of having executions. I want this to go to the malls. I don’t just want it in the art houses.”

Hodge, who plays death-row prisoner Woods, told Gold Derby that he is committed to be “a part of art that has the potential to move the needle, to push the conversation for a progressive reason.” As a result, he chooses projects “that can hopefully do more good out there in the world.” Clemency, he says, crystalized his views on capital punishment. Hodge said that before he made the film, he didn’t know how he would react “[i]f somebody that I loved was taken from me, and the death penalty was laid at my feet as an option.” Now, understanding how the death penalty “affects everybody” involved, he says “this film has definitely shaped my perspective to say absolutely no, I would always vote against capital punishment.”

Clemency and Just Mercy are both set for theater releases in December 2019. Clemency?won the U.S. Grand Jury Prize for Drama at the Sundance Film Festival in February 2019, the first time the award has been given to a movie directed by an African-American woman.

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Supreme Court Ruling Halts Scheduled Federal Executions

Posted: December 7, 2019

The United States Supreme Court has denied an application by the U.S. Department of Justice to lift a federal court injunction blocking the federal government from carrying out four executions scheduled for December 2019 and January 2020. The Court's unanimous ruling, issued Friday evening December 6, ensures that there will be no federal executions in 2019.

On July 25, the Department of Justice (DOJ) announced that the federal government intended to restart federal executions and that Attorney General William Barr had directed the Federal Bureau of Prisons (BOP) to adopt a new protocol specifying that federal executions would be carried out using the drug pentobarbital. Although the federal government has not conducted any executions in sixteen years, Barr directed the BOP to schedule five executions in a five-week period, with the first three executions scheduled over a period of five days. The BOP set execution dates for Daniel Lewis Lee (December 9), Lezmond Mitchell (December 11), Wesley Ira Purkey (December 13), Alfred Bourgeois (January 13), and Dustin Lee Honken (January 15).

The government's non-compliance with established rulemaking procedures and its compressed execution schedule set off a flurry of litigation challenging the legality and constitutionality of the execution protocol, as well as case-related litigation on the constitutionality of the individual executions. Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, who is presiding over a previously dormant challenge to the federal execution process, issued a preliminary injunction on November 20 that would temporarily halt the federal executions pending completion of court challenges to the legality of the federal government’s execution process. The District Court's ruling found that the government’s proposed execution process conflicted with the provisions of the federal death penalty statute Congress passed in 1994 and that the prisoners were likely to prevail on their claim that the DOJ had “exceeded its statutory authority” in adopting the protocol.

The DOJ then filed an emergency application in the United States Court of Appeals for the District of Columbia Circuit asking the appeals court to vacate or stay enforcement of the injunction. In an unsigned order issued on December 2, Judges Judith W. Rogers, Thomas B. Griffith, and Neomi Rao — appointed by Presidents Bill Clinton, George W. Bush, and Donald Trump, respectively — unanimously declined to disturb the injunction. The one-page order did not address the legality of the government's execution protocol or whether the District Court had properly issued the injunction, but held that the DOJ and the BOP had "not satisfied the stringent requirements" to vacate the injunction — and permit executions — before the appeals court could rule on the merits of the appeal.

Within hours of that ruling, the DOJ filed an application in the U.S. Supreme Court asking it to lift the injunction. The DOJ application had incorrectly asserted that the Circuit Court had upheld the injunction, the merits of which was still pending on appeal before the circuit. The Justices unanimously declined to vacate the injunction, but directed the federal appeals court to expeditiously address the government's appeal of the injunction, writing: "We expect that the Court of Appeals will render its decision with appropriate dispatch."

Three of the justices on the Court expressed their belief that the DOJ "is very likely to prevail [on the merits of its appeal] when this question is ultimately decided." In a statement written by Justice Samuel Alito and joined by Donald Trump appointees Neil Gorsuch and Brett Kavanaugh, the justices said they saw "no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days. The question, though important, is straightforward and has already been very ably briefed in considerable detail" by the parties.

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Federal Appeals Court Grants New Trial to Arizona Death-Row Prisoner Who May Not Have Committed Murder

Posted: December 6, 2019

A federal appeals court has reversed the conviction of Arizona death-row prisoner Barry Jones (pictured) based on medical evidence suggesting that he may not have committed the murder for which he was sentenced to death.

On November 29, 2019, the U.S. Court of Appeals for the Ninth Circuit threw out Jones’ convictions for child abuse, sexual assault, and felony murder of his girlfriend’s four-year-old daughter amid doubts about the prosecution’s claims that Jones had battered and sexually abused the girl and then caused her death by failing to obtain necessary medical care. Writing for a unanimous three-judge panel, Circuit Judge Richard R. Clifton said that Jones’ lawyers unreasonably failed to investigate and present medical evidence that the injuries that ultimately killed Rachel Gray in May 1994 could not have been sustained during the time period in which prosecutors said Jones had been alone with the girl.

Clifton, an appointee of former President George W. Bush, said that “[t]he evidence presented [during federal district court] hearings undermines considerably the confidence in the outcome of the trial court proceedings.”

Prosecutors claimed at trial that Jones had sexually assaulted and physically abused Rachel, including striking her in the abdomen and in the head with a pry bar that was found in his van. One day after the alleged assault, Rachel became unresponsive and Jones and his girlfriend took her to a local Pima County hospital, where she subsequently died. A medical examination attributed her death to complications from “a small bowel laceration due to blunt abdominal trauma.” Rachel also had bruises, a scalp laceration, and other injuries that the doctors attributed to sexual abuse. The prosecution argued to the jury that Rachel had sustained the injuries the day before her death, during a period of time she had spent alone with Jones.

Jones argued in federal court that his trial lawyers had been ineffective in failing to properly investigate the circumstances of Rachel's death. The federal district court conducted a seven-day evidentiary hearing in which Jones presented expert medical testimony that Rachel sustained the injuries that killed her at least two days before her death. The expert witnesses further testified that the state’s testimony concerning the timing of her injuries was false, that her abdominal and scalp injuries could not have been caused by the pry bar, and that counsel would have learned these facts had they adequately investigated the case. Jones’ trial attorneys testified that they “dropped the ball and didn’t follow up properly” on the evidence already available to them. After hearing the evidence, the district court ruled in 2018 that Jones had been provided ineffective representation at trial and in state post-conviction proceedings and granted him a new trial.

On appeal, the circuit panel agreed that Jones’ lawyers' failure to properly investigate the medical timeline was ineffective. While the expert testimony presented in the federal hearing “would not necessarily exonerate Jones,” Judge Clifton wrote, “there is a reasonable probability that the jury might have arrived at a different conclusion on the question of whether Jones had inflicted the injuries or knowingly failed to seek care.” The appeals court upheld the district court ruling overturning Jones’ convictions and ordered him released or retried on the murder, assault, and abuse charges. It also gave prosecutors the option of retrying Jones on a charge of deliberately failing to seek medical care for Rachel or resentencing him on a lesser charge of reckless failure to seek treatment.

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Tennessee Denies Clemency to Blind Prisoner, Permits His Execution Without Reviewing Juror’s Admission That She Was Biased Against Him

Posted: December 5, 2019

The state of Tennessee executed Lee Hall (pictured) on December 5, 2019, without providing him judicial review of a legal claim that led the state’s courts to overturn the conviction of a former death-row prisoner just weeks before.

Citing what he characterized as “extensive” judicial review spanning “the course of almost 30 years,” Tennessee Governor Bill Lee announced on December 4 that he had denied clemency to Hall, who became blind during his time on death row. That review, Governor Lee said, included “additional review and rulings by the Tennessee Supreme Court” in the past week. In those rulings, the Tennessee court refused to consider evidence that a juror in Hall’s case had failed to disclose that she had been raped and physically abused by her ex-husband and “hated” Hall, whose case involved domestic violence, as a result. Less than two weeks earlier, the Tennessee courts had granted a new trial to Hubert Glenn Sexton because a juror in his 2001 death-penalty trial had similarly failed to disclose her history of domestic abuse.

“The judgment and sentence stand based on [the court] rulings,” Governor Lee said, “and I will not intervene in this case.”

Hall’s case also attracted attention because of his physical disability and frailty. Hall “is blind and vulnerable,” his lawyers wrote in an unsuccessful motion to stay his execution, and “[t]he spectacle of his execution — guiding him to the gurney — would ‘offend humanity.’” Hall, they said, “bears no practical risk of harm to anyone” if imprisoned “for the remainder of his natural life.”

Hall was convicted and sentenced to death in 1992 for the murder of his estranged girlfriend. He lost his sight as a result of glaucoma, which his lawyers say was not properly treated while he was on death row. Hall would be the second blind person executed in the United States since capital punishment resumed in the United States in the 1970s. California executed Clarence Ray Allen, a 76-year-old blind man, in 2006. In 1988, Montana Governor Ted Schwinden commuted the death sentence of David Cameron Keith, in part because of his partial paralysis and blindness.

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Lawyers for Federal Death-Row Prisoner Say Schizophrenia, Brain Injuries, and Dementia Have Left Him Incompetent to Be Executed

Posted: December 4, 2019

Lawyers for federal death-row prisoner Wesley Purkey, who is scheduled to be executed on December 13, 2019, say he is incompetent to be executed because he has Alzheimer’s disease, schizophrenia, and traumatic brain injuries that "render him unable to rationally understand the reason the United States seeks to execute him.”

Purkey’s complaint, filed November 26, 2019 in federal district court in Washington, catalogues a lifelong history of trauma and mental illness that have contributed to his current condition. He experienced sexual, physical, and emotional abuse beginning at age 5, and began using alcohol and drugs as a child. He has been diagnosed with numerous mental illnesses, including Post-Traumatic Stress Disorder (PTSD), bipolar disorder, schizophrenia, and depression, and has multiple documented suicide attempts. He has also suffered several brain injuries resulting in damage to his frontal lobe that “limits his capacity to regulate his thoughts, emotion, and behavior, which has deteriorated significantly over time.” Now, his complaint says, he is also suffering from dementia as a result of Alzheimer’s disease.

In February 2019, the U.S. Supreme Court ruled that executing a person who, because of conditions such as mental illness or dementia, “cannot rationally understand his punishment, or the reason for it” constitutes cruel and unusual punishment. Purkey’s complaint presents reports from two medical experts that his dementia and other mental illnesses interfere with his cognitive functioning, including his ability to cooperate with his attorneys and to rationally understand why he is to be executed. “The underlying brain damage and mental illness he has are long-standing, irreversible, and will continue to deteriorate as his dementia progresses,” wrote Dr. Bhushan S. Agharkar. Purkey believes that there is a conspiracy against him and that he is being executed because his legal efforts to improve prison conditions have made him a “hassle” to the government.

“Wes Purkey is a severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease,” Rebecca Woodman, one of Mr. Purkey’s attorneys, said in a statement. “He has long accepted responsibility for the crime that put him on death row, but as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him. He believes his execution is part of a large-scale conspiracy against him by the federal government in retaliation for his frequent challenges to prison conditions, and he believes his own lawyers are working against him within this conspiracy.... The Eighth Amendment prohibits executing someone who, like Wes, lacks a rational understanding of the basis for his execution, and the court must not allow the execution to go forward unless and until it can confirm that Mr. Purkey has this understanding.”

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Family Members of Murder Victims Say Virginia’s Death Penalty ‘Fails Victims’ Families,’ Urge Legislature to Abolish It

Posted: December 2, 2019

Saying that “Virginia’s death penalty fails victims’ families,” 13 family members of Virginia homicide victims—including the daughter of a sheriff’s deputy whose assailant was executed—have called on Virginia legislators to abolish capital punishment.

The letter, released by the advocacy organization Virginians for Alternatives to the Death Penalty on November 21, 2019, calls Virginia’s death penalty system “inefficient and ineffective.” “Our direct experiences with the criminal justice system and struggling with grief have led us all to the same conclusion: Virginia’s death penalty fails victims’ families,” the letter states.

The family members argue criminal justice funding that is currently paying for “expensive capital murder trials could be better spent on much needed and currently underfunded support programs that help victims’ families with funeral costs, counseling, and other services.” Those trials and the resulting death-penalty appeals, they write, take much longer to resolve than a non-capital trial or a plea bargain, turning the defendant “into a celebrity while the victim’s family is traumatized again and again.”

The letter concludes, “[w]e call on the Virginia General Assembly to abolish the death penalty and replace it with life in prison without the possibility of parole.”

One of the letter’s signers is Rachel Sutphin (pictured), the daughter of Corporal Eric Sutphin, who was murdered by William Morva in 2006. At a November 21, 2019 press conference and in a November 22 op-ed in the Washington Post, she detailed her personal experience with Virginia’s capital punishment process. Sutphin sought clemency for her father’s killer prior to Morva’s execution in 2017 based upon concerns about Morva’s mental illness. As Morva’s execution date approached, she wrote to then-Governor Terry McAuliffe asking that his death sentence be commuted, but she did not receive any response.

In the op-ed, Sutphin wrote, “Instead of supporting my family and me when we needed it the most, the commonwealth devoted its resources to the trial and appeals that lasted more than 10 years. Year after year, I was retraumatized by the uncertainty and was repeatedly forced to relive the worst day of my life…. Morva’s execution brought no solace to me, but it strengthened my resolve that the death penalty needs to be abolished.”

“With the abolition of the penalty, families like mine will no longer suffer through the long process of mandatory death sentence appeals,” Sutphin said.

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The death penalty has now disappeared from whole regions of the country and continues to erode in others, according to the Death Penalty Information Center’s 2019 Year End Report. With New Hampshire’s repeal of its capital punishment statute in May, 21 states have now abolished the death penalty, with nine having done so since 2004. In March, California Governor Gavin Newsom imposed a moratorium on executions on the nation’s largest death row, joining governors in Oregon, Colorado, and Pennsylvania in formally halting executions in their states. Half of U.S. states have now either abolished the death penalty or halted executions. Executions and new death sentences remained near historic lows for the fifth consecutive year. For the first time since Gallup began asking the question in 1985, a majority of respondents (60%) believe that life in prison without parole is a better approach for punishing murder than the death penalty.

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Federal Appeals Court Hears Argument in Boston Marathon Bombing Case

Posted: December 13, 2019

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev (pictured) sought to overturn his conviction and federal death sentence on Thursday, arguing in a federal appeals court that he could not get a fair trial in a city still traumatized by the attack. During the two-hour argument before the U.S. Court of Appeals for the First Circuit in Boston on December 12, 2019, they also claimed Tsarnaev was denied an impartial jury when the trial court prohibited him from asking jurors about their exposure to pretrial publicity that may have affected their views and permitted jurors to serve whose pretrial social media posts expressed bias against him.

Tsarnaev’s appeal lawyer, Daniel Habib, argued to the appeals court that U.S. District Court Judge George A. O’Toole erred when he denied defense motion to move the trial out of Boston. “The marathon bombings targeted a beloved and iconic civil institution," he said. "It traumatized an entire community whose members mourned the victims, sheltered in their homes behind locked doors during the manhunt, celebrated Tsarnaev's capture in the streets and together began to heal in the Boston Strong movement.” In that environment, Habib argued, it was impossible to empanel an impartial jury. “This case should not have been tried in Boston,” he said.

News reports of the argument said the three-judge panel appeared skeptical of that claim, but seemed deeply troubled by the government’s efforts to prevent the defense from asking jurors about their experiences during the attack and by the empaneling of a jury forewoman who had called Tsarnaev a “piece of garbage.” Although the forewoman had tweeted or retweeted about the bombing 22 times — including commenting on the psychological impact of being at work while her family was “locked down” during the manhunt for Tsarnaev — she had concealed that information during jury selection when asked about her social media activity. A second juror had violated the court’s order to stay off social media, posting on Facebook that he was in the jury pool for the case. One friend urged him to “play the part so u get on the jury then send him to jail where he will be taken care of,” and another wrote, “if you’re really on jury duty, this guys [sic] got no shot in hell.” When the defense learned of those posts, Judge O’Toole refused to question the jurors about it and refused to remove them from the jury.

Judge William J. Kayatta, Jr. told federal prosecutor William Glaser, “You’ve got lots of qualified jurors, the government’s own data shows it …. [Y]ou just have to make sure you don’t pick the wrong ones, and that’s what it sounds like you did.”

Kayatta also expressed concern over the court’s refusal to permit questioning of the jurors about their exposure to pretrial publicity, as required by a 1960s First Circuit case, Patriarca v. United States. “You have a Patriarca problem,” Kayatta said, to which Glaser replied, “Yes, we do.” Judge Ojetta Rogeriee Thompson also questioned the trial court’s failure conduct a detailed inquiry into where the jurors got their information about Tsarnaev. “Why isn’t this the kind of case that would require probing that kind of information?,” she asked.

Kayatta described the government’s conduct in the case as “very puzzling.” “You have a defendant who is clearly guilty of this heinous crime and you then stretch and don’t try to follow the rules that we’ve laid down for a trial,” he said.

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Before Leaving Office, Kentucky Governor Matt Bevin Commutes the Sentences of Two Death-Row Prisoners

Posted: December 13, 2019

In his last series of acts before leaving office, outgoing Kentucky Governor Matt Bevin (pictured) has commuted the sentences of two of the state’s longest serving death-row prisoners to life with the possibility of parole. On Friday, December 6, 2019, Bevin commuted the death sentence of Gregory Wilson, whose trial proceedings had been described as a travesty of justice. Then on Monday, December 9 — the governor’s last day in office — he commuted Leif Halvorsen’s death sentence in response to a remarkable story of redemption.

Because of the age of the cases, both men became eligible for parole.

Wilson was convicted in 1988 in a trial one federal judge has described as “one of the worst examples I have ever seen of the unfairness and abysmal lawyering that pervade capital trials.” The court took more than a year to locate counsel to handle the case, after most of the lawyers in Northern Kentucky refused to work for the then-maximum state capital-representation fee of $2,500. Eventually, two lawyers agreed to take the case after the judge put a note on his courthouse door, saying: “PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN.”

One of the lawyers, John Foote, had never tried a felony case. The second, William Hagedorn, volunteered to be lead counsel for free. A semi-retired lawyer, Hagedorn had no office, no staff, no copy machine, and no law books, and listed the phone number of a local bar as his office number. The lawyers failed to interview and subpoena witnesses, investigate evidence collected by police, or contact family members who would have testified on behalf of sparing Wilson’s life. They presented no defense to the murder charges and no mitigating evidence in the penalty-phase of trial.

To compound matters, Wilson’s co-defendant, Brenda Humphrey — a former prostitute who testified against him — was having a sexual relationship with another judge in the circuit during the time of the trial. Humphrey, Wilson’s clemency petition pointed out, had “confessed to her sister that she, Brenda, was the one who killed the victim by slitting her throat.” Humphrey — who is white — was sentenced to a term of years, while Wilson — who is black —was sentenced to die.

Bevin's statement accompanying the commutation said that “Justice should be served on all sides. It was not.” The fact that the “actual admitted killer is now out of prison and [Mr. Wilson] is on death row would indicate that Mr. Wilson got the short end of the justice stick,” Bevin said. Wilson had been involved in a “brutal murder,” the Governor wrote, but “to say his legal defense was inadequate would be the understatement of the year.”

Wilson’s current lawyer, retired Chief Louisville Metro Public Defender Dan Goyette, praised Bevin for his “courage and sense of justice.” “[A]t long last,” Goyette said, "a shameful travesty of justice has finally been remedied.”

Bevin commuted Halvorsen’s sentence in the waning hours of his service as governor, after reviewing a clemency petition detailing what Halvorsen's lawyer, David M. Barron, described as a “unique and inspiring story of redemption.” The petition described how, in his 36 years on Kentucky’s death row, Halvorsen went from being a drug addict to a college graduate, completing two college degrees. The petition said that during that time, Halvorsen had raised money for underprivileged children, mentored at-risk youth, and was the only death-row prisoner the warden trusted to be part of a panel of prisoners who spoke with troubled students. Corrections personnel also credited Halvorsen with restoring calm in the prison, likely preventing attacks on corrections personnel and other prisoners.

Several of the students to whom Halvorsen had spoken wrote letters in support of his petition. One wrote: “Listening to your story made me realize that if I don’t change something about my life, I could end up somewhere close to where you are now.”

Halvorsen had previously written in a magazine story, “[m]y years in prison have been spent reclaiming my life from the ashes of its ruins.” Granting the commutation, Gov. Bevin said, “Leif has a powerful voice that needs to be heard by more people.”

Bevin texted Barron at 10:02 p.m., just under two hours before his term expired, to inform him of the commutation. “I’m very pleased and grateful that the governor has recognized Leif Halvorsen’s nearly four decades of efforts to demonstrate remorse, build reconciliation and attempt to use his life situation and story to save other lives and turn other lives around,” Barron said.

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Indiana Marks 10 Years Without an Execution

Posted: December 11, 2019

When Indiana executed Matthew Wrinkles on December 11, 2009, it was the twentieth execution carried out since the state reinstated the death penalty in May of 1973. It was also the last execution the state has carried out.

A decade later, Indiana has now joined the list of 32 states that no longer have the death penalty or have not executed anyone in at least 10 years. (Click here to enlarge map.) No Indiana jury has sentenced a defendant to die since 2013.

Although the United States has carried out more than 1,500 executions in the 42 years since executions resumed in the country in 1977, executions are rare or non-existent in most of the nation. 21 states and the District of Columbia have abolished capital punishment, and an additional 11 states, the federal government, and the U.S. military have not conducted any executions in at least 10 years. A DPIC review of U.S. execution data has found that 84% of U.S. counties have not had any executions in the past 50 years.

Indiana’s death-sentencing decline began in 1989, after nine years in which the state averaged more than six death sentences per year. Death sentences averaged 2.6 per year in the 1990s and 0.9 in the first decade of this century.

Huntington County Prosecutor Amy Richison, who chairs the Indiana Prosecuting Attorneys Council’s capital litigation committee, told the Fort Wayne Journal-Gazette in August 2019 that several practical considerations have contributed to the decline. First, she said, in 1993 the legislature made life without parole available as an alternative to the death penalty. The cost and the length of the trial and appeal process has also played a role, she said. In an interview with the Indianapolis Star, Indiana Chief Federal Defender Monica Foster said, “We’re just not putting new people on death row because juries are rejecting the death penalty when the government files it…. I don't think that there’s a real appetite for the death penalty in Indiana,” she said.

State Attorney General Curtis Hill and state corrections personnel attribute the pause in executions to the unavailability of execution drugs. In a statement to the Star, the Department of Correction wrote: “This is the result of business decisions by pharmaceutical suppliers who now decline purchase requests from the Indiana Department of Correction.” Hill blamed that on “a concerted effort, for a number of years, by certain groups to place pressures on pharmaceutical companies.” But in an interview with the Star, Death Penalty Information Center Executive Director Robert Dunham said, “Pharmaceutical companies uniformly have said they don't want their medicines used to execute prisoners. And that shouldn’t be surprising, because their corporate mission is to create medicines to save lives and improve lives and not to take lives.”

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Texas Set to Execute Travis Runnels Based on “Expert” Testimony of Prosecution Investigator Whose False Testimony Has Put 15 on Death Row

Posted: December 10, 2019

Texas is preparing to execute Travis Runnels (pictured) on December 11, 2019 based on the “expert” testimony of a prosecution investigator whose false depiction of prison conditions has helped to put fifteen defendants on the state’s death row. If Runnels is executed, he will be the third person put to death in Texas this year after former Texas Special Prosecution Unit criminal investigator, A.P. Merillat provided false testimony at their trials.

Runnels was convicted and sentenced to death for killing a prison employee while serving time for robbery. His defense lawyer presented no mitigating evidence to spare Runnels’ life. Under the Texas death-penalty statute, that meant that whether Runnels was spared or sentenced to die depended upon whether the prosecution proved that Runnels would pose a continuing threat of violence if sentenced to life without parole.

Merillat worked with Texas prosecutors as an expert witness on conditions of incarceration and the likelihood that defendants could commit future acts of violence in the conditions in which they would be imprisoned. In at least fifteen capital trials, including Runnels’, Merillat falsely asserted that prisoners convicted of capital murder would be “automatically” placed in mid-level security, where they would be in frequent contact with prison guards and non-violent offenders. He also falsely claimed that “If [a defendant] had prior convictions … the prison is not going to look at those previous convictions” in determining the type of facility in which the prisoner would be incarcerated. Runnels’ defense lawyer made no attempt to rebut Merillat’s false claims.

Runnels’ current lawyers have argued that Merillat’s testimony was especially prejudicial in his trial, given the nature of the charges against him. Frank Aubuchon, a 26-year employee of the Texas Department of Criminal Justice, which runs Texas’ prisons, told Texas Monthly, that a prisoner with Runnels’ record “would have gone into administrative segregation,” where he would be held in solitary confinement 22 hours per day with no contact with other prisoners and only minimal interaction with guards. “There is no way in God’s green earth” that Runnels would have been placed in the general prison population, Aubuchon said.

In his Texas Monthly interview, Aubuchon said “Merillat’s testimony was just bulls**t. What Merillat would do for years, when he got on the stand, I’ve seen it described by someone else as throwing a skunk in the jury box. His job was to scare the jury into killing the guy. And that’s what he did, for years.”

The Texas Court of Criminal Appeals has reversed two death sentences that were tainted by Merillat’s testimony, when defense lawyers raised the issue on the defendant’s initial appeal. However, it has allowed other cases in which Merillat testified to proceed to. Texas executed Billie Wayne Coble and Robert Sparks earlier in 2019, despite evidence that Merillat provided false or misleading testimony at their trials. The Texas Court of Criminal Appeals (CCA) has rejected Runnels’ appeal on procedural grounds, leaving the U.S. Supreme Court or executive clemency as the only means to stop his execution.

Mark Pickett, one of Runnels’ defense lawyers, said, “The state is not even denying that Merillat testified falsely. They aren’t denying it because they know they can’t deny it. The best thing they could come up with is that maybe Travis’ counsel should have found the claim a few years ago. People complain about criminals getting off on technicalities, but that’s what this is: the state put on a lying witness, whether they knew it or not. And now they want everyone to ignore it because it took people too long to notice what they did.”

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With Newly Discovered Evidence of Prosecutorial Misconduct, Alabama Death-Row Prisoner Hopeful to Win New Trial

Posted: December 20, 2019

Alabama sentenced Toforest Johnson to death, his lawyers and national experts say, because of prosecutorial misconduct, false eyewitness testimony, and inadequate representation. In an amicus brief filed in a Birmingham trial court on December 12, 2019, the Innocence Project says, “If ever a case bore the hallmarks of a wrongful conviction, Toforest Johnson’s is it.”

Johnson (pictured center) was convicted in 1999 of murdering Jefferson County Sheriff’s Deputy William Hardy, who was working off-duty as a security guard. His conviction rested on a stranger’s claim that, while she was eavesdropping on a prison phone call, she had heard a voice she said was Johnson confess. Records later revealed that, unknown to the jury, the witness had been paid $5,000 for her testimony. The prosecution was aware of the payment and the trial judge, Alfred Bahakel, whose brother Jerry was a Jefferson County sheriff’s deputy at the time Hardy was murdered, approved the payout. Neither disclosed the payment to the defense.

Over the course of four trials of Johnson and his co-defendant, Ardragus Ford, Birmingham prosecutors advanced at least five different, contradictory theories of the crime, many of them based on the shifting testimony of a 15-year-old witness, Yolanda Chambers. Chambers’ story changed numerous times after police repeatedly threatened her with imprisonment. Two other witnesses who refused to testify to the version of events police wanted were jailed.

“All of the evidence, including phone records and witnesses, clearly showed that [Chambers] couldn’t have witnessed the Hardy murder,” said Richard Jaffe, a defense attorney who represented Ford. “Her accusations should have been painfully and obviously false.” Ford ultimately was acquitted, but Johnson’s inexperienced court-appointed lawyer failed to marshal the available evidence and he was convicted and sentenced to death.

Johnson’s story is not new to Alabama or Birmingham. As Washington Post columnist, Radley Balko, pointed out in a September 2019 feature on Johnson’s case, four people wrongly convicted and sentenced to die during former Birmingham District Attorney David Barber’s 24-year tenure in office, and at least six who were wrongly convicted of murder, have already been exonerated. Johnson’s case, he wrote, bears striking similarities to the case of former death-row prisoner Montez Spradley, whose conviction for a 2004 murder was overturned in 2011 by the Alabama Court of Criminal Appeals.

No physical evidence linked either Johnson or Spradley to the crimes for which they were sentenced to death. In both cases, Balko wrote, “witnesses came forward with damning information in response to a reward. In both cases, it seems safe to say that a conviction wouldn’t have been possible without those witnesses. In both cases, the witnesses were paid, but the payments were never disclosed to the defense or the jury. In fact, in both cases, the judge signed off on said payments, yet neither judge bothered to notify defense counsel. … [And i]n the investigations of both Johnson and Spradley, law enforcement officials threatened witnesses with incarceration and the loss of custody of their children if they didn’t tell authorities the story they wanted to hear.”

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As Court Postpones Start of Parkland Mass-Shooting Trial, a Victim’s Father Says Prosecutors Should Drop the Death Penalty

Posted: December 19, 2019

As the capital punishment trial of accused Parkland, Florida school shooter Nikolas Cruz was postponed until at least the summer of 2020, the father of one of the victims of the attack has urged the prosecution to end the case now by dropping the death penalty.

Michael Schulman's son, Scott Beigel, was the track coach and a geography teacher at the Marjory Stoneman Douglas High School (pictured). He was one of 14 students and three teachers killed in the February 14, 2018 mass shooting at the school. In an op-ed in the South Florida Sun Sentinel, Schulman wrote that he believes the shooter deserves the death penalty, but “put[ting] the students and faculty through the trauma of reliving that horrible day is cruel and unnecessary.”

“‘Going for the death penalty,’” Schulman wrote, “will not bring our loved ones back to us. It will not make the physical scars of those wounded go away. In fact, what it will do is to continue the trauma and not allow the victims to heal and get closure.”

Cruz has offered to plead guilty and be sentenced to 34 consecutive life sentences without parole if prosecutors waive the death penalty. State Attorney Michael Satz, who called the 19-year-old Cruz “evil” and “worse than Ted Bundy,” has rejected the offer.

The court initially set a January 27, 2020 start date for the trial, less than two years after the February 14, 2018 shooting. But in a court hearing on December 19, 2019, Broward County Circuit Judge Elizabeth Scherer agreed to a defense request to push back the trial date. The court did not set a new date, but Judge Scherer told the lawyers for the prosecution and the defense that the case “is going to be tried this summer, at some point.”

Schulman’s November 29 op-ed noted that a trial would not inevitably result in Cruz’s execution, and that even after a trial, or as a result of court decisions on appeal, “the shooter could be sentenced to life without parole — the same sentence [he] has already agreed to accept in exchange for a guilty plea. Pursuing the death penalty,” Schulman wrote, “means subjecting ourselves to the trauma of a trial, reliving the murder of our loved ones for a result we could have obtained without that trauma.”

“[L]et the shooter rot in jail for the rest of his life,” he wrote. “Let us try and get some closure! Let us try and move forward with our lives.”

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James Dailey Faces Execution in Florida Based on Testimony of Serial Jailhouse Informant Police Called “Con Man Extraordinaire”

Posted: December 18, 2019

Paul Skalnik is a sex offender and con man whose jailhouse “snitch” testimony was used by Florida and Texas prosecutors to convict more than 37 defendants, including four who were sentenced to death. His testimony that James Dailey (pictured) allegedly confessed to the brutal 1985 stabbing and drowning death of 14-year-old Shelley Boggio contributed to Dailey’s conviction and death sentence, despite the prosecution’s admission that no “physical evidence,” “no fingerprints,” and “no hair or fibers” linked Dailey to the crime.

Whether Dailey—who has consistently maintained his innocence—lives or is executed may depend on whether he is able to get a federal court, which granted him a temporary stay of execution that expires on December 30, 2019, to review his claims of innocence.

A December 4, 2019 exposé by Pamela Colloff for ProPublica in partnership with the New York Times Magazine has shined a light on Skalnik’s career as a serial prison informant, often obtaining or overhearing “confessions” from pretrial detainees who said they never met or talked to him. In exchange for his testimony, he was regularly rewarded by prosecutors with favorable treatment on charges ranging from child molestation to grand theft to fraud, and neither his expectation of benefits nor the benefits themselves were disclosed to the defense.

Between 1983 and 1987, the Tampa Bay Times reported, Skalnik obtained “confessions” in eight first-degree murder cases during various prison stints in Pinellas, Florida, including four during one seven-month incarceration between January and June 1987. The arrest warrant for that incarceration for grand theft described Skalnik as a “Con-man extraordinaire.”

At the time of Boggio’s murder, Dailey lived in an extra room at the home his housemate Jack Pearcy shared with his girlfriend. Pearcy, who had a history of violence against women, had spent the afternoon and evening with Boggio. She was stabbed 31 times, and police found a knife belonging to Pearcy near her body. To divert blame from himself, Pearcy told police that Dailey had killed her.

Pearcy was tried for the crime first but received a life sentence. Prosecutors then sent investigators into the prison to try to obtain inculpatory information against Dailey, showing potential witnesses news stories containing details about the murder. Three jailhouse witnesses came forward claiming Dailey had confessed, and Pearcy—who later recanted—claimed Dailey was the killer. The informants falsely testified that they had not received any benefits or favorable treatment for their testimony. Each had in fact received reduced charges in exchange for their cooperation.

Skalnik provided the most damning testimony. Claiming to have seen Dailey “walking in the hallways, laughing and kidding with other inmates,” Skalnik said Dailey then “all of a sudden” gave a confession so disturbing that Skalnik found it “hard to comprehend and to accept.” Skalnik told the jury he had seen Dailey’s eyes and heard him describe how he stabbed Boggio. He testified that Dailey then said: “‘She is screaming, staring at me, and would not die.’” In her closing argument, the prosecutor cited Skalnik’s testimony more than a dozen times, assuring jurors that he was “honest” and “reliable.”

On April 20, 2017, Pearcy signed an affidavit stating, “James Dailey was not present when Shelly Boggio was killed. I alone am responsible for Shelly Boggio’s death.” On October 3, 2019, a Florida court declined to review Dailey’s claim that this constituted new evidence of innocence, saying he should have raised the issue sooner. Three weeks later—and two weeks before his scheduled November 7 execution—a federal district court granted Dailey a stay of execution to provide his new federal lawyers until December 30 to investigate and present evidence supporting his claims.

Official misconduct and false accusation are the leading causes of wrongful capital convictions. A DPIC review found that at least one of those factors has been present in at least 18 of the 29 cases since 1973 in which wrongfully convicted Florida death row prisoners have later been exonerated. An analysis by the Northwestern University School of Law Center on Wrongful Convictions of the first 111 death-row exonerations found that false “snitch testimony” had contributed to 45.9% of those wrongful capital convictions.

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DPIC 2019 Year End Report: Death Penalty Erodes Further As New Hampshire Abolishes and California Imposes Moratorium

Posted: December 17, 2019

The death penalty has now disappeared from whole regions of the country and continues to erode in others, according to the Death Penalty Information Center’s 2019 Year End Report. With New Hampshire’s repeal of its capital punishment statute in May, 21 states have now abolished the death penalty, with nine having done so since 2004. In March, California Governor Gavin Newsom imposed a moratorium on executions on the nation’s largest death row, joining governors in Oregon, Colorado, and Pennsylvania in formally halting executions in their states. Half of U.S. states have now either abolished the death penalty or halted executions. Executions and new death sentences remained near historic lows for the fifth consecutive year. For the first time since Gallup began asking the question in 1985, a majority of respondents (60%) believe that life in prison without parole is a better approach for punishing murder than the death penalty.

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Mississippi Judge Frees Curtis Flowers on Bail After Six Trials and 23 Years in Jail

Posted: December 16, 2019

A Mississippi trial judge has released Curtis Flowers on $250,000 bail, while prosecutors decide whether to attempt to try him a seventh time for a quadruple murder he has long maintained he did not commit. Flowers (pictured right, with defense co-counsel Henderson Hill) was freed on December 16, 2019, after an anonymous donor posted his bond. He had spent the last 23 years in jail, most of it on death row.

In July 1996, four employees of a white-owned furniture store in Winona, Mississippi were murdered. Fifth Circuit Court District Attorney Doug Evans tried Flowers for the murder of one of the victims in October 1997. The all-white jury sentenced Flowers — who is African American — to death. While Flowers' appeal of his conviction in the first trial was pending, Evans tried him a second time in March 1999 for the murder of the second victim. Just before that trial, Flowers’ parents’ house burned down. Shortly afterwards, his mother was told of a threat made by a white resident that, “If they let that n——- go, another house is going to burn.” This time, a jury of 11 white jurors and one black juror convicted Flowers and sentenced him to death.

Citing prosecutorial misconduct, the Mississippi Supreme Court overturned both of Flowers' convictions, reversing his first conviction in December 2000 and his second in 2003. Evans proceeded to try Flowers a third time in February 2004, again with a jury composed of 11 white jurors and one black juror. Flowers was again convicted and sentenced to death. The Mississippi Supreme Court then overturned his conviction a third time, this time citing Evans’ discriminatory use of jury strikes against African Americans.

Jurors deadlocked in Flowers’ fourth and fifth trials in November 2007 and September 2008, split along racial lines. Evans personally prosecuted both trials. The seven white jurors in the fourth trial and the nine white jurors in the fifth trial voted for death. The five black jurors in the fourth trial and three black jurors in the fifth trial voted for life. Only one black juror served on the sixth jury in 2010 — again prosecuted by Evans — and Flowers was sentenced to death a fourth time in that trial.

While it was working its way through the appeals process, the Flowers case became the subject of an American Public Media podcast, APM Reports’ In the Dark. The podcast uncovered new evidence questioning Flowers’ guilt, including evidence pointing to another suspect and a taped admission from jailhouse informant Odell Hallmon — the state's star witness who had testified that Flowers had confessed to the murders. In a portion of the podcast that Flowers’ current lawyer Rob McDuff played at the bail hearing, Hallman said: “He ain’t never tell me that. That was a lie. ... Everything was all make-believe on my part.”

APM also conducted a study of prosecutors’ exercise of discretionary jury strikes in 225 trials between 1992 and 2017 during Evans’ tenure as Fifth Circuit Court District Attorney. The data from more than 6,700 jurors called for jury service in the circuit court showed that Evans’ prosecutors excluded African Americans from jury service at nearly 4½ times the rate at which they struck white jurors.

On June 21, 2019, a 7-2 majority of the U.S. Supreme Court overturned Flowers’ conviction, again for Evans’ racially discriminatory selection practices. Evans’ “relentless, determined effort to rid the jury of black individuals,” Justice Brett Kavanaugh wrote, “strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

In November 2019, two civil rights organizations filed a class action lawsuit against Evans in federal court seeking an injunction to end to what they described as his office’s “policy, custom, and usage of racially discriminatory jury selection.” Flowers’ current trial lawyers moved to disqualify Evans from further participation in the case and to bar a seventh trial altogether. Evans’ office has not filed a response to the defense motions and Evans did not appear at the bail hearing.

Following Flowers’ release, McDuff, of the Mississippi Center for Justice, said the defense would "continue to pursue justice in this long and costly case …. At the beginning of the new year, we will move forward with our efforts to obtain a dismissal of the charges .... [T]here is no need to continue wasting taxpayer money on the misguided prosecution,” he said.

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Death Sentences Decline by More than Half in Decade of the 2010s

Posted: January 3, 2020

Death sentences imposed in the United States fell by more than half over the course of the 2010s, continuing a steep nationwide decline that has seen death sentences fall by more than 89% since the peak death sentencing years of the mid 1990s. Fewer death sentences were imposed in the second half of the 2010s than in any other five-year period since capital punishment resumed in the United States in 1973. [Click here to enlarge image]

A Death Penalty Information Center analysis of sentencing data found that three-, five-, and ten-year death sentencing rates all fell compared to their corresponding prior time periods. The United States imposed an average of 38.7 new death sentences between 2017–2019, which marked a 24.2% decline from the average of 51.0 per year imposed across the country in the preceding three-year period from 2014–2016. The five-year annual average of 39.2 new death sentences imposed between 2015-2019 was 55.1% below the average of 87.4 new death sentences imposed per year from 2010–2014, a decline of more than half. Similarly, the ten-year death-sentencing numbers reflected a decline by more than half, with the annual average of 63.3 new death sentences imposed per year over the course of the 2010s falling 56.6% below the average of 145.8 new death sentences per year in the first decade of the 21^st century.

The actual number of death sentences imposed starkly demonstrated the magnitude of capital punishment’s decline. There were 825 fewer death sentences in the decade of the 2010s than in the decade of the 2000s, a drop that was 192 greater than the number of new death sentences actually imposed. The decline reached historical lows in the second half of the decade, when each year produced fewer than fifty new death sentences. The only other year in which death sentences were that low was in 1973, the year after the U.S. Supreme Court had struck down existing death-penalty statutes and before many states had enacted new capital punishment laws.

The second half of the 2010s produced 635 fewer new death sentences per year than the years 2000-2004, a decline of 76.4%, or 127 death sentences per year. The nation imposed 241 fewer new death sentences in 2015-2019 than in first half of the 2010s, a decline of 48.2 new death sentences per year.

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Report Addresses Death-Row Family Members’ Barriers to Mental Health Care

Posted: January 2, 2020

Families who have a loved one on death row, or who have experienced the execution of a loved one, suffer a variety of adverse mental health effects, including depression, anxiety, and Post-Traumatic Stress Disorder (PTSD), according to a new report by the Texas After Violence Project (TAVP). The report, Nobody to Talk to, describes the mental health challenges faced by family members of death row prisoners and the special difficulties those family members experience in seeking mental health care that addresses their situation.

TAVP found that death row families faced unique hardships in obtaining mental health treatment resulting from the stigma of being connected to a death-row prisoner and a lack of understanding of their experiences. The report summarizes the current state of research on the psychological effects of having a family member sentenced to death. Not surprisingly, that research documented high rates of depression and symptoms of PTSD among family members of capital defendants, death-row prisoners, and people who had been executed.

TAVP reported that families affected by the death penalty face many of the same challenges experienced by other distinctive groups who have been traumatized by their exposure to violence, but also face the social stigma and guilt-by-association from having a loved one charged with or convicted of capital murder. “Researchers and advocates look both at how the experience of these families is like the experience of other victims of violent loss (particularly family members of murder victims) and how it is distinct from other experiences of loss because of the particular characteristics of the death penalty,” the report explains.

Quoting a 1983 study by Michael Radelet, the report notes that, “in contrast to others facing loss, these families must know that the death of their loved one is actively desired by others.” Death-row families also share many characteristics with other family members of prisoners, including family separation, navigating the criminal justice system, and dealing with prison visits and phone calls, but with the added difficulty of the looming death of their loved one. Because of the “combination of knowledge and uncertainty inherent in the often-repeated cycle of death sentence, litigation, and temporary reprieve means that the family members experience ‘anticipatory grief’ over an extended period of time... and the emotional whiplash of hopes raised and dashed and then raised again, sometimes several times in succession.”

Family members of death row prisoners face the same common obstacles to obtaining mental health care faced by the general population, including financial barriers and negative views of psychological medication. However, death-row family members also reported hesitation or ambivalence about seeking help for themselves when their relative on death row was in greater need of help, and also worried that providers would not understand their situation, would not be familiar with the death-penalty system, or would judge them or their family.

To address these special needs, the report recommends that providers of mental health services recognize “families of persons sentenced to death or executed” as a distinct trauma-affected group and offers suggestions to help clinicians better understand the challenges these families face. “Clinicians cannot respond optimally to a population whose existence they have not even considered, and death row family members are understandably wary of seeking help from mental health professionals who are wholly unfamiliar with their situation and whom they have good reason (based on their experiences with others outside their families) to fear might be judgmental or dismissive or at least too overwhelmed by the families’ stories to be of help,” the report states.

TAVP also recommended that clinicians be provided specialized training in working with death row families, just as current trainings focus on the needs of domestic violence survivors or other groups in need of specialized care. Clinicians who undergo such training or are interested in working with the population of death row family members can identify themselves to groups that work with that population. TAVP notes that it plans to develop training materials and create a referral list of providers who welcome family members of death row prisoners.

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Law Review: New Article Highlights Decline of Judicial Death Sentences

Posted: December 30, 2019

At least 99 men and one woman are on death row in eight U.S. states, condemned to death by judges without the prior authorization of a jury, according to a 2019 study by researchers Michael Radelet and Ben Cohen (pictured) published in the Annual Review of Law and Social Science. Another 18 prisoners sentenced to death since the resumption of capital punishment in the U.S. in the 1970s, the study shows, have been executed after judges disregarded or overrode jury votes in favor of life.

Radelet and Cohen argue that death sentences imposed “without the protections of the right to a jury determination of sentence … violate[ ] both the original purpose of the constitutional protection and the evolving standards of decency” that govern the constitutionality of death-penalty practices today. These sentences, the authors write, are the product “of the constitutional blunder of trial judges instead of juries deciding who lives and who dies.”

Radelet and Cohen’s data “show that eight states have permitted or required some form of judge sentencing in capital cases since the dawn of the modern era of the death penalty in 1972.” However, judge-sentencing in capital cases has sharply declined this century, as a result of state and federal constitutional rulings and the actions of state legislatures.

In 2002, the U.S. Supreme Court ruled in Ring v. Arizona that the Sixth Amendment afforded a capital defendant the right to a jury determination of all facts necessary to impose a death sentence. In 2016, the Court struck down Florida’s death-penalty statute in Hurst v. Florida for violating that constitutional guarantee. Also in 2016, the Delaware Supreme Court, in Rauf v. State, declared its judicial sentencing statute unconstitutional. However, while the Delaware court ruled that Rauf applied to all cases in the state in which a death sentence had been imposed, the state and federal courts in Arizona and Florida have refused to apply Ring or Hurst to cases that had already completed the direct appeal stage of judicial review by the time Ring was decided.

Prior to Hurst, three states — Alabama, Delaware, and Florida — permitted judges to impose death sentences based upon non-unanimous jury recommendations for death and to override jury recommendations for life. Delaware and Florida have since discontinued those practices and Alabama has repealed the judicial override portion of its death-penalty statute. Indiana and Missouri direct the trial court to independently determine the sentence if the jury fails to reach a unanimous sentencing verdict.

Radelet, a professor in the University of Colorado, Boulder’s Department of Sociology and Institute of Behavioral Science and a noted death-penalty scholar, and Cohen, a capital litigator with the New Orleans-based Promise of Justice Initiative, have been tracking judicial sentencing in death-penalty cases for more than a decade. In 2017, they reported that Florida judges had imposed at least 134 death sentences after juries had returned non-unanimous sentencing recommendations in cases that were tried after Ring was decided or that were still pending on appeal when Ring was decided. For this study, they identified cases in which states permitted judges to impose the death penalty without a jury recommendation for death or permitted judges to override jury recommendations that a life sentence be imposed.

As of April 2019, they said, approximately 100 cases remained in which defendants who had not waived their right to a jury had been sentenced to death by judges. The most (40 cases) were Arizona cases that predated Ring, followed by 33 cases of judicial override in Alabama, and 11 death sentences imposed under Nebraska’s judge-only sentencing statute. They report that one woman, Robin Row, was sentenced to death in 1993 under Idaho’s pre-Ring judicial sentencing procedures. Alabama has executed 11 men whom judges sentenced to death despite jury recommendations for life, followed by Florida with four jury-override executions. Missouri has executed three prisoners who were sentenced to death in judge-only sentences.

Regarding these cases, Radelet and Cohen write, “[b]y any measure, the judge-imposed sentences … stem from an anachronistic vestigial process from a period from which the country has evolved.” The “most significant question remaining,” they write, “is of retroactivity” and “whether the evolving standards of decency prohibit the execution of judge-imposed death sentences.”

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New Podcast: The DPIC 2019 Year End Report

Posted: December 27, 2019

In the December 2019 edition of the Discussions with DPIC podcast, Death Penalty Information Center Executive Director Robert Dunham and Managing Director Anne Holsinger discuss DPIC’s 2019 Year End Report. The podcast explores the major themes presented in the year’s death-penalty news and developments, including innocence, declining use of capital punishment, and systemic problems revealed by the new death sentences and executions in 2019.

The two major themes of the 2019 report, Dunham said, were “that the death penalty appears to be disappearing in some parts of the country and eroding in others” and “the continued unreliability of the death penalty” in the cases in which it was imposed or carried out. He tells the stories of some of the year’s notable cases, including Rodney Reed and Domineque Ray. The conversation also covers some of the long-term trends in capital punishment, especially the sustained decline in new death sentences and executions.

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Billy Joe Wardlow Faces Execution in Texas Based on False Evidence of Future Dangerousness

Posted: December 26, 2019

Billy Joe Wardlow (pictured) was 18 years old when he killed 82-year-old Carl Cole during a botched attempt to steal Cole’s car so that Wardlow and his girlfriend could pursue their fantasy of running away from their abusive homes in Carson, Texas to start a new life in Montana. Wardlow, who had no prior history of violence, has regretted his action ever since. In the cover story for the Winter 2020 issue of the magazine The American Scholar, Wardlow told veteran journalist and legal commentator Lincoln Caplan, “it was really, really, really stupid.”

The troubled teen of a brutally abusive mother had attempted suicide three times between turning age 15 and killing Cole. Just weeks before the murder, Caplan says, Wardlaw had tried to drive a stolen truck off a bridge. In the county jail awaiting trial, Wardlow at the suggestion of the sheriff wrote a dramatic confession that the prosecution used against him at trial: “Being younger and stronger, I pushed him off and shot him right between the eyes. Just because he pissed me off,” it said. While in custody, Wardlow attempted three more times to kill himself.

The Texas jury that sentenced Wardlow to death in 1995 heard nothing about his traumatic upbringing and emotional troubles. Instead, in a practice repeated in numerous Texas capital cases, it was provided false testimony by a prosecution expert that Wardlow “would constitute a continuing threat to society” if they spared him the death penalty and sentenced him to life. Wardlow currently faces an April 29, 2020 execution date. But—after interviewing Wardlow’s current lawyers and other Texas death row prisoners about the person Wardlow has become almost 25 years later and exploring the false testimony concerning his supposed future dangerousness—Caplan’s in-depth article argues that Wardlow should not be executed.

With defense counsel who presented virtually no case for life, Wardlow’s sentence depended upon whether the prosecution proved the state-law requirement that he posed a continuing threat to society. To prove that, prosecutors presented uncontested testimony from Royce Smithey, an investigator for the Texas Special Prosecution Unit, which prosecutes felonies committed within Texas prisons. Smithey falsely testified that Wardlow would be placed in the general prison population if the jury sentenced him to life, where his presence would put prison guards and others at risk.

Wardlow’s current lawyers have filed a petition that is currently pending before the Texas Court of Criminal Appeals arguing that Wardlow’s death sentence was obtained through false testimony and that the Texas death-penalty statute is unconstitutional because “[t]he prediction of future dangerousness called for by the Texas capital sentencing statute cannot reliably be made for a capital defendant under 21 years old.” They presented a statement from Frank G. Aubuchon, a former Texas Department of Criminal Justice [TDCJ] correctional officer and prison administrator, who said that Smithey’s testimony contained “multiple falsehoods [that] served to mislead the jury into believing that TDCJ would be completely unprepared to imprison Mr. Wardlow in a secure environment unless he received a death sentence. Based on my decades of experience as a TDCJ corrections officer, administrator, and prison classifications expert" Aubuchon wrote, " I can say that this is categorically false.”

Wardlow maintains that he did not intend to kill Cole, but shot him in the head as the two struggled for Wardlow’s gun. Recounting the incident, a weeping Wardlow told Caplan, “you put a gun in someone’s face, they’re going to be terrified. So, really, two terrified people fighting over a gun is what it was. A terrified old man and a terrified kid. And the old man was winning. And when he started to take the gun out of my hand, I can remember I put my finger into the trigger, and pulled the trigger.”

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Political Application of Capital Punishment on Prominent Display in Pakistan and Middle East

Posted: December 24, 2019

The use of the death penalty as a political weapon was on display in late December 2019 in an extraordinary series of four unrelated cases in Pakistan and the Middle East.

In Pakistan, a special tribunal tried and convicted the nation’s former leader, General Pervez Musharraf (pictured), of high treason and sentenced him to death. Days later, a Pakistani civilian court convicted a Muslim professor of blasphemy and sentenced him to death. In Riyadh, Saudi Arabia, after a secret trial that lasted nearly a year, a criminal court sentenced five men to death for the murder of dissident journalist Jamal Khashoggi, but acquitted high-ranking officials who reportedly had close ties to the Crown. And in Bahrain, a political protester who said he and a co-defendant were tortured into falsely confessing to murder, warned that the Arab state intended to execute them under the cover of Christmas, while the attention of the western nations is focused on the holidays.

Musharraf, who is in self-imposed exile in Dubai, was tried in absentia for high treason and for subverting the country’s constitution. He was convicted and sentenced to death on December 17 by a 2-1 vote of a special court appointed by the Supreme Court. The death verdict has been described as a symbolic warning to the military about the primacy of civilian rule in Pakistan. The nation has had a history of military coups, but Musharraf was the first military dictator to be charged with high treason.

On December 21, a Pakistani civil court convicted Junaid Hafeez of blasphemy and sentenced him to death for allegedly having made verbal statements and Facebook posts in 2013 that insulted the Prophet Muhammad and the Quran. Junaid Hafeez, a lecturer at the Bahauddin Zakariya University in central Pakistan, had been held in solitary confinement since 2014, after his lawyer, a prominent rights activist, was murdered. Because of security concerns, Hafeez’s trial was conducted within the prison.

Al Jazeera reports that “at least 75 people have been killed in connection with blasphemy accusations in Pakistan since 1990, … includ[ing] those accused of the crime, people acquitted by the courts, their lawyers, family members and judges connected to their cases.” Amnesty International blasted the trial and verdict as “a travesty.” Hafeez’s current lawyer, who spoke anonymously out of safety concerns, and the Hafeez family said in a statement that the government’s failure to apprehend the murderers of his prior lawyer “signaled impunity for other would-be vigilantes. … Could any judge in such circumstances take the risk of doing justice?,” they said.

In Saudi Arabia, a criminal court on December 23 sentenced five men to death and released two others in the murder of journalist Jamal Khashoggi in the Saudi Consulate in Istanbul, Turkey. Deputy intelligence chief Ahmed al-Assiri, who prosecutors said had overseen Khashoggi’s murder, was acquitted and charges were dropped against Saud al-Qahtani, an adviser to Crown Prince Mohammed bin Salman. Khashoggi, a columnist for the Washington Post, had been highly critical of the Crown Prince, and the CIA had concluded in 2018 that bin Salman had ordered his assassination. Rights activists said the secret trial proceedings whitewashed the Saudi royal family’s possible involvement in the killing.

Also on December 23, Mohammed Ramadah, a condemned political prisoner in Bahrain, warned that the country intended to execute him and his co-defendant, Hussein Moosa, on Christmas, hoping that the world’s attention to the country’s human rights abuses would be diverted by the holiday. Human rights groups have said that Ramadhan's and Moosa's convictions in 2014 for planting a bomb that killed a policeman were the product of torture and the denial of legal representation.

Maya Foa, director of the human rights organization Reprieve, said "We fear the worst, because this isn't the first time the Bahraini authorities have cynically scheduled a death penalty verdict on Christmas Day.... Handing down the judgement while attention is elsewhere is a calculated attempt to avoid scrutiny."

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DPIC Analysis: Death Penalty Erosion Spreads Across the Western United States in 2019

Posted: December 23, 2019

In a year of declining death-penalty usage across the United States, nowhere was the erosion of capital punishment as sustained and pronounced in 2019 as it was in the western United States. Continuing a wave of momentum from Washington’s judicial abolition of capital punishment in October 2018, one state halted executions and dismantled its death chamber, another cleared its death row, two cut back on the circumstances in which the death penalty could be sought and imposed, and the entire region set record lows for new death sentences and executions.

Calling capital punishment in California — the nation’s largest death-penalty state — “by all measures, a failure,” Governor Gavin Newsom announced in March 2019 that he was imposing a moratorium on executions and closing down its execution chamber. Newsom said the state’s death penalty “has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”

California was the fourth western state in less than a decade in which governors had halted executions, and the move set aside the threat of imminent execution for more than 700 death-row prisoners, comprising more than a quarter of the entire U.S. death-row population. California joined fellow western states Colorado, Oregon, and Washington in putting executions on hold, and Newsom expressed hope that the moratorium would be an interim step towards the goal of repealing the state’s death penalty.

Historically, the West has accounted for fewer than 6% of executions in the United States since 1976. But executions have halted completely in the region in recent years. 2019 marked the fifth consecutive year with no executions west of Texas. Alaska, Hawaii, and New Mexico have no death penalty. California, Colorado, Montana, Nevada, and Oregon have not executed anyone in more than a decade, and will be joined by Utah in June 2020. New death sentences are also at historic lows for the region. The four new death sentences imposed in 2019 were the fewest in the West since California reinstated its death penalty in 1977, and fell by half from the prior record low set in 2018. Only three counties west of Texas sentenced anyone to death. (Click here to enlarge map.)

Courts and legislatures across the west also chipped away at the region’s use of capital punishment.

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Colorado, Virginia State Senates Move to Abolish, Reform Death Penalty

Posted: January 31, 2020

In legislative votes 1,600 miles apart on January 30, 2020, state senates in Colorado and Virginia took historic steps toward abolishing or reforming their state death-penalty systems.

After hours of emotional debate on the floor of the state senate in Denver, Colorado senators voted 19-15 to repeal the state’s death-penalty statute. Hours earlier, in Richmond, the Virginia state senate passed a bill that would bar the death penalty for individuals who were suffering from severe mental illness at the time of the crime. The mental illness bill passed with strong bipartisan support by a vote of 32-7.

The Colorado vote on the senate’s “second consideration” of the bill was considered the most critical procedural step in legislative efforts to repeal the death penalty. The bill, which would abolish capital punishment for all cases brought to trial on or after July 1, 2020, still requires formal passage on third consideration January 31 before it can advance to the state House of Representatives. However, newspaper reports and the bill’s supporters say that step is largely a formality.

The Virginia vote marked the second time the senate had passed what would be a first-in-the-nation legislative prohibition on the use of the death penalty against persons with severe mental illness. On January 27, 2019, the senate passed similar legislation by a 23-17 vote but that bill died without a vote in a House criminal justice subcommittee. This year, a majority of Republican senators (11 of 19), including five who had opposed the bill in 2019, joined all 21 senate Democrats in supporting the proposal.

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Charleston Church Shooter Appeals Federal Death Sentence Amid Claims of Mental Incompetence

Posted: January 30, 2020

Lawyers for white supremacist Dylann Roof (pictured) have asked a federal appeals court to vacate his federal convictions and death sentences for the racially-motivated murders of nine worshipers at an historic African-American church in Charleston, South Carolina in June 2015. Roof’s lawyers raised more than a dozen claims of constitutional and legal error in a 321-page legal brief filed in the United States Court of Appeals for the Fourth Circuit on January 28, 2020.

Issues related to the handling of Roof’s competency to stand trial and the court’s decision to allow him to represent himself in the penalty stage of the case dominated the brief. Citing evidence of severe mental illness the jury never heard and misrepresentations of Roof’s mental health by both Roof and the prosecution, defense lawyers asserted that the Court “can have no confidence in the jury’s verdict” in the case.

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Georgia Executes Donnie Lance Over Protests of Victim’s Children After Denying DNA Testing

Posted: January 29, 2020

Georgia executed Donnie Lance on January 29, 2020 after his requests for DNA testing and a plea for clemency supported by the children he and murder victim Joy Lance shared were denied.

Lance was convicted in 1999 of murdering his ex-wife, Joy Lance, and her boyfriend, Dwight Wood. He has maintained his innocence in the killings and sought DNA testing of evidence from the crime scene. His two adult children, Jessie Lance and Stephanie Cape, not only supported that request, but also asked the Georgia Board of Pardons and Paroles to grant clemency. In a letter to the Board, they wrote, “We have spent our whole lives with this huge gaping hole in our hearts, but at least we’ve had dad at our sides. It’s almost impossible to imagine that it could get worse.”

In addition to the family’s plea, Lance’s clemency petition and appeals also highlighted flaws in the legal process that led to his conviction. According to a motion his attorneys filed in the Georgia Supreme Court, prosecutors illegally selected friends and allies for the grand jury that indicted Lance, rather than randomly selecting members as required by law. The motion argued that “Mr. Lance was deprived of a fair and impartial grand jury. … There was no reason for Mr. Lance to suspect that this conduct had occurred or to seek the specific evidence necessary to show the impact of this ‘packing’ on the grand jury’s composition.”

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Lawsuit Seeks DNA and Fingerprint Testing that Could Show Arkansas Executed an Innocent Man

Posted: January 29, 2020

In its unprecedented rush to execute eight prisoners over an eleven-day period in April 2017, Arkansas may have executed an innocent man. Civil rights and legal reform organizations filed a state Freedom of Information Act lawsuit on January 23, 2020 on behalf of the brother of Ledell Lee (pictured), a man Arkansas executed on April 20, 2017. The lawsuit argues that DNA and fingerprint evidence that courts blocked the defense from testing in the days leading up to his execution can prove what Lee had argued since the time of his arrest — that he was not involved in the murder that sent him to death row.

The lawsuit, filed by Patricia Young with the assistance of a coalition of legal organizations including the national American Civil Liberties Union, its Arkansas chapter, and the Innocence Project, seeks testing of biological and physical evidence that it says could prove Lee’s innocence. Fingerprints from the crime scene did not match Lee, but Arkansas has never submitted them to a national database to determine whether they might match someone else. Hair and fingernail scrapings from the crime scene are suitable for DNA testing, but also have not been tested.

“My family has been unable to rest for the last two and a half years, knowing that my brother was murdered by the state of Arkansas for a crime we believe he did not commit,” said Young. “What happened to Debra Reese is horrible, and we keep her family in our prayers. But I was with Ledell the day this murder happened, and I do not see how he could have done this. If Ledell is innocent, then the person who did this has never been caught. All we want is to finally learn the truth.”

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Fall 2019 “Death Row USA” Shows Continuing Death-Row Decline

Posted: January 28, 2020

Death row and the number of prisoners facing active death sentences in the U.S. continue to decline, according to the latest quarterly survey of death row by the NAACP Legal Defense and Educational Fund (LDF).

The Fall 2019 edition of Death Row USA, released earlier this month, reports that 2,639 people were on death row or facing capital resentencing across the United States as of October 1, 2019. That number represents a 3.0% drop from last year’s October report and a 27% decline from the height of the U.S. death-row population at the turn of the century.

The number of U.S. prisoners facing active death sentences also continued to decline. A DPIC analysis of LDF’s death-row count found 232 individuals whose convictions or death sentences had been reversed who were awaiting retrial, resentencing, or completion of the appeals process. That left 2,407 prisoners facing active death sentences, 72 fewer (a decrease of 2.9%) than the 2,479 active death sentences at the same time in 2018.

LDF reports that 34.6% of those on death row or facing capital resentencing in the U.S. (913 prisoners) were in states with moratoria on executions. Subtracting the cases in moratorium states and the cases in which convictions or death sentences have been overturned, LDF found that there were 1545 currently enforceable death sentences in the country. Nearly 42% of the nation’s death-row prisoners do not have active and enforceable death sentences.

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Man Sentenced to Death By Juror Who Questioned if ‘Black People Even Have Souls’ Dies on Georgia’s Death Row

Posted: January 27, 2020

Keith Tharpe — an African American sentenced to death 29 years ago by a jury that included a member who called him the “N-word” and doubted whether “Black people even have souls”— died on Georgia's death row January 24, 2020. He was 61 years old. In a press statement, his lawyers from the Georgia Death Penalty Resource Center said he had been suffering from cancer and likely died of complications from the disease.

Tharpe challenged his death sentence after Barney Gattie, a juror in his case, told defense investigators and then signed an affidavit saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” Gattie’s affidavit also said “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks,” but denied that race had influenced his own vote.

Following Tharpe’s death, Marcia Widder, one of the Georgia Resource Center lawyers who represented Tharpe in his appeals, said that “the courts’ failure to confront the racism tainting Mr. Tharpe’s death sentence remains a stain on the judicial system and calls for increased efforts to eradicate the poison of racism in our criminal courts.”

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Florida Supreme Court Retracts Jury Unanimity Requirement, Reinstates Non-Unanimous Death Sentence

Posted: January 24, 2020

In a dramatic reversal made possible by changes in court personnel, the Florida Supreme Court has repudiated its prior decisions requiring that capital sentencing juries unanimously agree to the death penalty before a trial judge may sentence a defendant to death. “Our court … got it wrong,” the justices said, when it ruled in 2016 that death sentences imposed after non-unanimous jury recommendations for death violated the state and federal constitutions.

The court’s January 23, 2020 decision in State v. Poole reinstated a death sentence imposed on Mark Anthony Poole in 2011 after a non-unanimous jury had voted 11-1 to recommend the death penalty. Applying the court’s 2016 ruling in Hurst v. State, a Polk County trial court had overturned his death sentence and ordered a new sentencing hearing.

In its unsigned opinion, the court majority said that the Hurstdecision had misunderstood the U.S. Supreme Court’s case decisions that had granted capital defendants the right to have a jury decide all facts necessary to impose a death sentence. The Poole court distinguished between aggravating circumstances — facts that make a defendant “eligible” to be sentenced to death — which must be found by the jury, and the “selection” of the ultimate sentence after the weighing of aggravating and mitigating circumstances. The latter, the court said, involved judgments of mercy that could not be considered a factual determination and did not require a unanimous jury vote.

Poole’s appeal lawyer, Julius Chen, called the court’s retroactive application of the change in the law “nothing short of astonishing” and said the defense was “carefully exploring avenues for further review” of the case. The ruling could reinstate the death sentences of dozens of Florida prisoners who, under the prior court decisions, were entitled to new sentencing hearings. Most of the resentencings that have already taken place have resulted in life sentences.

Justice Jorge Labarga issued a strong dissent, writing that the court “has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida.” “The majority,” he said, “returns Florida to its status as an absolute outlier among the jurisdictions in this country that utilize the death penalty. The majority gives the green light to return to a practice that is not only inconsistent with laws of all but one of the 29 states that retain the death penalty, but inconsistent with the law governing the federal death penalty.”

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A ‘Perfect Storm’ of Injustice—Death-Row Prisoner Christopher Williams Exonerated in Philadelphia Murder Case

Posted: January 23, 2020

In a case prosecutors now describe as a “perfect storm” of injustice, Pennsylvania death-row prisoner Christopher Williams (pictured) and his co-defendant Theophalis Wilson have been exonerated of a 1989 triple murder in North Philadelphia.

On December 23, 2019, conceding that later-fired prosecutors had withheld “a plethora of significant material, exculpatory evidence,” the Philadelphia District Attorney’s Office dropped the charges against Williams. Less than a month later, on January 21, 2020, prosecutors told a Philadelphia trial court that Wilson had been unconstitutionally convicted and withdrew all charges against him. Wilson, who was 17 years old at the time of the murders, had been sentenced to life without parole.

Both men had been wrongfully convicted based on the perjured testimony of a Commonwealth informant and the deliberate suppression of exculpatory evidence by former Philadelphia prosecutors. The state’s key witness was James White, a confessed murderer who testified pursuant to a deal that spared him capital prosecution for six separate murders. White later recanted his testimony, saying that prosecutors had met with him several times before Williams’ and Wilson’s trials and provided him with fabricated information for his testimony.

The trial court reversed Williams’ conviction in December 2013, finding that his trial lawyer had failed to investigate the crime scene and challenge White’s “eyewitness” account of the crime. The trial court said expert forensic and medical testimony would have shown that White’s version of how the murder occurred was false and physically impossible. On appeal, the Pennsylvania Supreme Court wrote that “[t]his testimony, if believed by the jury, coupled with the other evidence impeaching White’s credibility, would likely have changed the jury’s mind and resulted in Williams’ acquittal of the three murders.”

While Williams’ case was awaiting retrial, the Philadelphia District Attorney’s Office Conviction Integrity Unit (CIU) began investigating Wilson’s case, later expanding its review to include Williams’ trial. In 2019, the CIU provided defense lawyers more than 40,000 pages of documents in the case. In its motion to drop the charges against Williams, the CIU wrote that its file review “disclosed evidence that contradicted White's account; impeached other witnesses; inculpated other specific individuals; and indicated that the victims in this case were caught in an ongoing dispute between two extremely violent gangs, either of which may have been responsible for their deaths.”

In early December 2019, Patricia Cummings, chief of the CIU, personally interviewed White, who, she said, continued to disavow his trial testimony. Her motion to drop the case against Williams said that “the Commonwealth no longer credits White's trial testimony and account of the murders with which Williams is charged.” Because of that, she wrote, “it cannot and will not offer White's prior testimony and statements as evidence in any future proceedings against Williams.” With “no other competent evidence of Williams’ guilt,” there was no basis to continue to prosecute him, the motion said.

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Corrections Personnel, Victims’ Families, Jurors Urge Clemency for Tennessee Death-Row “Lifesaver”

Posted: January 22, 2020

Saying that Nicholas Sutton “has gone from a life-taker to a life-saver,” lawyers for the Tennessee death-row prisoner filed an application for clemency with Governor Bill Lee on January 14, 2020. The clemency application, which requests that Lee commute Sutton’s sentence to life without parole, contained affidavits of support from seven Tennessee correctional officials, members of the victims’ families, and five of the jurors in the case.

Sutton currently faces a February 20, 2020 execution date for a murder committed in his early twenties while he was in prison on another murder charge.

The clemency application provides details from prison officials of how Sutton has matured and changed during his time on death row and how he has repeatedly intervened in dangerous situations to protect corrections personnel and other prisoners. “Five Tennesseans, including three prison staff members, owe their lives to him,” the petition said. The petition backs up that claim with statements from two corrections officers who say that Sutton saved their lives, and an earlier statement by a since-deceased Sheriff’s Deputy describing how Sutton protected him from an attack by another prisoner.

An affidavit from former corrections officer Tony Eden detailed an incident in which five armed prisoners attacked him and attempted to take him hostage during a 1985 prison riot. “I owe my life to Nick Sutton,” he said. “Nick and another inmate confronted them, physically removed me from the situation and escorted me to the safety of the trap gate in another building…. Nick risked his safety and well-being in order to save me from possible death.”

Officer Cheryl Donaldson provided an account of an incident in 1994 in which Sutton came to her aid after she had sustained a head injury in a fall. Serving as a prison unit manager at the time, she described lying on the prison floor, dazed, with her keys and radio sprawled out in the corridor. She said she feared that a prisoner might assault her or cause a security breach, but instead, “[Nick] sprang into action, helped me to my feet, retrieved my keys and radio, and alerted staff to come to my assistance.” That response, she said, “was typical of Nick, who always puts others before himself and is willing to help anyone in need.”

The clemency petition also offered a statement from the late Howard Ferrell, formerly a Hamblen County Sheriff’s Deputy, who described Sutton tackling a prisoner who was about to attack the deputy. “[Nick] probably could have saved my life,” Ferrell said.

Officer Eden strongly urged Governor Lee to grant Sutton’s request for clemency. “Nick Sutton is a prime example of a person's ability to change and that those convicted of murder can be rehabilitated,” Eden wrote. “If Nick Sutton was released tomorrow, I would welcome him into my home and invite him to be my neighbor.” Eden said Sutton “poses no danger to the prison staff or other inmates, and his presence in general population would be an asset to everyone at the prison.” Calling the possibility of Sutton’s execution “a grave injustice,” Eden said “I strongly support Nick Sutton receiving a life sentence.”

Five jurors who served at Sutton’s trial and voted to sentence him to death now say they support commuting his sentence to life in prison. His clemency plea also includes statements of support from family members of his victims.

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DPIC Analysis: Racial Disparities Persisted in U.S. Death Sentences and Executions in 2019

Posted: January 21, 2020

A DPIC analysis of executions and new death sentences in 2019 has found that even as death penalty usage declined across the United States, racial disparities in its application persisted.

Studies have consistently found racial disparities at nearly every stage of the capital punishment process, from policing and charging practices, to jury selection, to jury verdicts, to which cases result in executions. Those patterns of discriminatory sentencing and executions — and particularly race-of-victim effects — were evident once again in 2019.

In 2019, new death sentences declined to 34 and executions fell to 22. A disproportionate percentage of both involved white victims. Nationwide, the murder-victimization rate for African Americans is significantly higher than for whites. About half of all murder victims are black; yet, in 2019, nearly 80% (27 of 34) of new death sentences were imposed in cases involving victims who were white. 73% of executions in 2019 (16 of 22) involved cases with only white victims.

The racial disparities were even starker when DPIC looked at the race of both the defendants who were sentenced to death and the victim(s) they were accused of killing.

In 2019, 17 white defendants were sentenced to death. In each case, there was at least one white victim and only one case involved any black victim. In the five cases in which Latino defendants were sentenced to die, four involved a Latinx victim or victims, one involved a second victim who was white, and one involved a single white victim. Only African Americans were predominantly sentenced to death for interracial murders. Of the 12 black defendants sentenced to death, three involved only black victims. By contrast, five involved only white victims and seven had at least one white victim. Black defendants were also sentenced to death for murders of LatinX-only victims and Asian-only victims. No non-black defendant was sentenced to death a killing involving only black victims.

Since executions resumed in 1977, 308 black defendants have been executed for murders involving at least one white victim, compared to 34 white defendants who have been executed for murders in which at least one black victim was killed. In 294 of these cases, black defendants were executed for murders involving only white victims, while only 21 white defendants were executed for murders in which only black victims were killed.

As the number of new death sentences decreases, death row is growing even more racially disproportionate, with a significant increase in the percentage of Latinx death-row prisoners. Half of the 34 defendants sentenced to death in 2019 were people of color, with 35% African American and 15% Latinx. Southern California counties accounted for all of the death sentences in the state in 2019, and all three defendants sentenced to death were Latino.

The counties that have most aggressively pursued capital punishment have also been imposing it in an increasingly disproportionate manner. Only two counties imposed more than one death sentence in 2019: Cuyahoga County in Ohio (3) and Riverside County in California (2). Riverside has sentenced more people to die than any other county in the United States since 2013, and 92% (23 out of 25) of those condemned in the county in that time frame have been black or Latino. In Cuyahoga County, 4 of the last 6 defendants sentenced to death have been black.

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The Reverend Dr. Martin Luther King, Jr.: “Hate cannot drive out hate; only love can do that.”

Posted: January 20, 2020

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on the death penalty.

Dr. King's philosophy of non-violence had no room for capital punishment. In one of his most famous sermons, Loving Your Enemies, Dr. King preached: “Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.”

In 1952, Jeremiah Reeves, a 16-year-old African-American Montgomery, Alabama high school student was arrested for allegedly raping a white woman with whom he was having an affair. The teen was interrogated for two days, deprived of sleep, strapped into an electric chair, and told the only way to escape the death penalty was to confess. He did so, then recanted. The trial judge barred the defense from telling the all-white jury the circumstances of the “confession,” and Reeves was sentenced to death.

Six years later, Alabama executed him. On Easter Sunday 1958, nine days after the execution, Dr. King preached to a crowd of 2,000 on the steps of the state capitol about the “tragic and unsavory injustice.”

Dr. King said: “A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence.”

Dr. King continued: “But not only are we here to repent for the sin committed against Jeremiah Reeves, but we are also here to repent for the constant miscarriage of justice that we confront everyday in our courts. The death of Jeremiah Reeves is only the precipitating factor for our protest, not the causal factor. The causal factor lies deep down in the dark and dreary past of our oppression. The death of Jeremiah Reeves is but one incident, yes a tragic incident, in the long and desolate night of our court injustice. … Truth may be crucified and justice buried, but one day they will rise again. We must live and face death if necessary with that hope.”

According to the Bureau of Justice Statistics, 455 people were executed for rape in the United States between 1930 and the Supreme Court's decision declaring the nation's death penalty statutes unconstitutional in 1972. 405 (89.1%) were black. The use of the death penalty for rape remained almost exclusively a Southern phenomenon: 443 of the executions for rape (97.4%) occurred in former Confederate states. Noting the different punishment of blacks and whites for allegations of interracial rape, Dr. King later wrote in his memoir, Stride Toward Freedom, it was “[f]or good reason the Negroes of the South had learned to fear and mistrust the white man's justice.”

In a November 1957 interview Ebony asked Dr. King: “Do you think God approves the death penalty for crimes like rape and murder?” He responded, “I do not think that God approves the death penalty for any crime, rape and murder included…. Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God.”

[Originally posted January 15, 2018]

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Georgia Pardons Board Grants Day-of-Execution Clemency to Jimmy Meders

Posted: January 17, 2020

The Georgia Board of Pardons and Paroles has granted clemency to death-row prisoner Jimmy Meders (pictured). One day after his January 15, 2020 clemency hearing, and just six hours before his scheduled execution, the Board announced it had commuted Meders’ death sentence to a sentence of life without possibility of parole.

The Board’s commutation order was influenced in large part by affidavits submitted by every living member of the jury from Meders’ 1989 trial supporting his clemency petition. The Board listed “the jury’s explicit desire during deliberations to impose a life without parole sentence which was legally unavailable at the time, and every living, able juror’s continued support for such a sentence” among the factors it considered in reaching its decision. It also cited the circumstances of the offense, Meders’ lack of any other criminal history and his near spotless prison record.

Twenty minutes into its penalty-phase deliberations in Meders’ trial, the jury sent a note to the court asking whether they could sentence him to life without parole. At the time, Georgia did not authorize life without parole as a sentencing option, and the judge told them they could not condition a life verdict on the unavailability of parole. Four years later, the Georgia legislature changed the law to make capital murder punishable by life without parole or death.

Meders’ application for clemency also stressed the disproportionality of capital punishment for the crime Meders was convicted of committing and continuing doubts about his role in the murder. Meders was sentenced to death for the shooting death of a store clerk during a convenience store robbery. He had unsuccessfully sought DNA testing that he said would show that the prosecution’s key witness — who was not charged in the murder — was the actual shooter. He also argued that the murder would not be considered a capital case today, citing evidence that, in the past eight years, no prosecutor had sought the death penalty for a robbery/murder involving only one victim and no jury had voted for death in such a case in more than a decade.

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Appeals Court Hears Argument on Injunction that Halted Federal Executions

Posted: January 16, 2020

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard nearly two hours of argument on January 15, 2020 in four consolidated cases that could determine whether the federal government will be able to resume executions in 2020. The appeals panel—composed of Gregory G. Katsas and Neomi Rao, both appointed by President Donald Trump, and David S. Tatel, appointed by former President Bill Clinton—sharply questioned lawyers for the U.S. Department of Justice (DOJ) and four federal death-row prisoners over whether the DOJ execution protocol adopted in July 2019 in an effort to restart federal executions complied with the requirements of the Federal Death Penalty Act.

A federal district court had issued a preliminary injunction in November 2019 halting the executions scheduled for December 2019 and January 2020, saying that the prisoners were likely to prevail on their claim that the DOJ had “exceeded its statutory authority” in adopting the protocol. Court watchers agreed that the appeals panel appeared engaged but divided on that question, with the outcome of the government’s appeal uncertain.

The core issue in the case was whether language in the Federal Death Penalty Act requiring that federal executions be carried out “in the manner prescribed by the state” in which the prisoner was convicted permitted the executive branch to instead adopt a uniform federal execution protocol. On behalf of the DOJ, Melissa Patterson argued that “manner” refers simply to the method of execution, such as lethal injection, gas chamber, or hanging. Once the general method of lethal injection was selected, she said, the U.S. Attorney General had absolute authority to designate the drug or drugs used to carry it out, whether that drug was authorized by the state’s execution law or not. She said requiring the federal government to follow the details of each state’s death penalty procedures was impractical and could permit states that had execution moratoria or dormant death penalties to make it impossible for the federal government to carry out executions for federal crimes committed in those states. “Why would Congress have intended to hamstring the federal government?,” she asked.

The prisoners’ counsel, Catherine Stetson, argued based on the plain language of the statute and historical practice that “manner” refers to the details of how the states carry out an execution, including the method of execution, which drugs are used, and how the IV is inserted. She argued that Congress had expressly delegated certain discrete functions to the attorney general and that promulgating a uniform federal execution protocol was not one of them. Instead, she said, Congress deferred to the greater experience of state governments in carrying out executions by directing that federal executions follow state procedures.

In response to questioning from Katsas, Stetson said that the statute did not compel the federal government to follow “every jot of a state’s process” — such as pre-execution visitation practices or witness practices — only those portions of the process related to “implementing the sentence” itself. Rao questioned how, under the prisoners’ approach, the federal courts were supposed to determine which practices they must follow and which they did not have to.

Nonetheless, the judges seemed receptive, at least in part, to the argument that Congress was deferring to state experience and expertise. “What this looks like is that Congress was vesting the right to carry out death penalties to the states,” Tatel said. “That's one way to look at this.” Rao agreed, saying, “You could imagine Congress wanted to defer to the states. I don’t know why that would be so peculiar.”

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As Texas Prepares for First Execution of 2020, Oklahoma Marks Five Years with No Executions

Posted: January 15, 2020

As Texas prepared to carry out the first execution of 2020 on January 15, neighboring Oklahoma — once the second most prolific executioner in the United States — marked five years since its last execution. The states present a contrast in execution practices. Though the use of the death penalty has sharply declined in both states, Texas continues to lead the nation in executions, while Oklahoma will join the nearly two-thirds of death-penalty states (18 of 29) that have not carried out any executions in at least five years.

Texas executed John Gardner (pictured) for the 2005 murder of his estranged wife, shortly before their divorce was to be finalized. On January 13, 2020, the Supreme Court declined to review Gardner’s claim that his trial lawyer had been ineffective for failing to present an “abandonment rage” defense to the murder charges. Gardner will be the 568th prisoner executed by Texas since the U.S. Supreme Court upheld its capital punishment statute in 1976, by far the most of any state. Texas carried out more executions than any other state in 2018 (13) and 2019 (9), and already has eight executions scheduled through May 2020.

By contrast, Oklahoma — whose 112 executions are the third most of any state — shows no signs of resuming executions any time soon. Representatives of the Oklahoma Department of Corrections, the state attorney general, and Gov. Kevin Stitt all told Frontier editor-in-chief Dylan Goforth that they remained in discussions for resuming executions but had no timetable for when that might occur.

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'Just Mercy' Movie Opens Nationwide With a Message and Big Box Office Receipts

Posted: January 14, 2020

Just Mercy, the movie adaptation of Equal Justice Initiative (EJI) Executive Director Bryan Stevenson’s book of the same name, celebrated its nationwide release on January 10, 2020 with weekend ticket sales of more than $9.7 million. The film, which focuses on the wrongful conviction of Walter McMillian—one of Stevenson’s early death-penalty cases—ranked fifth among all movies in domestic box office receipts.

McMillian, an African-American man who had angered local law enforcement by having an affair with a white woman, spent six years on Alabama’s death row after having been framed for the murder of a young white woman. He was exonerated in 1993. In interviews coinciding with the movie’s release, Stevenson and the film’s stars, Michael B. Jordan and Jamie Foxx, spoke about the importance of telling McMillian’s story and about the systemic issues addressed in the film.

“[M]ost people in this country don’t want there to be inequality and injustice,” Stevenson said in an interview with WBUR’s Tonya Mosley for NPR’s Here & Now. “They don’t want people to be treated unfairly or cruelly. I just think if you get closer to it, you’ll be motivated to say more, to do more.” His hope, Stevenson said, is that people who see the movie “will walk away with a greater consciousness about why we need to do better in this country when it comes to creating a justice system that is fair and reliable.”

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States Continue to Oppose DNA Testing in Death Penalty Appeals, Attorneys Ask Why Don’t They Want to Learn the Truth?

Posted: February 7, 2020

The last three men scheduled for execution in Georgia said they did not commit the killing and that DNA testing that was not available at the time of trial could prove it. In two of the cases, victim family members supported the request for testing. Prosecutors opposed the requests, and the courts refused to allow the testing. Two of the three men were executed, with doubts still swirling as to their guilt.

Shawn Nolan, a federal defender who represented Georgia prisoner Ray “Jeff” Cromartie, summed up the sentiments of the prisoners, families, and defense attorneys in these cases. “I’d like to know what the state is so scared of,” he said. “Why are they afraid of the truth? This is sad and so disturbing.”

“We have the capability of testing a wide range of forensic evidence that we couldn’t test in the past,” said Death Penalty Information Center Executive Director Robert Dunham. “It is a powerful tool to get to the truth and to get important answers as to whether the criminal legal system has been reliably applying the death penalty.”

And yet, at a time in which fewer than half of Americans now believe the death penalty is fairly applied, prosecutors across the country are aggressively opposing post-conviction DNA testing and state courts have declined to allow it. What appears to some to be a willful indifference to the truth may be contributing to declining public confidence in the punishment, as evidence mounts that states may be executing innocent prisoners.

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Prosecutors, Catholic Bishops, and Conservative Group Submit Briefs Asking U.S. Supreme Court to Review Case of James Dailey

Posted: February 6, 2020

Three groups, representing prosecutors, the Catholic Church, and political conservatives, have filed briefs in the U.S. Supreme Court supporting the efforts of Florida death-row prisoner James Dailey (pictured) to obtain judicial review of his innocence claim. Dailey filed a petition for certiorari on January 10, 2020 asking the Supreme Court to hear his case, after the Florida courts refused to consider evidence that another man had confessed to the murder.

Dailey, a veteran who served three tours of duty in Vietnam and one tour in Korea, has long maintained his innocence in the abduction and murder of 14-year-old Shelly Boggio. No physical evidence linked him to the crime, but he was convicted on the testimony of his co-defendant, Jack Pearcy, and three jailhouse informants. Pearcy has since recanted his testimony against Dailey and said on several occasions that he alone killed Boggio. Each of the jailhouse informants received benefits from prosecutors in exchange for their testimony, but falsely testified that they had not received preferential treatment. One informant, Paul Skalnik, is a sex offender and con man who has since been revealed to be a prolific prison informant. His testimony has been used to convict at least 37 defendants, receiving reduced sentences and even having charges against him dropped as a result of his cooperation with police and prosecutors.

“No court has heard all the evidence of James Dailey’s innocence, including the repeated confessions of another man who admits that he killed the victim by himself and is serving a life sentence for it,” said Josh Dubin, one of the lawyers representing Dailey in his current appeal. “The U.S. Supreme Court should review Mr. Dailey’s case and make sure he receives a new trial.”

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New Scholarship: Born in the Legacy of Discrimination, What Comes After Capital Punishment Goes?

Posted: February 5, 2020

As the death penalty continues to wilt across the country, whatever penological justification it once purportedly served is dying as well, say capital punishment scholars Carol Steiker and Jordan Steiker (pictured). In their new article The Rise, Fall, and Afterlife of the Death Penalty in the United States in the January 2020 Annual Review of Criminology, the Steikers examine four central issues in the rise and fall of the death penalty in the United States and explore what an American criminal justice system might look like after the punishment’s demise.

Carol Steiker is the Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal Justice Policy Program at Harvard Law School. Her brother, Jordan Steiker, is the Judge Robert M. Parker Endowed Chair in Law and Director of the Capital Punishment Center at the University of Texas School of Law. Both served as law clerks to the late U.S. Supreme Court Justice Thurgood Marshall and together they have written extensively on death-penalty issues, including the acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment.

In the Criminology Review article, the siblings address the United States’ retention of the death penalty when all other developed Western democracies have eliminated it; the role of race and the legacy of discrimination in the administration of the death penalty; the death penalty’s “sudden and profound withering” over the last two decades; and the broader impact abolition of the death penalty would have on the United States criminal legal system.

After reviewing these four main issues, the Steikers conclude that “by every measure, the American death penalty is withering, reflecting its increasing tension with contemporary moral standards and undercutting its ability to serve any penological purpose (such as deterrence or retribution) necessary to justify its retention.”

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Twenty-One Virginia Prosecutors Sign Letter Urging Repeal of Death Penalty

Posted: February 4, 2020

Calling the death penalty “a failed government program,” 21 current and former Virginia prosecutors have signed on to a letter to the commonwealth’s General Assembly urging the legislature to abolish capital punishment. The letter was signed by former Attorneys General Mark L. Earley, Sr., a Republican who presided over 36 executions during 13 years in office, and Democrat William G. Broaddus, nine current or former Commonwealth’s Attorneys elected across the state, and 12 other former homicide prosecutors.

“As prosecutors with different beliefs and backgrounds, we do not all agree on the morality of capital punishment,” the letter says. “However, all of us do agree on the public policy goal of death penalty repeal.” Repeal bills have been introduced in both chambers of the legislature. The Senate Judiciary Committee included the repeal bill, SB 449, in a slate of bills heard February 3, 2020, and the House Courts of Justice Committee is expected to consider its version of the bill, HB 85, later in the week.

The letter highlights the geographically arbitrary application of capital punishment across Virginia and juries’ increasing reluctance to impose it. “Nearly two-thirds of Virginia jurisdictions have not pursued a death sentence in over 50 years,” the prosecutors wrote. “Virginia juries have not imposed a death sentence in over eight years.”

The prosecutors emphasize several factors they believe call for repeal: the high cost of death-penalty cases, the arbitrary application of death sentences, the risk of wrongful convictions, and the lack of deterrent effect. “Whether the death penalty is ‘right’ or ‘wrong,’ we all conclude that there is a more cost-effective, constitutional way to respond to the most heinous crimes: a sentence of life in prison without the possibility of parole,” they say. “Life without parole sentences help preserve our limited resources, give more finality to victim families, and leave the opportunity to free the wrongfully convicted. Most importantly, a life without parole sentence ensures that the most dangerous criminals can never threaten the public again, and that they will die in prison without any fanfare or publicity.”

Repeal, they write, will also free up “further resources for crime victims around the Commonwealth” and alleviate the recurring pain experienced by victims’ families as a result of the “potential multi-decade wait between a death sentence and execution,” if the sentence is eventually carried out.

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Washington Senate Passes Bill to Formalize Repeal of Capital Punishment

Posted: February 3, 2020

For the third consecutive year, the Washington State Senate has voted to remove the death penalty from the state’s statute books. In a 28-18 vote praised by abolition advocates for its bipartisanship, four senate Republicans joined 24 of their Democratic colleagues on January 30, 2020 to formally repeal Washington’s capital punishment law. With a new Speaker replacing Democratic leadership who had prevented the bill from coming up for a vote in the House in 2018 and 2019, the prospects of the bill passing in the 2020 legislative session are considered favorable.

In October 2018, the Washington Supreme Court struck down the state’s death penalty law, declaring that it had been “imposed in an arbitrary and racially biased manner.” That ruling also overturned the death sentences of all eight people on the state’s death row and converted them to life without parole. The court’s decision left open the possibility that legislative reforms to the death penalty could bring the practice in line with the state constitution. However, the proposed legislation would formally eliminate capital punishment as a sentencing option in Washington.

In 2018 and 2019, the abolition bill — SB 5339 — passed the Senate before stalling in the House. Representative Laurie Jinkins, who became House Speaker on January 15, 2020, said she is personally in favor of the bill, but has not yet brought it to her colleagues in the Democratic caucus. The bill also has the support of Governor Jay Inslee and Attorney General Bob Ferguson. Bill sponsor Senator Reuven Carlyle (D – Seattle) said, “Now that we have firm resolution from both the executive branch and the judiciary branch, it is time for the legislative branch that sets the laws of our state to make a final determination on this particular legislation.”

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Exonerees in Florida, Idaho Murder Cases Initiate Lawsuits for Wrongful Prosecution

Posted: January 10, 2020

In two cases in which the death penalty played a central role, recent exonerees in Florida and Idaho have initiated legal proceedings against government officials, alleging that they were wrongfully prosecuted and convicted.

On January 7, 2020, Florida death-row exoneree Clemente Aguirre-Jarquin (pictured with his lawyers), filed suit in federal court against Seminole County, the county sheriff’s office, and the Florida Department of Law Enforcement (FDLE) alleging that he had been wrongfully convicted and sentenced to death for the 2004 murders of two neighbors as a result of a negligent investigation fueled by anti-immigrant bias. In December 2019, Idaho Falls officials confirmed that Christopher Tapp, whom police coerced into falsely confessing to a 1996 rape and murder by threatening him with the death penalty, has served notice of his intent to sue the city for a wide range of civil rights abuses arising out of his arrest and wrongful conviction.

Aguirre was exonerated in November 2018 after nearly 15 years of wrongful imprisonment. When DNA testing cleared Tapp of the rape charges in 2017 after more than 20 years in prison, prosecutors conditioned his release upon accepting a plea deal that left his murder conviction intact. He was exonerated in July 2019 when the actual murderer, who had been identified by the DNA testing, confessed to having acted alone.

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Nebraska Supreme Court: Death-Penalty Repeal Bill Overturned by Voters Didn’t Invalidate Prisoners’ Death Sentences

Posted: January 9, 2020

The Nebraska Supreme Court has ruled that the 2015 legislative repeal of the state’s death-penalty statute did not invalidate the death sentences of the prisoners on the state’s death row because the repeal bill never became law before it was rejected by a statewide voter referendum.

In a decision issued January 3, 2020, the court dismissed a claim brought by death-row prisoner Marco Torres (pictured) that the legislature’s repeal of the death-penalty law changed his death sentence to life imprisonment and the voter referendum reimposed death sentences on him and the other death-row prisoners in Nebraska. Under Nebraska law, the court said, the filing of a petition to invalidate a legislative action suspends that action until the public votes to accept or reject that legislative action. The repeal bill, L.B. 268, was suspended by “the filing of petitions on August 26, 2015,” four days before its scheduled effective date. Accordingly, the repeal law “never went into effect,” the court said; the death penalty was never reinstated; and the sentencing status of Torres and the other prisoners never changed.

Nebraska’s unicameral legislature voted three separate times in 2015 in favor of abolishing the death penalty, becoming the first Republican-dominated legislature in more than 40 years to vote to end capital punishment. A majority of the legislature’s 30 Republicans joined by 12 Democrats and an Independent supported repeal.

After two preliminary votes in April and early May advanced the repeal bill to final consideration, the unicameral legislature voted 32-15 on May 20 to replace its death penalty with a sentence of life without possibility of parole. Governor Pete Ricketts vetoed the bill, but a supermajority of the legislature voted 30-19 on May 28 to override the veto. Governor Ricketts then spearheaded an effort by a newly created entity, Nebraskans for the Death Penalty, to place on the ballot a voter referendum that would stop the repeal from going into effect. The Governor personally contributed $200,000 and, in combination with his father, securities investor and Chicago Cubs Board chairman Thomas Ricketts, donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. In November 2016, the voters overwhelming voted to retain the state’s death penalty law.

Torres has previously attempted to challenge his death sentence on the grounds that Nebraska’s three-judge sentencing statute violated his Sixth Amendment right to have a jury decide any fact that could result in his being sentenced to death. The state court dismissed that challenge in 2018, saying he had waited too long before raising it.

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Controversial Mississippi Prosecutor Recuses Himself from Further Involvement in Curtis Flowers’ Case

Posted: January 8, 2020

After having been rebuked by the U.S. Supreme Court in June 2019 for his pattern of racially biased jury selection in the capital prosecutions of Curtis Flowers and sued in federal court to bar future race-based jury strikes, Mississippi prosecutor Doug Evans has voluntarily recused himself from future involvement in Flowers’ case.

Evans has been the driving force in Flowers’ case for more than 20 years, personally prosecuting Flowers (pictured, right, with defense co-counsel Henderson Hill) six times for a 1996 quadruple murder in Winona, Mississippi. Flowers’ first three convictions and death sentences were overturned by the Mississippi Supreme Court as a result of prosecutorial misconduct, with the court twice finding that Evans had unconstitutionally used his discretionary strikes against black jurors on the basis of race. Flowers’ fourth and fifth trials — the only trials in which more than one black juror was empaneled — ended in hung juries. In Flowers’ sixth trial, a jury of 11 white jurors and one black juror convicted him and sentenced him to death.

The case reached the U.S. Supreme Court in 2019, focusing on Evans’ pattern of racially discriminatory jury selection. American Public Media Reports’ podcast In the Dark analyzed 26 years of jury strike records and found that Evans’ office had struck black people from juries at nearly 4.5 times the rate it struck white people. Over the course of the five Flowers trials for which data was available, Evans voluntarily accepted only one black juror, striking or attempting to strike every other black juror until he ran out of peremptory strikes. The Court vacated Flowers’ sixth conviction on June 21, 2019 in a 7-2 decision. Justice Brett Kavanaugh, writing for the majority, wrote, “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection.” Kavanaugh wrote that Evans’ “relentless, determined effort to rid the jury of black individuals ... strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

Evans’ recusal motion, filed in the Montgomery County Circuit Court on January 6, 2020, made no mention of the history of prosecutorial misconduct and racial bias in the case. Evans said that he “remain[ed] confident in both the investigation and the jury verdicts” in the case, but had nevertheless concluded that his “continued involvement will prevent the families from obtaining justice and from the defendant being held responsible for his actions. It is for these reasons,” he wrote, “that I voluntarily recuse my office from further involvement.” Evans asked the trial court to appoint the Mississippi Attorney General’s office to prosecute the case.

Flowers’ lawyer Robert McDuff of the Mississippi Center for Justice issued a sharply worded statement in response to Evans’ recusal. “Doug Evans had no business staying on this case,” McDuff said, “and we are pleased he recused himself. We look forward to what we hope will be an impartial review of this case by the new Attorney General of Mississippi. As the trial judge indicated when granting bail, the evidence of innocence has become even more clear since the last trial. There is no reason to continue wasting taxpayer money and putting everyone through a seventh trial. Curtis Flowers is innocent. This misguided prosecution has been plagued from the beginning by misconduct and racial discrimination, and it is time to bring it to an end."

Flowers was released on bail on December 16, 2019 after spending 23 years in jail, most of that time on death row. Evans had initially hinted that he would try Flowers a seventh time but had not formally announced a decision. That decision will now be made by the Mississippi Attorney General.

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Louisiana Reaches Ten Years Without an Execution

Posted: January 7, 2020

On January 7, 2020, Louisiana marked the passage of ten years since its last execution.

As a result of the milestone, two-thirds of U.S. states have now either abolished the death penalty or gone at least a decade without an execution. Twenty-one U.S. states have judicially or legislatively abolished capital punishment. With Louisiana joining their ranks, 12 of the 29 states that still authorize the death penalty (41.4%) have gone more than a decade without carrying out an execution. (Click here to enlarge map.)

Louisiana last carried out an execution on January 7, 2010, putting Gerald Bordelon to death by lethal injection. His execution was the 28th in Louisiana in the modern era of the death penalty. Prior to Bordelon’s, Louisiana had not executed anyone since 2002.

As the state approached the anniversary of Bordelon’s execution, advocates for the abolition of the death penalty planned a vigil outside the headquarters of Resurrection After Exoneration, a non-profit founded by death-row exoneree John Thompson. Citing high costs, wrongful convictions, and declining public support for capital punishment, Michael Cahoon of the Promise of Justice Initiative, called the 10-year execution hiatus “indicative that the system is broken beyond repair.” The Promise of Justice Initiative, which represents Louisiana death-row prisoners and advocates for death-penalty abolition, was one of the sponsors of the event.

According to State Public Defender James Dixon, the Louisiana Public Defender Board spent more than $100 million on defense costs for death-penalty cases between 2008 and 2019. The figure does not include other death-penalty costs, such as prosecution, incarceration, and court costs.

Louisiana has exonerated 11 people from death row, making it fourth in the U.S. for number of death-row exonerations. Three of those exonerations took place in the decade since the state last carried out an execution. Among Louisiana’s notable exonerations are John Thompson, who was exonerated in 2003 after an investigator discovered that prosecutors withheld evidence, and Glenn Ford, who, at the time of his 2015 exoneration, was the nation’s longest-serving death-row exoneree. Thompson’s case gained notoriety after a jury awarded him $14 million in a lawsuit against the office of the prosecutor whose misconduct had resulted in his wrongful conviction. The U.S. Supreme Court overturned the ruling, granting prosecutors conditional immunity from civil liability for misconduct. In dissent, Justices Ginsburg, Breyer, Sotomayor and Kagan argued that the evidence “established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility.”

As in other states, the difficulty of obtaining lethal-injection drugs has also played a role in the decline in executions. However, the ten-year gap in executions is not the only indication that Louisiana’s death penalty is in decline. The state imposed 14 new death sentences in the decade of the 2010s, and only one in the past four years. The two death sentences imposed in the second half of the 2010s were 26 times fewer than the state imposed during Louisiana’s death-sentencing peak between 1995-1999. The state imposed 52 new death sentences during that period, for an average of 10.4 new death sentences per year.

In 2019, a bipartisan team of legislators proposed bills to abolish the death penalty. Bills passed committees in both the House and the Senate, but the Senate bill failed a floor vote and the House bill was withdrawn. The effort gained strong support from religious leaders in Louisiana.

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Criticism by Government Leaders, Victim’s Son Fuel Growing Doubts About Viability of Ohio’s Death Penalty

Posted: January 6, 2020

With executions on hold due to problems with the lethal-injection protocol, the future of capital punishment in Ohio is uncertain. High-ranking Ohio officials have expressed concerns about the effectiveness and viability of the state’s death penalty, and two recent columns in leading Ohio newspapers have argued that the state should end capital punishment.

In a year-end interview with the Toledo Blade, Governor Mike DeWine intimated that Ohio’s death penalty was both unworkable in practice and a failure as an instrument of public safety. “I have said for many years,” he told The Blade, “that, if you’re talking about protecting the public, whatever you think about the death penalty morally, the death penalty can never come in very high in things that protect the public.”

The state's death penalty also drew criticism from a victim's family member. A December 28, 2019 Columbus Dispatch op-ed by Jonathan Mann (pictured), whose father was murdered, said the death-penalty legal process revictimizes family members and takes resources away from services that support victims’ families. “Instead of spending millions on death penalty trials and decades of appeals, we should be investing in tools to reduce, prevent and solve crimes. If we care about victims’ families like mine, we should be prioritizing services that benefit all of us, instead of pouring millions into an arbitrarily applied death penalty,” he wrote.

Mann said he opposed the death penalty for his father’s murder, but Cuyahoga County prosecutors immediately told him that he could expect the killer to receive a death sentence. “My wishes weren’t even pretended to be considered. I was left voiceless in a scenario that affected me deeply; he was my father.”

Also on December 28, a column by Cleveland Plain Dealer editorial board member Thomas Suddes argued that concerns expressed by Republican leaders about the “practicality and cost” of Ohio’s death penalty are reason enough to do away with the punishment. “Of the 56 Death Row inmates ... whom Ohio has executed beginning [in] 1999, the average time spent on Death Row was about 17 years and two months,” Suddes wrote. However, he wrote, this lengthy appeal process is necessary to redress the “injustice after injustice” they have uncovered in Ohio capital cases.

Ultimately, Suddes suggests, “[i]n courtroom after courtroom, what an Ohio death sentence may really mean is imprisonment for life—if you can call that a life—without any possibility of liberty.” He concludes: “The question is whether Ohio should admit the reality of its death penalty, or, at a cost of millions of taxpayer dollars in legal fees, keep denying the obvious.”

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Federal Judge Orders Jury Trial on Claim that Kentucky Exoneree Who Was Threatened With Death Penalty Was Framed for Murder

Posted: April 24, 2020

A federal judge has ruled that a civil rights lawsuit against a detective who allegedly framed a Kentucky woman for a murder she was physically incapable of committing may proceed to a jury trial.

On April 1, 2020, U.S. District Court Judge Claria Horn Boom denied a motion filed by former Kentucky State Police detective Todd Harwood to dismiss claims of malicious prosecution brought by Susan Jean King (pictured) in connection with the murder of Kyle Breeden in 1998. King alleges that Harwood fabricated evidence against her and, according to the court’s opinion, “told her he would make sure she spent the rest of her life in jail and that she would get the electric chair.”

Court proceedings show that Harwood affirmatively misled the court to obtain a warrant to search King’s house and to arrest her. Harwood falsely argued that two bullet holes in the floor of King’s house were grounds for a search, failing to tell the judge who issued the warrants that the bullets that killed Breeden had been “non-exiting” — that is, they were still lodged in his head. Harwood also omitted information about King’s “small stature and physical disability” — she weighed 108 pounds at the time of the murder, had lost a leg below the hip as a result of a car accident, and required a wheelchair for locomotion. Moreover, the court said, Harwood knew, but did not disclose, that King did not own a car. All of these facts, the court found, would have been “squarely relevant” to Harwood’s false assertion that King would have been able to kill Breeden, then “tie him up, drag his body out of the house to an unknown car, and drive 40 miles to dump his body in the Kentucky River.”

Harwood also claimed that King had killed Breeden in her home, dragged him across the floor of the house, and then used an industrial solvent to clean the floor, which left the floor stained. But tests of the stain found no evidence of any solvent.

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Release of Former Virginia Death-Row Prisoner Delayed as Police Protest Grant of Parole

Posted: April 23, 2020

The release of a former Virginia death-row prisoner has been delayed after police organizations demanded an inquiry into the Virginia Parole Board decision to grant parole to Vincent Lamont Martin (pictured), convicted of the 1979 murder of a Richmond police officer.

Martin, who has been eligible for parole for 26 years, had been scheduled to be released on April 30, 2020 following a parole grant approved by a supermajority of the parole board earlier in the month. News reports indicate that his release has been postponed until May 11, 2020.

In announcing the parole board’s decision on April 14, Board Chair Adrianne L. Bennett expressed doubts about Martin’s conviction, saying his trial had been tainted by “a dark cloud of injustice.” Martin’s prosecutor, she said, had withheld evidence from the defense in the case and his law license was later suspended for ethical violations in other cases. Bennett said that in his more than 40 years of incarceration, Martin had grown into “a trusted leader, peacemaker, mediator and mentor in the correctional community.”

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Amnesty International Report: Confirmed Executions and Death Sentences Continue Global Decline, But Secrecy Hinders Accurate Assessment of Trends

Posted: April 22, 2020

Executions across the globe fell 5% worldwide in 2019 to the fewest in more than a decade, despite a record number of executions in Saudi Arabia, Amnesty International reported in the human rights organization’s Global Report: Death Sentences and Executions in 2019.

The Amnesty report, released April 21, 2020, detailed rising political abuse of the death penalty in the Middle East, but said the region’s increased executions were offset by declines in executions in the Asia-Pacific region and elsewhere in the world. Amnesty said that in the countries for which it was able to obtain reliable data, nations carried out at least 657 executions in 2019, down from the already decade-low number of at least 690 recorded in 2018. The number of confirmed executions in 2019, the report said, was “one of the lowest figures that Amnesty International has recorded in any given year since it began its monitoring of the use of the death penalty in 1979.” However, the human rights organization said that efforts by countries to hide the extent of their death penalty usage confounded its ability to assess the significance of the decline.

As in previous years, the execution total does not include the estimated thousands of executions carried out in China, which treats data on the death penalty as a state secret. China is thought to have carried out more executions in 2019 than the rest of the world combined. Excluding China, 86% of all reported executions were concentrated in just four Middle Eastern countries — Iran (251+), Saudi Arabia (184), Iraq (100+), and Egypt (32+). The 22 executions in the U.S. were the sixth most of any nation, although Vietnam’s and North Korea’s execution totals are not known.

Amnesty recorded at least 2,307 death sentences in 56 countries in 2019, a 9% decline from the 2,531 reported in 2018. However, Amnesty believes that number is artificially low as a result of the unavailability of reliable information from Malaysia, Nigeria and Sri Lanka, three nations that had reported significant numbers of death sentences in previous years. Five countries are confirmed to have imposed more than 100 death sentences in 2019: Pakistan (632+), Egypt (435+), Bangladesh (220+), India (102), Zambia (101). The U.S. ranked 12^th, with 35 new death sentences imposed. Because of state secrecy, Amnesty was also unable to obtain information on new death sentences imposed in China, Iran, North Korea, and Syria.

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Case of 79-Year-Old Ohio Death-Row Prisoner With Dementia Highlights Legal Issues Exacerbated by the Aging of Death Row

Posted: April 21, 2020

Seventy-nine-year-old James Frazier (pictured) is Ohio’s oldest death-row prisoner. He has dementia, he cannot walk, and he requires the assistance of aides to complete daily tasks. Because of his special medical needs, he is incarcerated at the Franklin Medical Center, rather than on Ohio’s death row at the Chillicothe Correctional Institution. Ohio is scheduled to execute him on October 20, 2021.

An April 19, 2020 story in the Cleveland Plain Dealer highlights Franklin’s case and the growing problems associated with the aging of the nation’s death row: how many prisoners are at risk of developing physical and mental health problems that impair their understanding that they are condemned to die and why? The lengthy appeals process—necessary to identify and redress constitutional defects common in death-penalty trials—has resulted in prisoners aging in solitary confinement on death row and facing the physical and mental decline that can come from the combination of old age, oppressive physical conditions, and the extreme stress of facing execution.

About one-quarter of the nation’s 2,620 death-row prisoners are age 60 or older, the same proportion as in Ohio. And death row is growing older with more and more prisoners developing dementia and other mental disorders that threaten their competency and may render attempts to carry out their executions cruel and unusual punishment.

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Jerry Givens, Former Executioner Who Became Outspoken Critic of Death Penalty, Dies at 67

Posted: April 20, 2020

Jerry Givens (pictured), who performed 62 executions during his time as a Virginia corrections officer, but later became an activist against the death penalty, died April 13, 2020 of COVID-19. He was 67 years old. During his 17 years (1982-1999) as a member of Virginia’s execution team, the commonwealth performed more executions than any other state except Texas.

Though he swore an oath not to tell even his family about his role as executioner until he left his corrections position, Givens later shared his experiences throughout the U.S. and internationally. “Jerry was pained by his experience but also proud of how he did it,” said Abraham Bonowitz, co-director of the abolitionist group, Death Penalty Action, on whose board of directors Givens served. “That sometimes rubbed some people in the movement the wrong way. He was also a very devout religious person. He did what he could to help heal the world in the wake of the damage done during his career.”

“He was one of the very few executioners who was willing to speak publicly about his experience, and how that experience changed him over time so that he became a passionate critic and opponent of the death penalty,” said Michael Stone, executive director of Virginians for Alternatives to the Death Penalty (VADP), another organization for which Givens served as a board member.

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Webinar Series Highlights Issues Faced by Veterans Facing the Death Penalty

Posted: November 6, 2020

The Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty. The webinars, which are co-sponsored by Advancing Real Change, Inc. and Witness to Innocence, will address a broad range of serious issues that have made veterans disproportionately vulnerable to capital prosecution. The series opens Monday, November 9, the week the nation commemorates Veterans Day 2020, with a session on Veterans on Death Row.

In November 2015, DPIC released a report, Battle Scars: Military Veterans and the Death Penalty, that highlighted the plight of veterans on America’s death row. The report, which received a Congressional Black Caucus Veterans Braintrust Award for its treatment of the issue, presented the stories of “veterans with debilitating scars from their time in combat … [who] have been judged to be the ‘worst of the worst’ criminals, deprived of mercy, sentenced to death, and executed by the government they served.” It detailed instances of defense lawyers who failed to investigate veterans’ military service and related mental health issues; prosecutors who dismissed or belittled their claims of war trauma or portrayed them as depraved trained killers; judges who discounted evidence of PTSD or brain trauma on appeal; and governors who refused to bestow mercy based on injuries sustained in serving the country.

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Symposium: The Growing Impact of the Supreme Court Shadow Docket on Death Penalty Cases

Posted: November 5, 2020

The U.S. Supreme Court’s “shadow docket” is having a growing and disproportionate impact on the Court’s resolution of controversial social issues, with some of its most profound effects being felt in death penalty cases.

The term, coined in 2015 by law professor William Baude, refers to expedited emergency rulings made by the court without full briefing and argument, typically unsigned and rendered without an opinion explaining the Court’s legal reasoning. In a seven-article online symposium published by SCOTUSblog from October 22­–October 28, 2020, legal experts dissect the institutional implications of the recent explosion of these decisions and discuss their impact on cases addressing national elections, immigration, state and local responses to the coronavirus pandemic, and the death penalty.

In her symposium article, The shadow docket is shaping the future of death penalty litigation, DPIC Senior Director of Research and Special Projects Ngozi Ndulue (pictured) explores the Court’s series of late-night unsigned decisions vacating or denying stays or injunctions that would have temporarily halted federal executions to permit lower courts to review factual or legal disputes material to the outcome of the cases. The Court’s rulings, Ndulue argues, “were exceptional and will continue to reverberate in death-penalty and non-death-penalty cases for years to come.”

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Local Prosecutor Elections Foreshadow Continued Movement Away From Death Penalty

Posted: November 4, 2020

Reform prosecutors made further inroads in the American legal system in the November 2020 general election, unseating prosecutors in several of the most prolific death-sentencing counties in the United States and capturing open seats in major Texas and Florida counties, but falling short in several other high profile races.

Election results updated on Thursday, November 5, showed that candidates pledging systemic reforms, including reduced use or abandonment of the death penalty, had won prosecutor races in Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH). Incumbents appear to have fended off challenges in Maricopa County (Phoenix, AZ) and Hamilton County (Cincinnati, OH). The election presaged a continued reduction in capital prosecutions in the nation’s historically most prolific death-sentencing counties. Collectively, the four prosecution offices in which new progressive prosecutors prevailed had 263 prisoners on their death rows at the start of 2020, accounting for 10% of the country’s total death-row population.

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Ohio Judges Acquit Capital Defendant in Alleged Arson Deaths of His Family

Posted: November 3, 2020

A three-judge panel in Madison County, Ohio has acquitted a man prosecutors charged with capital murder for allegedly setting his car on fire to burn down his house with his wife and children inside.

The judges rejected prosecutors’ arguments that Peter Romans (pictured with his family) had poured gasoline on the driver’s side of the family’s SUV and set the car ablaze with the intent that the conflagration spread to the house to kill his wife Billi and their two children, Ami and Caleb. Prosecutors did not arrest Romans for more than a decade. At trial, they sought the death penalty, arguing that Romans had killed his family because he allegedly was having an affair with another woman and needed money from the family’s life insurance because he was in financial ruin.

Romans presented expert testimony that the car fire had been caused by a faulty cruise-control deactivation switch in his Ford Expedition. At the time of the fire, Ford had issued a recall for the faulty switch because it had been implicated in spontaneous vehicle fires, some of which occurred when the engine was off. Romans’ SUV had not been repaired after the recall. Romans’ defense lawyer, Sam Shamansky, told the judges that Romans had no reason to start the fire and that he had “lost everything in the world that mattered to him the most.”

The October 29, 2020 not-guilty verdict ended the criminal portion of a 12-year saga since the April 6, 2008 fire in which the Romans case was handed back and forth between prosecutors and investigators and eventually became the subject of a cold-case story in the Columbus Dispatch. In 2009, Romans sued Ford Motor Co. and the switch distributor for negligently causing the fire, and that lawsuit was just weeks from going to trial when Romans was indicted on aggravated murder, arson, and other charges last year.

Romans was supported throughout the trial by his late wife’s sisters, his current wife, and his stepchildren. “God had this,” said one of the sisters after the “not guilty” verdicts were read.

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Florida Supreme Court Abandons 50-Year-Old Proportionality Safeguard for Capital Defendants

Posted: November 2, 2020

In a continuing diminution of procedural safeguards in capital cases, the Florida Supreme Court has ended its long-standing practice of independently reviewing death penalty cases on appeal to ensure that they are not disproportionate to sentences imposed in similar cases.

The practice, known as comparative proportionality review, was initiated by the court a half-century ago after the U.S. Supreme Court struck down all existing U.S. death penalty statutes in Furman v. Georgia because of the unconstitutionally arbitrary manner in which capital punishment was administered. Most other death penalty states enacted similar procedures as a critical appellate protection against arbitrary and discriminatory infliction of capital punishment. And in 1976, the U.S. Supreme Court upheld Florida’s death sentencing statute in Proffitt v. Florida in part because “[t]he Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases.”

Although the U.S. Supreme Court held in Pulley v. Harris in 1984 that the absence of comparative proportionality review did not in itself render a capital appeal process unconstitutional, Florida and most other death penalty states continued the practice. Nonetheless, on October 30, 2020, over the strong dissent of Justice Jorge Labarga, the Florida justices ruled in Lawrence v. State that performing comparative proportionality review violates the Florida Constitution.

In dissent, Justice Labarga wrote that comparative proportionality review is “a fundamental component of this Court’s mandatory review in direct appeal cases,” and he called the court’s action “the most consequential step yet in dismantling the reasonable safeguards contained within Florida’s death penalty jurisprudence.”

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Op-Eds Highlight Disparities in Federal Death Penalty, as 1,000 Faith Leaders and the European Union Urge Justice Department to Halt Executions

Posted: July 10, 2020

As the scheduled July 13, 2020 date for the first federal executions in 17 years approaches, faith leaders, diplomats, and legal experts have asked the federal government to call them off. 1,000 faith leaders from across the country have urged President Trump and Attorney General Barr to halt the executions. They are joined by the European Union, which on July 10 also issued a statement strongly opposing the resumption of federal executions. Complementing their efforts, two recent op-eds by death-penalty experts describe a federal death-penalty system that, they say, is plagued by endemic bias and arbitrariness.

On July 7, more than 1,000 faith leaders from a variety of religious backgrounds issued a statement in opposition to the four scheduled executions. They wrote: “we call on President Trump and Attorney General Barr to stop the scheduled federal executions. As our country grapples with the COVID-19 pandemic, an economic crisis, and systemic racism in the criminal legal system, we should be focused on protecting and preserving life, not carrying out executions.” The statement was signed by bishops, pastors, rabbis, and others representing a range of Christian, Jewish, and Buddhist sects.

One signatory, Carlos Malavé, Executive Director of Christian Churches Together, said, “As an Evangelical, I am heartbroken to see our country return to killing its citizens. We have seen so much death in recent months and people are hurting. Restarting executions during a pandemic should be the farthest thing from our minds.” Archbishop Charles C. Thompson from the Catholic Archdiocese of Indianapolis, which includes Terre Haute, where federal death row is located, issued a separate statement noting, “The taking of life, no matter how ‘sanitary’ or ‘humane’, is always an act of violence. While the Church is certainly concerned with the soul of every person, including those on death row, I make this plea against the death penalty out of ultimate concern for the eternal soul of humanity.”

From Brussels, Belgium, the European Union released a statement saying it “strongly opposes the decision of the United States Department of Justice to resume the federal death penalty after a 17-year hiatus.” The resumption of executions, the EU said, “runs counter to the overall trend in the United States and worldwide to abolish the death penalty, either by law or in practice.” The EU called the death penalty “a cruel, inhuman and degrading punishment [that is] incompatible with the inalienable right to life, fails to provide effective deterrence to criminal behaviour, and is irreversible.” The European Union said it “stands firmly and unequivocally by the victims of crimes and their families, and supports the application of effective, non-lethal punishments.”

A July 7 op-ed in The Hill by NAACP Legal Defense and Educational Fund (LDF) Litigation Director Samuel Spital and a Bloomberg Law commentary by DPIC Executive Director Robert Dunham on July 8 criticized the planned executions, citing extensive evidence that the federal death penalty has been arbitrarily and discriminatorily applied.

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Supreme Court Issues Sweeping Decision Affirming Tribal Sovereignty, Vacates Oklahoma Conviction and Death Sentence

Posted: July 9, 2020

The United States Supreme Court has vacated the conviction of a Native American death-row prisoner in Oklahoma, giving dramatic effect to a sweeping new decision that affirmed the sovereignty of the the Muscogee (Creek) Nation over tribal lands that span the eastern half of the state.

In an historic ruling in McGirt v. Oklahoma, the Court declared that Congress had never disestablished the Creek Reservation that was created by a series of treaties between 1832 and 1866 in the aftermath of the federal government’s forcible relocation of the Creek and four other Indian nations from their homes in Alabama and Georgia. The treaties promised the Creek Nation a “forever homeland” in the Indian Territories that subsequently became part of the state of Oklahoma. The McGirt decision affirmed that these lands were still “Indian Country,” as defined by federal law, within which Oklahoma lacked jurisdiction to attempt to try tribal members for serious offenses.

In a one-sentence per curiam decision that cited McGirt, the Court affirmed a ruling by the U.S. Court of Appeals for the Tenth Circuit that had voided Patrick Dwayne Murphy’s murder conviction and death sentence imposed in the Oklahoma state courts. On August 8, 2017, the Tenth Circuit granted Murphy habeas corpus relief, finding that the murder, which occurred in Henryetta, Oklahoma, had been committed on lands within the borders of the Creek Reservation. The Court wrote: “Because Mr. Murphy is an Indian and because the crime occurred in Indian country, the federal court has exclusive jurisdiction. Oklahoma lacked jurisdiction.”

Murphy (pictured below) still faces prosecution for murder in the federal courts, but federal prosecutors will not be able to seek the death penalty.

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U.S. Supreme Court Declines to Review Three Cases on Scope of Protections Against Executing the Intellectually Disabled

Posted: July 8, 2020

The U.S. Supreme Court has declined to step in to resolve festering disputes about the scope of the protections its prior rulings afford to intellectually disabled death-row prisoners. On July 2, 2020, the Court denied petitions to review three such cases, allowing death sentences in Alabama and Tennessee to stand despite the application of unconstitutionally restrictive standards in assessing a prisoner’s intellectual disability, while rebuffing Oklahoma’s efforts to undo a lower court ruling that had applied the Court’s decisions to declare an intellectually disabled prisoner ineligible for the death penalty.

The three cases address three applications of Atkins v. Virginia, the 2002 U.S. Supreme Court decision that found it is unconstitutional to execute people with intellectual disabilities. The petitions raised questions about how states have implemented Atkins and the applicability of subsequent cases, including Hall v. Florida, a 2014 case that struck down Florida’s strict IQ cutoff for finding impairments in intellectual functioning, and Moore v. Texas, which in 2017 struck down Texas’ unscientific standard for determining deficits in adaptive functioning.

In Sharp v. Smith, the Court’s decision will allow a federal appeals court’s grant of relief to an Oklahoma death-row prisoner stand. In the other two cases, Keen v. Tennessee and Smith v. Dunn, the Court’s denial of a hearing leaves in place decisions that favor the state.

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74-Year-Old ‘Golden State Killer’ Joseph DeAngelo Pleads Guilty to 13 Murders and Rapes, Gets 11 Life Sentences

Posted: July 7, 2020

Joseph James DeAngelo Jr. (pictured), the “Golden State Killer,” whom prosecutors had one year earlier held out as a “poster child for the death penalty,” has pleaded guilty to 13 counts each of murder and rape in exchange for multiple life sentences.

At a June 29, 2020 hearing, the 74-year-old former police officer admitted to a total of 161 crimes involving 48 victims, including dozens of rapes that could not be charged because the statute of limitations on prosecuting them had long ago expired. The hearing was conducted in a Sacramento State University ballroom converted into a makeshift courtroom to permit social distancing of the 150 people who attended the proceedings.

Prosecutors from the six California counties affected by DeAngelo’s crime spree — who one year earlier had used DeAngelo’s case to deride Governor Gavin Newsom’s decision to declare a moratorium on executions in California —unanimously agreed to abandon the death penalty in the case in favor of a plea deal under which DeAngelo will receive 11 life sentences. A formal sentencing hearing is scheduled for August 17.

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Kareem Johnson Becomes Nation’s 170th Death-Row Exoneree Since 1973

Posted: July 6, 2020

Former Pennsylvania death-row prisoner Kareem Johnson has been exonerated, thirteen years after being wrongfully convicted and sentenced to death by a Philadelphia jury. On July 1, 2020, the Philadelphia Court of Common Pleas completed his exoneration, formally entering an order dismissing all charges against him in his capital case. On May 19, the Pennsylvania Supreme Court had barred his reprosecution because of prosecutorial misconduct that exhibited a conscious and reckless disregard for his right to a fair trial .

Johnson is the third death-row exoneration in 2020 and the 170th death-row exoneration DPIC has confirmed in the United States since 1973. He is the third former Philadelphia death-row prisoner exonerated in the last six-and-one-half months. Walter Ogrod was exonerated in June 2020 and Christopher Williams was exonerated in December 2019.

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Coronavirus Pandemic Halts Executions, Perhaps for the Foreseeable Future

Posted: March 27, 2020

The public health crisis from the COVID-19 coronavirus pandemic has halted executions in the United States and, legal experts say, is likely to continue to do for the foreseeable future.

With nine of the eleven serious death warrants between March 15 and June 30, 2020 scheduled in Texas, the decisions by the Texas Court of Criminal Appeals (TCCA) to issue 60-day stays for the two prisoners with March execution dates suggests that other stays are likely to follow. Citing “the current health crisis and the enormous resources needed to address that emergency,” the TCCA stayed John Hummel’s March 18, 2020 execution on March 16, and three days later halted the March 25 execution of Tracy Beatty.

Viewed in concert with the TCCA’s March 13 First Emergency Order Regarding the COVID-19 State of Disaster—which directs all Texas courts to modify or suspend court deadlines and procedures during the current State of Disaster when necessary “to avoid risk to court staff, parties, attorneys, jurors, and the public”—it seems unlikely that executions would resume during that period. “When courts aren't even capable of dealing with the ordinary business, it is unrealistic to expect they'll be capable of dealing with extraordinary business,” DPIC Executive Director Robert Dunham told UPI.

The prospects of new short-term execution dates being set during the height of the pandemic also appears increasingly remote. The Wall Street Journal reports that prosecutors in Georgia, whose two-week death warrant period is the shortest in the nation, said executions are “taking a back seat to more urgent priorities.” Katie Byrd, a spokeswoman for Georgia Attorney General Chris Carr told the Journal: “The state of Georgia’s resources are focused on ensuring essential services and functions of state government in light of the current public health emergency, and it would be highly unlikely the state would proceed until such emergency subsides.”

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United Kingdom Supreme Court Rules Britain Cannot Provide Evidence to U.S. for Use in Death-Penalty Cases

Posted: March 26, 2020

In a decision that exposed the deep divide between the United States and its European allies on capital punishment issues, the Supreme Court of the United Kingdom unanimously ruled that the British government unlawfully provided information to the United States about two suspected Islamic State members without first obtaining assurances that the information would not be used to impose or carry out the death penalty.

The landmark ruling, issued March 25, 2020 in the case of Elgizouli v. Secretary of State for the Home Department, requires British authorities to withhold from the United States any evidence that the United States could use to prosecute Shafee El Sheikh and Alexander Kotey—two British Islamic State detainees accused of murdering U.S. and British captives—because U.S. officials had refused to rule out pursuit of the death penalty in their cases. “No further assistance should be given for the purpose of any proceedings” against El Sheikh and Kotey “in the United States of America,” Lord Brian Kerr wrote for the Court, “without the appropriate death penalty assurances.”

The U.S. State Department did not offer immediate comment on the ruling.

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Georgia Death-Row Prisoner Asks Supreme Court to Strike Down Law That Evades Prohibition on Executing the Intellectually Disabled

Posted: March 25, 2020

Georgia death-row prisoner Billy Daniel Raulerson, Jr. (pictured) is asking the U.S. Supreme Court to strike down a state law that, he argues, is permitting Georgia to unconstitutionally execute individuals with Intellectual Disability. On March 27, 2020, the Court is scheduled to consider whether to hear the case of Raulerson v. Warden and to review the constitutionality of Georgia’s evidentiary requirement that capital defendants prove they are intellectually disabled “beyond a reasonable doubt” before they are exempted from execution.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court declared that the execution of individuals with intellectual disability violates the Eighth Amendment proscription against cruel and unusual punishment. While it has struck down several other state evidentiary rules that had resulted in the execution of some intellectually disabled offenders, it has so far declined to intervene in cases challenging Georgia’s strict burden of proving intellectual disability. In 1988, Georgia became one of the first states in the nation to prohibit the death penalty for the intellectually disabled. Yet, 32 years later, not a single defendant charged with intentional murder has been able to meet the state’s “beyond a reasonable doubt” burden of proof.

Raulerson filed his petition challenging that standard on January 24, 2020, calling Georgia’s burden of proof an “outlier” practice that no other state used in determining intellectual disability and that Georgia itself did not use in any other facet of intellectual disability law. Raulerson’s petition drew friend-of-the-court support in briefs filed by a coalition of disability rights organizations and mental disability professionals and by the Southern Center for Human Rights and the Roderick & Solange MacArthur Justice Center. Citing Cooper v. Oklahoma, a 1996 Supreme Court decision that struck down a lesser “clear and convincing evidence” standard that Oklahoma required defendants to meet for proving incompetence and Atkins’ absolute bar to executing the intellectually disabled, Raulerson asked the Court to take his case and declare Georgia’s burden of proof unconstitutional.

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Colorado Becomes 22nd State to Abolish Death Penalty

Posted: March 24, 2020

On March 23, 2020, Colorado became the 22nd U.S. state to abolish the death penalty, as Governor Jared Polis (pictured) signed legislation repealing the state’s capital punishment statute and commuted the sentences of the state’s three death-row prisoners to life without possibility of parole. The state was the tenth to legislatively or judicially abolish capital punishment in the past fifteen years.

Colorado’s abolition of capital punishment exemplifies a nationwide trend away from the death penalty, which has been particularly striking in the West. Governors in four Western states – California, Colorado, Oregon, and Washington – halted executions in recent years. Two of those states – Colorado and Washington – went on to judicially or legislatively abolish the death penalty, and Oregon restricted the circumstances in which it can be used. No state west of Texas has carried out an execution in the past five years and fewer new death sentences were imposed in those states last year than in any year since California brought back its death penalty in the late 1970s. Public support for the death penalty throughout the U.S. is near a generational low, dropping from a high of 80% in 1994 to 56% in 2019. A majority of Americans (60%) in last year’s death-penalty poll by the Gallup organization said they prefer life without parole to the death penalty as the appropriate punishment for murder.

The repeal bill did not address the fates of the state’s three death-row prisoners: Nathan Dunlap, Sir Mario Owens, and Robert Ray. In a statement released in conjunction with the executive orders commuting their sentences, Governor Polis said his acts of clemency were not based on humanitarian concerns, but “to reflect what is now Colorado law.” The commutations, he said, “are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado.”

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Alabama Judge Denies New Trial for Toforest Johnson

Posted: March 23, 2020

A Birmingham judge has denied a new trial to Alabama death-row prisoner Toforest Johnson (pictured, center), saying he had not proven his claim that his conviction and death sentence for the killing of a sheriff’s deputy in 1995 were the product of prosecutorial misconduct.

Johnson was convicted in 1999 of murdering Jefferson County Sheriff’s Deputy William G. Hardy. Over the course of four different court proceedings, the state presented at least five different accounts of who committed the killing. No physical evidence connected Johnson to the crime, and ten alibi witnesses placed him at a nightclub on the other side of Birmingham when the shooting occurred. Johnson’s conviction rested on the testimony of one witness, Violet Ellison, who claimed she had been eavesdropping on a phone call her daughter had placed to the prison and overheard a man calling himself “Toforest” confess to the crime. Prosecutors did not disclose to Johnson’s lawyers or the jury that Ellison had been paid $5,000 in reward money for her testimony.

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DPIC Analysis: Exoneration Data Suggests Non-Unanimous Death-Sentencing Statutes Heighten Risk of Wrongful Convictions

Posted: March 13, 2020

Capital sentencing schemes that permit judges to impose a death sentence despite the votes of one or more jurors for life create a heightened risk that an innocent person will be wrongfully convicted and sentenced to death, according to a new Death Penalty Information Center analysis of death-row exoneration data.

DPIC found that one or more jurors had voted for life in more than 90% of the death-row exonerations in states that permitted judges to impose death sentences based on a jury's non-unanimous sentencing recommendations or allowed them to override jury votes for life. The three states that allowed those practices—Florida, Alabama, and Delaware—collectively account for one-fifth of all the death-row exonerations since capital punishment resumed in the United States in 1972.

DPIC was able to determine the jury vote in 30 of the 32 exonerations arising out of death sentences imposed in those states since 1972. In 28 of the 30 cases for which the jury vote is known—an astounding 93.3%—at least one juror had voted for life. DPIC was unable to find information on the jury vote for one 1974 conviction in Florida and a defendant in one Alabama case had waived his right to a sentencing jury.

"Death sentences imposed by judges without the unanimous assent of jurors have long been controversial, and for good reason," said DPIC Executive Director Robert Dunham, who conducted the analysis. "They arose as a means to disenfranchise minority jurors and they often have been applied in an arbitrary, discriminatory, and politicized manner. That they also appear to create a significantly heightened risk that innocent people will be sentenced to death should be an important additional consideration in deciding whether this outlier practice should be permitted to continue or should be abandoned."

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Winter 2020 Death Row USA: U.S. Death Row Shrinks 20% During the 2010s

Posted: March 12, 2020

The number of people on death row across the United States or facing potential capital resentencings declined by nearly 20% in the 2010s, according to a Death Penalty Information Center analysis of data from the latest quarterly death-row census by the NAACP Legal Defense and Educational Fund?(LDF).

The Winter 2020 edition of Death Row USA (DRUSA), released in March 2020, reports that 2,620 people were on death row as of January 1, 2020, down 2.6% from the 2,690 LDF reported in January 1, 2019. The death-row population dropped by 19.7% over the course of the last decade—down from 3,261 on January 1, 2010—and has fallen by 28.3% since January 1, 2000, when LDF reported 3,652 people on death row or facing capital resentencing.

The DPIC analysis found that fewer people were on death row or facing capital resentencing in the United States at the start of this decade than at the start of any year since 1992, when the December 1991 DRUSA reported 2,547 death-row prisoners or capital defendants sentenced to death or facing capital resentencing.

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Timothy Hurst, Whose Case Struck Down Florida’s Death-Penalty Statute, Is Resentenced to Life

Posted: March 11, 2020

Former Florida death-row prisoner Timothy Hurst (pictured), whose case led the U.S. Supreme Court to strike down Florida’s death-penalty statute in 2016 and spurred the elimination of non-unanimous jury verdicts for death in Florida and Delaware, has been resentenced to life without parole. Hurst was officially removed from Florida’s death row after his capital resentencing jury did not reach a unanimous sentencing recommendation on March 5, 2020.

The resentencing marked the third time prosecutors were unable to persuade a capital sentencing jury to unanimously recommend that Hurst be sentenced to death. Hurst had twice before received the death penalty under Florida’s unconstitutional death-sentencing statute – first in 1998 by a jury split 11-1 in favor of a death sentence and again in 2012 by a jury split 7-5 for death. Media reports did not indicate the jury vote in his latest sentencing trial.

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Paul Hildwin Released from Florida Prison 34 Years After Being Sentenced to Death

Posted: March 10, 2020

Paul Hildwin, whose death sentence was upheld by the U.S. Supreme Court in 1989 in a decision it overruled 26 years later, has been released from prison in Florida after spending nearly 34 years incarcerated for a murder DNA evidence now shows he did not commit.

Hildwin (pictured, center, with investigator Kate O’Shea, left, and attorney Lyann Goudie, right) agreed to a no-contest plea deal to secure his immediate release on March 9, 2020, rather than risking a third attempt by Florida prosecutors to sentence him to death. “Paul Hildwin’s unwavering determination to one day walk free enabled him to survive three and a half decades behind bars, during which he battled four bouts of cancer,” said Nina Morrison, Innocence Project Senior Litigation Counsel, who helped represent Hildwin on his appeals from 2004 to 2014. “It is outrageous that Paul was held in jail for five more years after the Florida Supreme Court ruled that the new DNA would likely lead to his acquittal. And while we hoped that he would be fully exonerated, we are thrilled that Paul will not spend another day behind bars or face another death penalty trial.”

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Media and Legal Organizations Urge Idaho Supreme Court to Require Execution Transparency

Posted: March 9, 2020

Saying that states have “no compelling need” to keep execution information secret, the American Bar Association (ABA) has asked the Idaho Supreme Court to require the state to disclose numerous execution-related documents under Idaho’s freedom of information law. On February 28, 2020, the ABA and a coalition of Idaho media organizations led by the Idaho Press Club filed amicus curiae briefs in Cover v. Idaho Board of Correction in support of an Idaho law professor’s lawsuit seeking release of public records on Idaho’s execution procedures.

In 2017, Aliza Cover, a law professor at the University of Idaho, sued the Idaho Department of Correction (IDOC) after the agency refused to produce numerous execution-related records in response to Cover’s 2017 public-records request. IDOC initially responded to her request by disclosing only a copy of the state’s execution policy manual, but failed to disclose documents including purchase orders, receipts, lot numbers, and expiration dates for execution drugs. A state trial court ruled in 2019 that IDOC must release the records about past executions and IDOC appealed. The Idaho Supreme Court is expected to hear argument in the case later this year. Both amicus groups argue that revealing the state’s sources of lethal-injection drugs is in the public interest, and that the court should rule in favor of Professor Cover.

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Philadelphia D.A. Says Death-Row Prisoner Walter Ogrod is ‘Likely Innocent’

Posted: March 6, 2020

After a review of the case by its Conviction Integrity Unit (CIU), the Philadelphia District Attorney’s office has told a state trial court that death-row prisoner Walter Ogrod (pictured) is “likely innocent,” that newly discovered evidence showed that city prosecutors had violated his right to due process, and that his conviction and death sentence should be vacated.

In briefing filed in the Philadelphia Court of Common Pleas on February 28, 2020, CIU Chief Patricia Cummings wrote that her unit’s investigation had found that the evidence used to send Ogrod to death row for the 1988 murder of 4-year-old Barbara Jean Horn was “false, unreliable and incomplete.” His conviction, she said, was a “gross miscarriage of justice,” marred by police and prosecutorial misconduct—including the presentation of junk science and false informant testimony, and withholding exculpatory evidence concerning the cause of the young girl’s death.

Ogrod has consistently maintained his innocence and has said that police coerced him into falsely admitting to beating Horn to death. His first trial was declared a mistrial, with the jury hung at 11-1 for acquittal. A juror told the Philadelphia Inquirer, “There were gaping holes in the prosecution’s case. … I didn’t put much stock in the recanted confession. I wanted to see evidence.” At his second trial, prosecutors filled those holes with what prosecutors now concede was unreliable testimony from a jailhouse informant who claimed that Ogrod had admitted to the murder.

The DA’s filing describes defects in three pillars of the prosecution’s case. At trial, prosecutors claimed Ogrod had beaten Horn to death with a weight bar. However, an autopsy performed at the time, the results of which were not disclosed to the defense, found that she actually died of asphyxiation. Subsequent forensic evaluations corroborated that finding. “Now, almost a quarter century after Ogrod was sentenced to death, relevant, reliable science has confirmed that Barbara Jean did not die as a result of the blows to her head; Ogrod’s weight bar could not have caused and did not cause those injuries; Detective Marty Devlin and Detective Paul Worrell utilized inherently coercive tactics and inaccurate information to obtain a false and unreliable confession from Ogrod; and jailhouse informants colluded to provide false and unreliable testimony against Ogrod in an effort to procure favorable treatment in their own criminal prosecutions.” In addition, new DNA testing “produced a full male DNA profile suitable for comparison” that excluded Ogrod as a contributor.

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Bipartisan Coalition in Ohio Announces Planned Introduction of Death-Penalty Repeal Legislation

Posted: March 5, 2020

A bipartisan coalition of Ohio lawmakers has announced plans to introduce legislation to end capital punishment in the Buckeye State. At a press conference at the state capitol in Columbus on March 4, 2020, State Senator Nickie J. Antonio (D–Lakewood, pictured, left) said that she and Senator Peggy Lehner (R–Kettering, pictured, right) would be jointly sponsoring a bill to abolish the death penalty and replace it with a sentence of life without possibility of parole.

The announcement comes as executions in the state are on hold over lethal-injection concerns, and the current governor and house speaker, both Republicans, have expressed reservations about continuing the use of capital punishment.

“This is not a Republican or a Democratic issue,” Antonio said, flanked by Republican co-sponsor Kristina Roegner (R–Hudson), Democratic former Gov. Ted Strickland, representatives of Ohioans to Stop Executions and Ohio Conservatives Concerned About the Death Penalty, and faith leaders, including the Ohio Catholic Conference. “No matter what a person’s reason is for supporting this legislation, we all agree that this is critical for our own collective humanity. It is our responsibility to work together across party lines and legislative chambers and move forward to end the death penalty in Ohio.”

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New Discussions With DPIC Podcast: Hannah Cox on Conservative Opposition to the Death Penalty

Posted: March 4, 2020

In the March 2020 episode of Discussions with DPIC, Hannah Cox (pictured), National Manager of Conservatives Concerned About the Death Penalty (CCATDP) speaks with Death Penalty Information Center Executive Director Robert Dunham about the continuing movement by social and political conservatives away from capital punishment, how the death penalty is out of step with core conservative values, and the key role that conservative legislators are playing in abolition efforts across the U.S.

Describing capital punishment, Cox says: “This isn’t something that values the sanctity of human life. This isn’t something that uses our resources efficiently. This is really just a failed big government program.” Those are some of the reasons, she says, that conservatives who have educated themselves about capital punishment oppose the practice.

In her conversation with Dunham, Cox explains her personal transformation on the issue. Growing up as the daughter of a Southern Baptist minister, Cox said she had been taught that the death penalty was “not only appropriate, but justified and needed.” Over time, as she learned more about the issue, she began to question how it fit with her beliefs about small government, fiscal responsibility, and the sanctity of life. “I’m a conservative because I believe in limited government,” she said. “I know that government is fallible. I know it’s prone to error. I know it’s prone to corruption.” When it comes to law enforcement and the courts, she found, the criminal justice system is subject to the same problems as any other area of government.

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Sandra Lockett-Young, Whose Case Established a Capital Defendant’s Right to Present Mitigating Evidence, Has Died

Posted: March 3, 2020

Sandra Lockett-Young (pictured, right, with Sister Helen Prejean), whose case established a capital defendant’s right to present a broad range of mitigating evidence concerning her character, background, and record and the circumstances of her offense, has died. Lockett had suffered a severe stroke in June 2019 from which she never recovered. She died in an Ohio hospice on February 26, 2020 at 65 years old.

Then 21 years old, Lockett was sentenced to death in 1975 under an Ohio law that required the court to impose the death penalty for “aggravated murder with specified circumstances,” unless certain narrow mitigating criteria were met. The law limited mitigating circumstances to three enumerated factors, that: (1) the victim had “induced or facilitated” the murder; (2) the defendant was “under duress, coercion, or strong provocation,” without which she was unlikely to have committed the murder; or (3) the murder was “primarily the product of … psychosis or mental deficiency.”

The evidence in Lockett's case established that she was, at worst, a getaway driver who did not kill anyone, did not intend for anyone to be killed, and who had no prior felony convictions. However, none of the statutory mitigating factors applied to her case and she was sentenced to death. In 1978, her case, Lockett v. Ohio, struck down Ohio’s death-penalty law and produced a landmark 7-1 U.S. Supreme Court ruling requiring states to allow capital sentencing judges and juries to consider all relevant mitigating evidence.

In language repeated in numerous Supreme Court cases over the years, a plurality of four justices declared that the sentencer in a capital case may “not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” With Justice Marshall concurring on the broader grounds that the death penalty was always cruel and unusual punishment, the Lockett doctrine became the constitutional law of the land and a key factor in narrowing the use of the death penalty nationwide.

As a result of the ruling, Lockett and approximately 100 other death-row prisoners in Ohio were resentenced to life with the possibility of parole — the alternative sentence for aggravated murder then authorized by Ohio law. Lockett-Young was released on parole in 1993 and frequently spoke against the death penalty.

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Oklahoma Prisoners Challenge New Execution Protocol in Federal Court

Posted: March 2, 2020

Less than two weeks after Oklahoma officials announced that the state would return to the same controversial three-drug execution protocol implicated in a series of botched executions in 2014 and 2015, the state’s death-row prisoners have asked a federal court to reactivate their lawsuit challenging the state’s execution process. The February 27, 2020 filing in the United States District Court for the Western District of Oklahoma called the new protocol “incomplete” and said it failed to comply with the terms of an agreement that had put executions in the state on hold in 2015. A news release accompanying the prisoner’s court filing described the new protocol as “risky” and “a recipe for another Oklahoma execution disaster.”

The federal court administratively closed the prisoners’ lawsuit in October 2015 after lawyers for the state and the prisoners reached a Joint Stipulation that Oklahoma would not seek to resume executions until the state had provided notice that it had completed an investigation into the execution failures, developed a new execution protocol, and shown that the Oklahoma Department of Corrections “will be able to comply with the express terms of the Protocol.” The motion alleges that the new protocol, announced on February 13, does not satisfy the conditions of the stipulation, stating that the mandated grand jury investigation has not been completed and the protocol itself is “incomplete.”

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Showing Coronavirus Symptoms, 'Likely Innocent' Death-Row Prisoner Seeks Emergency Medical Care

Posted: March 20, 2020

Exhibiting symptoms of the coronavirus, a Philadelphia death-row prisoner who prosecutors now acknowledge is “likely innocent” and whose potential release has been delayed by the Philadelphia courts filed an emergency motion on March 20, 2020 to obtain testing and independent medical treatment for COVID-19.

Ogrod’s coronavirus symptoms included a dry cough and a 106°F fever. The prison infirmary’s treatment had consisted entirely of providing him Tylenol and moving him in and out of isolation.

In a rare Saturday ruling, the Philadelphia Court of Common Pleas granted the treatment motion. Judge Leon Tucker wrote that the prison’s “failure to test and treat Mr. Ogrod for COVID-19 constitutes deliberate indifference to Mr. Ogrod's serious medical needs” in violation of his state and federal constitutional rights to be free from cruel and unusual punishment. The court ordered that “the Pennsylvania Department of Corrections shall immediately transfer Walter Ogrod ... to an outside hospital that is equipped to provide him with proper testing, care and treatment, including but not limited to testing for COVID-19.”

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Ohio Death-Row Prisoner Granted New Trial After Lawyer Allowed Racially Biased Juror to Sit on Jury

Posted: March 19, 2020

The Ohio Supreme Court has granted a new trial to a Cincinnati death-row prisoner whose lawyer’s inaction permitted a racially biased juror to serve in his case. In a 5-2 opinion issued February 27, 2020, the court ruled that defense counsel for Glen Bates (pictured) had been ineffective for failing to question a juror about her racial bias, challenge her for cause, or exercise one of his remaining discretionary strikes to prevent her from serving in the case, in violation of his right to an impartial jury.

Bates had been convicted and sentenced to death in 2015 for the murder of his two-year-old daughter. Evidence in the case showed she had been starved and abused over an extended time period.

Several jurors indicated in responses to a jury questionnaire that “[s]ome races and/or ethnic groups tend to be more violent than others.” One white juror indicated that she “strongly agree[d]” with that statement, then wrote in the space provided for explanation: “Blacks.” When asked whether there was “any racial or ethnic group that you do not feel comfortable being around?,” she responded: “Sometimes black people.” Even though Bates is Black, his lawyer accepted the juror without questioning her about her biases, challenging her for cause, or using an available peremptory challenge to strike her from the jury.

The majority opinion found that the seating of this juror created a constitutionally unacceptable risk that a “powerful racial stereotype—that of black men as ‘violence prone,’ infected the jury’s deliberations.” The court reversed Bates’ conviction and death sentence and directed that he be granted a new trial.

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Virginia Death Row Shrinks to 2 as Prosecutor Drops Death Penalty Against Mark Lawlor

Posted: March 18, 2020

Virginia’s death row shrank to just two prisoners on March 12 as recently elected Fairfax County, Virginia Commonwealth’s Attorney Steve T. Descano agreed to a deal to resentence former death-row prisoner Mark Lawlor (pictured) to life without parole. Lawlor was sentenced to death in 2011 for the murder of Genevieve Orange. No one has been sentenced to death in Virginia since.

A federal appeals court overturned Lawlor’s death sentence in 2018, holding that the trial judge had unconstitutionally prevented the defense from presenting expert testimony that Lawlor would not be dangerous in a prison setting. Former Commonwealth Attorney Raymond F. Morrogh, whom Descano defeated in the 2019 Democratic primary election, had personally prosecuted Lawlor and had argued that the death penalty was appropriate because Lawlor would pose a future danger to society unless sentenced to death. He nevertheless moved to bar the defense testimony and the trial court granted his motion.

Morrogh had planned to reprosecute Lawlor, if re-elected. But Descano, who ran on a platform of criminal justice reform that included a pledge to “not seek the death penalty — period, full stop,” agreed to resentence Lawlor to life. Descano called Lawlor’s life sentence “a notable outcome because it exemplifies that our criminal justice system can seek justice, find resolution, and keep our community safe while adhering to our community’s values.”

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Texas Court Issues 60-Day Stay of Execution for John Hummel in Response to Coronavirus Crisis

Posted: March 17, 2020

Responding to escalating health concerns caused by the COVID-19 coronavirus pandemic, the Texas Court of Criminal Appeals (TCCA) has temporarily halted the execution of John Hummel. In an order issued on March 16, 2020, the TCCA stayed Hummel’s execution, which had been scheduled for March 18, for 60 days, saying the delay was necessary “in light of the current health crisis and the enormous resources needed to address that emergency.”

Hummel’s attorney had asked for the stay, arguing that the health crisis has impeded last-minute investigations in the case, and that bringing execution witnesses into the prison would put vulnerable people, especially prisoners, at risk of contracting the virus. Three other executions are scheduled in Texas in the next 60 days, but it is not yet clear what action the court will take on those cases.

In a March 13 filing, Hummel’s attorney, Michael Mowla, argued that societal disruptions related to the pandemic would impede final review of Hummel’s case and that moving forward with the execution could endanger witnesses, prisoners, and prison staff. He also said that the absence of members of the execution team due to illness could increase the risk of a botched execution. Noting that courts, the governor, and the Board of Pardons and Paroles must all consider final appeals and clemency pleas, Mowla said, “Disruptions in any one of those offices—or the illness of a judge or decision maker—could render it impossible for Hummel to receive review.”

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Georgia Supreme Court Votes 9-0 for New Trial for Former Death-Row Prisoner Johnny Gates

Posted: March 16, 2020

More than forty years after he was convicted and sentenced to death by an all-white Columbus, Georgia jury for the rape and murder of a 19-year-old white woman, Johnny Lee Gates (pictured) will be getting a new trial. On March 13, 2020, the Georgia Supreme Court unanimously held that DNA contained on physical evidence that police and prosecutors had withheld for decades raised “significant doubt” as to Gates’ guilt.

The court’s 9-0 decision rejected an appeal by state prosecutors of a January 2019 trial court ruling that had set aside Gates’ convictions in the 1976 killing. DNA testing of physical evidence that police and prosecutors had falsely claimed no longer existed excluded Gates as the source of DNA on a bathrobe belt and several neckties that the killer had used to bind his victim. The decision was the culmination of decades of court proceedings that litigated Gates' innocence and intellectual capacity and systemic race discrimination by the prosecution.

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Ohio Supreme Court to Review Validity of State’s Execution Protocol

Posted: October 16, 2020

A divided Ohio Supreme Court has agreed to hear the appeals of two death-row prisoners who are challenging the legality of the state’s execution protocol. By votes of 4-3, the court on October 13, 2020 accepted for review appeals by Cleveland Jackson (pictured) and James O’Neal asserting that Ohio’s execution protocol is invalid because the Ohio Department of Rehabilitation and Correction (ODRC) adopted it in violation of state regulatory requirements.

Under Ohio law, an executive-branch agency must submit rules to the Joint Committee on Agency Rule Review (JCARR) for an assessment of whether the proposed rule falls within the agency’s statutory authority and is consistent with the legislative intent of the statute it seeks to implement. The prisoners argue that the execution protocol is a regulation that is subject to state rule-making procedural requirements, but that ODRC never submitted it to the JCARR for review. The failure to do so, they say, requires the court to strike down the protocol. The ODRC argues that the protocol was an order, not a rule, and is not subject to Ohio’s pre-review requirements.

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New DPIC Podcast: Former Illinois Governor George Ryan on Commuting Death Row and His Journey from Death-Penalty Supporter to Abolitionist

Posted: October 15, 2020

In the October 2020 episode of Discussions with DPIC, former Illinois Governor George Ryan speaks with Death Penalty Information Center Executive Director Robert Dunham about the events that persuaded him to commute the death sentences of all 167 death-row prisoners in Illinois in 2003. Ryan and Dunham delve into the Governor’s journey from death-penalty supporter as an Illinois state legislator to death-penalty opponent as Illinois governor, and discuss his new book, co-authored with Pulitzer-prize winning journalist Maurice Possley, Until I Could Be Sure: How I Stopped the Death Penalty in Illinois.

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Case Against Utah County for Retaliatory Firing of Lawyer Who Criticized Inadequate Funding of Death Penalty Appeal Moves Closer to Trial

Posted: October 14, 2020

A federal district court judge has issued an order moving closer to trial a lawsuit filed against a Utah county for the alleged retaliatory firing of a lawyer who had publicly criticized the county for refusing to adequately fund his client’s death-penalty appeal.

In an opinion published September 30, 2020, Judge Howard C. Nielson, Jr. of the U.S. District Court for the District of Utah denied a motion filed by lawyers for Weber County, Utah to dismiss a lawsuit filed by Samuel Newton (pictured) that claimed the county had violated his First Amendment right to free speech for terminating a contract to provide appellate representation to indigent defendants in response to his efforts to obtain funding for interviewing and presenting witnesses and additional briefing during his representation of death-row prisoner Douglas Lovell.

The court flatly rejected Weber County’s argument that Newton was simply an “ordinary public employee” acting in the course of his official administrative duties when the county fired him for criticizing its alleged unwillingness to adequately fund Lovell’s appeals. A defense attorney “‘speaking on behalf of the client,’” Judge Nielson declared, “is emphatically ‘not the government’s speaker.’” The county, Nielson wrote, could not “terminate an attorney whom it has engaged to represent indigent criminal defendants based on his or her official communications without further First Amendment scrutiny.”

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Federal Prosecutors Seek Supreme Court Review of Appeals Decision Overturning Death Sentence in Boston Marathon Bombing

Posted: October 13, 2020

Federal prosecutors have filed a petition in the U.S. Supreme Court asking the Court to review a federal appeals court ruling that overturned the death sentence imposed on Dzhokhar Tsarnaev (pictured) in the 2013 Boston Marathon bombing.

On October 6, 2020, the U.S. Department of Justice filed a petition for writ of certiorari challenging the July 31 ruling of the U.S. Court of Appeals for the First Circuit that Tsarnaev’s right to an impartial jury had been denied when the trial judge failed to question nine of the 12 impaneled jurors on the content of their exposure to the extensive pretrial publicity about the case. Prosecutors also challenged the appeals court’s decision that the trial court improperly excluded mitigating evidence relating to his brother Tamerlan’s involvement in a prior triple murder that would have supported Dzhokar Tsarnaev’s argument that Tamerlan was more culpable and that Dzhokhar was acting under the dominating influence of his older brother.

In August, Attorney General William Barr vowed to “do whatever’s necessary” to return Tsarnaev to the federal government’s death row. “We will take it up to the Supreme Court and we will continue to pursue the death penalty,” he said at that time.

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Supreme Court Native Sovereignty Decision Continues to Reverberate Through Oklahoma’s Death Penalty

Posted: October 12, 2020

A recent U.S. Supreme Court decision that affirmed the sovereignty of the Muscogee (Creek) Nation over tribal lands that span much of the eastern half of Oklahoma continues to reverberate through the state’s criminal justice system as prisoners sentenced for murders committed by or against Native Americans on tribal lands challenge the state’s authority to have prosecuted their cases.

The Court’s July 9, 2020 decision in McGirt v. Oklahoma already has vacated the conviction and death sentence of Muscogee citizen Patrick Dwayne Murphy (pictured) for a murder committed on lands the Court held were part of the historic Creek Reservation. On October 5, the Court granted Garry Wilson’s petition to vacate the judgment of conviction against him for a murder he says was committed within the historic boundaries of the Cherokee Nation. And in a case that could establish state-court procedures for prisoners challenging their convictions under McGirt, the Oklahoma Court of Criminal Appeals ordered the McClain County District Court to conduct a hearing to determine whether a triple murder by death-row prisoner Shaun Bosse was committed against citizens of the Chickasaw Nation on lands that are part of the historic Chickasaw Reservation.

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DPIC Statement Concerning the Death of George Floyd

In three decades of providing information and analysis on the death penalty, DPIC has covered thousands of cases, studies, and scholarly articles on the administration of the death penalty in the United States. We know that racial injustice has been a core problem in the administration of the death penalty and that it persists to the present day. The history of the death penalty is intertwined with that of vigilante and law enforcement violence against African Americans. With this knowledge, we watch the events of the last weeks and recognize familiar patterns. DPIC extends its sympathy to the families of Ahmaud Arbery, Breonna Taylor, and George Floyd, and stands in support of full justice and equality for all.

We hope that our resources can provide helpful information for individuals and organizations who are grappling with how to ensure that our criminal legal system respects our common humanity and lives up to its promise to provide equal justice for all. If you would like to learn more about the pervasive impact of race on capital punishment in the United States, please visit our website and our pages on race and the death penalty.

As Federal Litigation Continues, Ruben Gutierrez Seeks Stay of Execution, Citing Concerns About Pandemic

Posted: June 5, 2020

Texas death-row prisoner Ruben Gutierrez (pictured) has asked the Texas state courts to stay his execution because of the COVID-19 pandemic as federal litigation continues on his efforts to obtain DNA testing and to require Texas to permit him to have a chaplain present in the execution chamber if his execution proceeds.

Attorneys for Gutierrez, whose execution is currently scheduled for June 16, 2020, argue that the pandemic has made it impossible for them to perform critical investigation necessary to represent him in pending clemency proceedings and ongoing litigation. They further argue that the explosion of COVID-19 cases in the Texas prisons and in the Huntsville metropolitan area where death row is located makes an execution a public health risk.

“It would be irresponsible and against the public’s interest to conduct the necessary investigation during this pandemic,” the motion, filed on June 2, states. “Mr. Gutierrez’s team members cannot conduct the work necessary to fulfill their obligation to him without putting themselves and others at risk.”

Gutierrez, who has maintained his innocence throughout his time on death row, also has a civil rights complaint pending before a federal court seeking DNA testing of evidence in his case. On June 4, the federal district court denied the state attorney general’s motion to dismiss the complaint. Gutierrez had alleged that the Texas DNA statute, as interpreted by the state courts, unconstitutionally denies a death-row prisoner testing of “evidence that would demonstrate he is innocent of the death penalty.” He further alleged that the DNA statute is unfairly and unequally applied to those convicted under a provision of Texas law called “the law of parties” that holds an accomplice who did not kill or intend that a killing take place equally culpable for the acts of the killer.

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Arkansas Federal Court Rejects Death-Row Prisoners’ Challenge to State’s Use of Midazolam in Executions

Posted: June 4, 2020

U.S. District Judge Kristine Baker on June 1, 2020 denied a challenge brought by Arkansas death-row prisoners to the use of the controversial drug midazolam in carrying out executions. The ruling followed a two-week hearing on the issue held in May 2019. Lawyers for the prisoners had argued that midazolam does not adequately anesthetize a prisoner during an execution before the second and third drugs, a paralytic drug and a drug that stops the heart, are administered. An attorney for the prisoners said that the third drug, potassium chloride, injected without anesthesia, would feel like “having gasoline poured on you and being set on fire.”

“The Court cannot conclude that plaintiffs have proven that the Arkansas Midazolam Protocol entails a substantial risk of severe pain as a result of the use of a 500-mg dose of midazolam as the first drug in the three-drug protocol,” Baker wrote. As required under the U.S. Supreme Court ruling Glossip v. Gross, the prisoners offered alternative execution methods available to the state that they believed would be less painful, including the firing squad and pentobarbital. Baker rejected those alternatives.

Arkansas used midazolam in carrying out four executions in April 2017. Facing the expiration of its supply of midazolam, the state had scheduled an unprecedented eight executions in an 11-day period that month. However, courts halted four of the executions.

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Atlanta to Join List of Cities that Won’t Seek New Death Sentences

Posted: June 3, 2020

Atlanta is poised to become the latest in a growing number of U.S. cities in which prosecutors have pledged not to seek the death penalty or to use it more sparingly.

On May 26, 2020, at a candidate forum hosted by the Georgia Justice Reform Partnership, all three Democratic candidates in Fulton County, Georgia’s June 9 primary election for District Attorney said they would not seek the death penalty. With no Republican opponent in the general election, the winner of the Democratic primary will become D.A. for the Atlanta Judicial Circuit, which will likely not have any new death-penalty cases in the foreseeable future.

The pledge marked a major shift in policy by incumbent Fulton County D.A. Paul Howard, a former chair of the Prosecuting Attorney’s Council of Georgia. Howard has been one of the most aggressive pursuers of the death penalty in Georgia, seeking capital punishment in about 40 cases since 2005. Death sentences were imposed in two of those cases, one of which has been overturned in the courts. His two challengers — former chief deputy District Attorney Fani Willis and Christian Wise Smith, also a former Atlanta prosecutor — told the Reform Partnership that they would not seek death and would withdraw death notices in the nine capital cases currently pending in the office.

Since 2015, prosecutors have been replaced in one-third of the 32 most prolific death-sentencing counties in the country, most frequently by candidates pledging to make systemic reforms in the enforcement of the criminal laws. New District Attorneys in Philadelphia, Denver, St. Louis City and County, Portland, San Francisco, and in the Washington, D.C. suburbs of Northern Virginia have said they will not seek the death penalty.

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State Courts in Nevada, Pennsylvania Rule Prosecutorial Misconduct Bars Retrial, Exonerating Paul Browning and Kareem Johnson

Posted: June 2, 2020

State appeal courts in Nevada and Pennsylvania have barred the retrial of two former death-row prisoners as a result of prosecutorial misconduct, paving the way for their exonerations.

On January 24, 2020, months after his release from prison, the Nevada Supreme Court affirmed the decision of a Las Vegas trial court that had dismissed all charges against former death-row prisoner Paul Browning (pictured, left), formally completing his exoneration. Then, on May 19, 2020, the Pennsylvania Supreme Court declared that the retrial of Kareem Johnson after “unimaginable” official negligence and misconduct in his case would violate state constitutional protections against being twice placed in jeopardy of life and liberty. Johnson’s formal exoneration will be complete when a lower court officially grants his motion to dismiss the charges against him.

Browning becomes the 168th person exonerated from death row, and the first in 2020. Depending upon when the charges against former Philadelphia death-row prisoner Walter Ogrod are formally dismissed, Johnson could become the nation’s 169th death-row exoneree.

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One Day After Exposé of Informant Wins Journalism Award, Florida Trial Court Denies James Dailey’s Innocence Claim

Posted: June 1, 2020

A Florida judge has denied death-row prisoner James Dailey’s motion for a new trial on May 29, 2020, ruling that no new admissible evidence supported Dailey’s claim of innocence. Pinellas-Pasco Circuit Judge Pat Siracusa’s decision came just one day after journalist Pamela Colloff won a National Magazine Award for her investigation of a notorious jailhouse informant who provided key testimony against Dailey.

At a hearing in March, Dailey’s attorneys had hoped to present testimony from his co-defendant, Jack Pearcy. Pearcy and Dailey were convicted in separate trials of the 1985 murder of Shelley Boggio. After Pearcy was sentenced to life, investigators solicited testimony from several jailhouse informants who claimed that Dailey confessed to them, and Dailey was sentenced to death.

No physical evidence links Dailey (pictured) to the crime and he has continuously maintained his innocence.

Pearcy’s story about the crime has shifted over the years. He initially said Dailey helped him commit the murder, but later stated on several occasions that he alone killed Boggio. In December 2019, he gave a sworn statement saying, “I committed the crime alone.” But at the most recent hearing, he refused to testify and instead claimed his own innocence.

“Unfortunately, the trial court ruled today that it could not consider the overwhelming evidence of Mr. Dailey’s innocence, including Jack Pearcy’s repeated confessions that he committed the murder alone, because of its view concerning a number of technical legal requirements,” Dailey’s lead defense attorney, Josh Dubin, said. “We respectfully disagree with the Court’s ruling and will continue to fight for justice for James Dailey. He did not murder Shelly Boggio.”

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U.S. Supreme Court Declines to Review Texas Judicial Bigotry Case

Posted: April 10, 2020

The U.S. Supreme Court has declined to review the case of Jewish death-row prisoner Randy Halprin (pictured), who was tried and sentenced to death in Texas before a judge who made anti-Semitic and racist comments about Halprin and his co-defendants. The April 6, 2020 decision marked the second time in less than two months that the Court has declined to review a controversial Texas death-penalty case in the wake of stays of execution that left open the possibility of judicial review in the state courts.

Justice Sonia Sotomayor issued a statement in conjunction with the Court’s action, in which she called the case “deeply disturbing” but agreed that the Court should not take up Halprin’s case at this time. Justice Sotomayor noted that the Texas Court of Criminal Appeals had stayed Halprin’s execution and that “state-court proceedings are underway to address—and, if appropriate, to remedy—Halprin’s assertion that insidious racial and religious bias infected his trial.” Her statement also emphasized that the Court’s denial of review was not a ruling on the merits of Halprin’s judicial bias claim and that review in the Supreme Court was still possible if the state courts deny the claim.

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Victim’s Mother Joins Fight to Free “Likely Innocent” Death-Row Prisoner Walter Ogrod, Who Has Symptoms of Coronavirus

Posted: April 9, 2020

Saying she wanted justice for her murdered four-year-old daughter, not “a closed case with an innocent person in jail,” Sharon Fahy has joined with the Philadelphia District Attorney’s Office and defense lawyers in the fight to immediately free Walter Ogrod (pictured) from Pennsylvania’s death row.

On April 8, 2020, Fahy submitted an affidavit and a brief supporting the parties’ efforts to persuade Philadelphia Court of Common Pleas Judge Shelley Robins New to address uncontested innocence claims the parties agree entitle Ogrod to a new trial. Citing Ogrod’s continuing battle with an undiagnosed viral infection that has produced symptoms consistent with the COVID-19 coronavirus, lawyers and Philadelphia prosecutors filed a renewed motion requesting prompt disposition of issues that have been before Judge Robins New since February 28.

[UPDATE: On April 9, the Philadelphia Court of Common Pleas summarily denied the parties’ motion. In an order served by email, the court stated that a hearing on Ogrod’s innocence claims would take place as scheduled on June 5.]

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Nebraska Supreme Court Rejects Challenge to State’s Capital Sentencing Procedures

Posted: April 8, 2020

The Nebraska Supreme Court has upheld the state’s death penalty law against a claim that its death-sentencing procedure violates capital defendants’ Sixth Amendment right to a jury trial.

In a decision issued on April 3, 2020, the court unanimously affirmed a trial court ruling dismissing death-row prisoner Jeffrey Hessler’s challenge to the state’s three-judge capital sentencing process. Under Nebraska law, if a defendant is convicted of capital murder, a jury determines whether aggravating factors exist that make the defendant eligible for a death sentence. If the jury finds at least one aggravating factor, a three-judge panel weighs the aggravating and mitigating circumstances and determines the sentence of life without parole or death. Hessler (pictured) argued that Nebraska’s approach to capital sentencing was incompatible with the U.S. Supreme Court’s pronouncement in 2016 in Hurst v. Florida that the Sixth Amendment guaranteed a capital defendant the right to have a jury determine all facts necessary for a death sentence to be imposed.

The court ruled that Hessler’s argument was untimely and therefore procedurally barred, and added that under the recent U.S. Supreme Court decision in McKinney v. Arizona, there is no constitutional requirement that the jury be the ultimate sentencer in a death penalty case.

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U.S. Court of Appeals Lifts Injunction on Federal Executions, Returns Case to Lower Court for Further Litigation

Posted: April 7, 2020

A badly divided federal court of appeals has lifted a court order that had prevented the federal government from resuming executions after a hiatus of more than 16 years.

In a fractured ruling with three separate opinions and no rationale for its decision commanding a majority, a panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 2-1 on April 7, 2020 to vacate the preliminary injunction that had blocked the federal government from carrying out four executions in December 2019 and January 2020. The court remanded the case to the D.C. federal district court to decide a series of additional unresolved issues in the case.

The ruling came in a case in which federal death-row prisoners had filed a multi-pronged challenge to the legality and constitutionality of a new execution protocol issued by the U.S. Department of Justice in July 2019.

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Outlier Counties: Melvin Bonnell Seeks New Trial After Defense Discovers Evidence That Cuyahoga County Prosecutors Had Withheld for Decades

Posted: April 6, 2020

Ohio death-row prisoner Melvin Bonnell (pictured) has asked the Ohio Supreme Court to vacate his conviction and death sentence after his lawyers discovered physical evidence from his case that Cuyahoga County prosecutors had repeatedly insisted since the mid-1990s had been lost or destroyed.

Bonnell was scheduled to be executed February 12, 2020, but received a reprieve in December 2019 because of what Governor Mike DeWine described as “ongoing problems” in obtaining execution drugs. Saying that Cuyahoga County prosecutors have deliberately “deceived this Court and the lower courts” for years, Bonnell’s lawyers called on Ohio’s high court on March 30, 2020 to disqualify the county’s prosecutors from further involvement in the case because of their “egregious” misconduct and to grant Bonnell a new trial.

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Alabama Set to Execute Nathaniel Woods Despite Claims of Innocence, Police Misconduct

Posted: February 28, 2020

Nathaniel Woods (pictured, left) did not shoot Alabama police officers Charles Bennett, Carlos “Curly” Owen, and Harley Chisholm III (pictured left to right, below). But because of alleged police misconduct, incompetent representation, and Alabama law allowing death verdicts based on non-unanimous jury votes, he faces execution on March 5, 2020 for their deaths.

Prosecutors acknowledge that Woods’ co-defendant, Kerry Spencer, shot the officers in an incident in a drug house on June 17, 2004. Spencer also admits to having shot the officers, but says he did so in self-defense after they had beaten Woods during a shakedown and pointed a gun at him. Spencer also was sentenced to death—also after a non-unanimous jury vote. However, he received better representation at trial and on appeal and is still years from a possible execution.

Woods’ racially charged convictions and death sentences are tainted by claims of police corruption, intimidation of witnesses, and inadequate representation. Knowing he was not the shooter, prosecutors offered Woods a plea deal for 20-25 years, but his trial lawyer advised him not to take it, misinforming him that he could not be convicted of capital murder as an accomplice. After Woods, who is Black, turned down the offer, prosecutors claimed at trial that he had been the mastermind of a plan to kill the three white officers because he supposedly hated police.

Woods argues that he received inadequate representation at trial and during his appeals. Despite the obvious conflict of interest, he was appointed a lawyer who, until the eve of trial, was also representing Spencer. The lawyer missed filing deadlines and prematurely presented other claims without sufficient evidence, thereby barring their consideration in the future after supporting evidence had been developed. Woods was then assigned new lawyers who failed to challenge his conviction in state court.

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U.S. Supreme Court Rules that Arizona Man Unconstitutionally Sentenced to Death Is Not Entitled to Jury Resentencing

Posted: February 27, 2020

A divided U.S. Supreme Court has ruled that James McKinney (pictured), an Arizona death-row prisoner who was unconstitutionally sentenced to death by a trial judge who did not consider mitigating evidence relating to his severe Posttraumatic Stress Disorder from relentless childhood abuse, is not entitled to a jury trial to determine his sentence. On February 25, 2020, in a 5-4 opinion authored by Justice Brett Kavanaugh, the Court upheld the Arizona Supreme Court’s decision to reweigh the aggravating and mitigating evidence in the case itself and to reinstate McKinney’s death sentence.

McKinney was sentenced to death in 1993 for two murders committed during the course of separate burglaries. His trial judge found that McKinney had experienced a horrific childhood that was “beyond the comprehension of most people.” Nonetheless, the trial court ignored that evidence, bound by Arizona Supreme Court rulings that a defendant’s evidence was required to have a direct causal connection to the crime before it could be considered mitigating. Weighing the aggravating circumstances against the remaining mitigating evidence in the case, the court sentenced McKinney to death.

In June 2002, in Ring v. Arizona, the U.S. Supreme Court struck down Arizona’s death-sentencing procedures, saying they violated a capital defendant’s right to have a jury determine all facts necessary for a death sentence to be imposed. However, the Court declined to apply that ruling to cases like McKinney’s that had already completed their initial stage of appeal before Ring was decided. Subsequently, in December 2015, the U.S. Court of Appeals for the Ninth Circuit overturned McKinney's death sentence, applying long-standing Supreme Court caselaw that the “causal nexus” requirement was unconstitutional. When his case was returned to the state courts, McKinney argued that the right to a jury trial announced in Ring should apply to his resentencing. Instead, the Arizona Supreme Court reweighed the aggravating and mitigating evidence itself and reinstated McKinney’s death sentence.

The Supreme Court’s five conservative justices agreed with Arizona’s approach. Justice Ginsburg, joined by the other moderate and liberal justices, dissented.

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Tennessee Sets Execution Dates for Two Men With Issues of Innocence, Intellectual Disability, and Competency

Posted: February 26, 2020

Tennessee has set two more execution dates for 2020, directed, advocates say, at men whose cases present unresolved issues of innocence, intellectual disability, and mental competency.

On February 24, 2020, the Tennessee Supreme Court granted state prosecutors’ applications for execution dates for Byron Black (pictured, left) and Pervis Payne (pictured, right). The court scheduled Black’s execution for October 8 and Payne’s for December 3, making them the fourth and fifth executions scheduled in Tennessee for 2020.

Coming less than a week after the execution of Nicholas Sutton—whose clemency plea had been supported by seven corrections officials, five jurors, and members of the victims’ families—the warrants draw continuing attention to death-penalty practices legal experts have characterized as extremist and out of step with national trends. If Tennessee carries out all four pending death warrants, 2020 will be the first year since 1948 in which the state executed as many as five prisoners in a single year.

Attorneys for Black and Payne said both men, who have been on death row since the 1980s, are intellectually disabled. Black has an IQ of 67 and Payne has an IQ of 72. Under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia, it is unconstitutional to execute people with intellectual disability. Black is 63 years old, frail, and also has brain damage and schizophrenia. Payne is seeking DNA testing of previously undisclosed physical evidence that, his lawyers say, “completely contradicts the prosecution’s case” and they believe will prove his innocence. Both prisoners are parties to a lethal-injection challenge pending in federal court.

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Vernon Madison, Whose Case Challenged Execution of Prisoners with Dementia, Dies on Alabama’s Death Row

Posted: February 25, 2020

Vernon Madison, an Alabama death-row prisoner whose severe dementia led to a major Supreme Court decision on competency to be executed, has died in prison at the age of 69.

Madison’s case twice reached the U.S. Supreme Court on questions of the limits of federal court review of death-penalty cases and whether Alabama was entitled to execute an aging, infirm prisoner whose cognitive abilities were severely compromised. Madison’s attorneys argued that a series of strokes had left him without a rational understanding of the crime for which he was to be executed.

Madison (pictured) was one of Alabama’s oldest and longest-serving death-row prisoners, having been tried three times for the 1985 murder of a Mobile police officer. His first conviction was overturned because of racially biased jury selection. His second conviction was reversed because prosecutors presented improper expert testimony. At his third trial, the jury voted 8-4 to recommend that Madison receive a life sentence, but—in a practice no longer permitted in any state—the judge overrode the jury’s verdict and sentenced him to death. In 2015 and 2016, he suffered multiple strokes, causing brain damage, vascular dementia, and amnesia, along with several other disabilities, including blindness and an inability to walk independently. He no longer had any memory of the 1985 murder for which he was sentenced to death or an understanding of what it means to be executed.

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Report: Failure to Implement Reforms Undermines Legitimacy of Kentucky’s Death-Penalty System

Posted: February 24, 2020

Nine years after an American Bar Association (ABA) study identified systemic deficiencies in Kentucky’s administration of its death-penalty laws, a new report by past and current Kentucky public defenders charges that the Commonwealth’s failure to take any meaningful remedial action undermines the legitimacy of capital punishment in the state.

The public defenders’ Review and Report on the Status of the Recommendations Made by the Kentucky Death Penalty Assessment Team, says that “Kentucky has not taken significant steps to implement the ninety-three (93) Recommendations made [by the ABA] to ensure the death penalty is administered fairly according to national standards and protocols.” This failure, the defenders say, “calls into question the legitimacy of continuing to seek the death penalty in statutorily eligible cases in the Commonwealth of Kentucky.”

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Missouri Supreme Court Denies Stay of May 19 Execution for Brain-Damaged Man Tried Five Times for the Same Murder

Posted: May 1, 2020

In a case long marred by prosecutorial misconduct, the Missouri Supreme Court has denied a stay of execution for Walter Barton (pictured), rejecting his claims of innocence and incompetence to be executed. The court’s ruling on April 27, 2020 made no mention of Barton’s additional request to put off his execution because of public health dangers relating to the coronavirus pandemic.

If Barton’s execution is carried out as scheduled on May 19, it would be the first in the nation since the pandemic began.

Barton argued that he had presented sufficient evidence of his innocence to be granted a hearing on that issue and a related claim that the prosecution had withheld exculpatory evidence. Barton’s lawyers also presented evidence that he is not competent to be executed because of a traumatic brain injury.

The court disagreed, saying Barton had provided only “competing expert testimony” and “mere[ ] impeachment evidence” that discredited the prosecution’s case but did not establish his innocence. It further ruled that Barton was competent to be executed because he had a rational and factual understanding that he was going to be executed and why and did not suffer from a psychotic or delusional disorder impairing that understanding.

“Missouri is about ready to put to death an actually innocent man,” Barton’s attorney, Frederick Duchardt, Jr., said.

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Federal Appeals Court Denies New Orleans Prosecutors Immunity for Allegedly Threatening Witnesses with Fake Subpoenas

Posted: April 30, 2020

A federal appeals court in New Orleans has ruled that Orleans Parish, Louisiana prosecutors who illegally issued fake subpoenas to intimidate reluctant witnesses into cooperating in murder and other criminal cases are not immune from being sued for their misconduct.

The decision in Singleton v. Cannizzaro, issued April 21, 2020 by a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, upheld a federal district court’s ruling that refused to dismiss a civil rights lawsuit by witnesses and victims against parish District Attorney Leon A. Cannizzaro, Jr. (pictured) and eleven assistant district attorneys in his office.

The lawsuit, filed by the American Civil Liberties Union and Civil Rights Corps, alleges that Orleans Parish prosecutors routinely issued fake subpoenas to coerce victims and witnesses to appear for private interrogation by law enforcement, threatening them with arrest and imprisonment if they refused. The suit further alleges that prosecutors would then provide courts with falsified information to obtain “material witness” arrest warrants and jail the victims or witnesses under high bail unless they cooperated. In response, prosecutors sought to dismiss the case, arguing that their actions were shielded by prosecutorial immunity, which protects prosecutors from civil rights suits if they are acting on behalf of the state within their role.

The prosecutors’ “use of the fake subpoenas in an attempt to obtain information from crime victims and witnesses outside the judicial context falls into the category of investigative conduct for which prosecutors are not immune,” the court said.

“Today, the 5th Circuit made it clear that the prosecutors in the Orleans District Attorney’s Office should be held accountable for using fake subpoenas to threaten and coerce our clients,” said Civil Rights Corps lawyer Katherine Chamblee-Ryan. “This is a victory for each of those people whose lives they derailed, and now they can move forward with seeking legal relief for their suffering.”

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Conservative Commentator: Facing Coronavirus Budget Shortfalls, States Should Cut the Death Penalty

Posted: April 29, 2020

Conservative commentator Drew Johnson (pictured) has a suggestion for states whose budgets have been gutted by declining tax revenue and rising costs related to the coronavirus pandemic: end the death penalty.

In an April 23, 2020 op-ed for conservative news outlet Townhall, Johnson writes, “As state policymakers put programs on the chopping block in an attempt to balance budgets, there’s one failed policy that should be first to go: the death penalty.”

Johnson, a Senior Scholar at the National Center for Public Policy Research, a Senior Fellow at the Taxpayers Protection Alliance, and a member of Conservatives Concerned About the Death Penalty, supports his argument with a litany of studies on the high cost of capital punishment. He points to research from seven states, all of which would save millions of dollars by repealing the death penalty. “On average, throughout America, a death row inmate costs $1.12 million more than a general population inmate, according to a study by Susquehanna University. With 2,620 people currently on death row in America, $2.9 billion dollars could’ve been saved if those inmates had all been sentenced to life in prison without parole rather than to death,” Johnson explains.

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Arizona Death-Row Prisoner Dies of COVID-19, 7 Others Test Positive for Coronavirus

Posted: April 28, 2020

Arizona has experienced the first known COVID-19 death-row fatality and the coronavirus is spreading on the state’s death row, lawyers for the prisoners have said.

Alfonso Salazar died from the virus on April 30, 2020, seven other death-row prisoners on death row in the Arizona State Prison Complex in Florence have tested positive for coronavirus, and eleven others who have not been tested are showing symptoms of COVID-19, Dale Baich, chief of the capital habeas unit in the federal defender’s office that represents the state’s death-row prisoners told the media. That is a doubling in one week’s time from the four who tested positive for the virus and five who exhibited symptoms on April 23.

Baich expressed concern about the health and welfare of the prisoners on April 23, saying that “people who may have symptoms are not being tested.” Following Salazar’s death, he said “[t]he prison was slow to act and is not being transparent about its handling of the pandemic. Even before the COVID-19 crisis, medical care in Arizona prisons was poor and it is the subject of ongoing litigation.”

Arizona corrections officials declined to comment to the media about Salazar’s death.

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Texas Court Issues Nation’s Seventh Coronavirus Stay of Execution

Posted: April 27, 2020

The Texas Court of Criminal Appeals has stayed the May 6, 2020 execution of Edward Busby (pictured) for sixty days. Busby’s was the nation’s seventh execution postponed in the United States because of the coronavirus and the sixth in Texas.

The stay, issued on April 27, marked the 26th execution date in the first half of 2020 to be halted. By contrast, five executions have been carried out with three others — two in Texas and one in Missouri — still pending before the end of June.

The court’s stay order did not specify the grounds for its decision, saying only that “[w]e have determined that the execution should be stayed at the present time.” However, Busby’s stay motion had sought to postpone his execution because of the dangers of moving forward with his case during the COVID-19 pandemic. “The rapidly spreading coronavirus is producing an unprecedented crisis in this country, and in Texas,” wrote defense counsel Jeffrey R. Newberry. “It is affecting every aspect of daily functioning—including in the criminal justice system. Each day, each hour, increases the number of people and systems effected.”

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As Blood Spatter Evidence Causes Jurors to Question His Guilt, Missouri Prepares to Execute Walter Barton

Posted: May 15, 2020

The U.S. Court of Appeals for the Eighth Circuit has vacated a stay of execution for Missouri death-row prisoner Walter Barton (pictured) who is scheduled to be executed on Tuesday, May 19, 2020. The court’s unsigned opinion, issued on Sunday, May 17, lifted a stay of execution that had been issued May 15 by a federal district court judge. The district court said a stay was necessary to afford it time to address a petition Barton had filed that challenged his conviction and death sentence based upon new forensic evidence that contradicted controversial blood spatter testimony presented by Missouri prosecutors in his case. The appeals court wrote, “we vacate the stay of execution and remand with instructions to dismiss Barton’s petition because we see no possibility of success on the merits … of Barton’s claims.”

Barton’s petition presented affidavits from three of the jurors who had voted to condemn him to death. Having seen for the first time forensic evidence each described as “compelling,” the jurors wrote that the new evidence would have affected their deliberations in his case.

Prosecutors have tried Barton five times for the brutal 1991 stabbing death of 81-year-old Gladys Kuehler. Two times, Barton’s convictions and death sentences were overturned because of prosecutorial misconduct. Two other times, the trials ended in mistrials. As Barton’s May 19, 2020 execution date approaches, and issues of innocence, misconduct, and mental competency continue to swirl around the case, Missouri is moving forward with preparations for what would be the first execution in the United States since the COVID-19 pandemic began.

In an ongoing investigation that they say has been hampered by the public health responses to the pandemic, Barton’s defense team has attempted to interview jurors about new forensic analysis that contradicts what the defense describes as “junk science” testimony presented by a prosecution expert at Barton’s fifth trial. Pleadings filed in federal court on May 4, 2020 seeking a stay of execution and a new trial for Barton say that the defense has been able to contact three of the jurors from his 2006 trial, including the jury foreman, and show them the new evidence. Affidavits from the three jurors describe the testimony of prosecution expert William Newhouse as the “strongest evidence” against Barton and say that the “compelling” new evidence offered by the defense “would have affected [their] consideration of Mr. Barton’s guilt.” A Missouri federal district court heard argument on the stay motion via teleconference on May 14 before issuing its opinion late in the day May 15.

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Former Prosecutor, Now on Arkansas Supreme Court, Cited for ‘Bad Faith’ Destruction of Exculpatory Evidence in Death Penalty Case

Posted: May 14, 2020

The United States Court of Appeals for the Eighth Circuit has found that a former prosecutor now serving as a justice on the Arkansas Supreme Court deliberately destroyed exculpatory evidence in a case in which he had sought the death penalty. On April 29, 2020, a unanimous three-judge panel of the federal appeals court affirmed the rulings of a federal district court overturning the convictions of life-sentenced prisoners Tina Jimerson and John Brown, Jr. because of the “bad faith” misconduct of then-deputy prosecutor Robin Wynne (pictured, left). Wynne has served on Arkansas’ high court since 2015.

Jimerson and Brown had raised claims of rampant prosecutorial misconduct in the case, but the appeals court decision in their cases turned on Wynne’s suppression and destruction of a recorded statement obtained by a prison informant that would have undermined the testimony of a critical prosecution witness. The appeals court wrote that Wynne and law enforcement had “worked together to intentionally conceal [the recording’s] existence from the defense,” “effectively concealed the fact that a recorded conversation took place,” and destroyed the recording. It also wrote that Wynne provided “untruthful answers” to the defendants’ requests seeking disclosure of all recordings, actively preventing the defendants from learning about it. This “bad faith” destruction of evidence, the court said, entitled the defendants to new trials.

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Texas Appeals Court Declines to Apply Junk-Science Law to Review Death Sentence Based Upon Hypnotically Assisted Identification Testimony

Posted: May 13, 2020

The Texas Court of Criminal Appeals (TCCA) has upheld the ruling of a Dallas trial court that denied a new trial to death-row prisoner Charles Flores (pictured), whose conviction and death sentence were the product of hypnotically assisted testimony. The TCCA said its decision was “[b]ased upon the trial court’s findings and conclusions,” which the appeals court acknowledged had simply “adopted the State’s proposed findings of fact and conclusions of law.”

No physical evidence links Flores, a heavyset Latino man, to the murder and, before hypnosis, the witness had described the suspect as a thin white man. That witness’ hypnotically induced testimony is the only evidence linking Flores to the scene of the crime. “Take her out of the equation and there wouldn’t have been a conviction,” said defense attorney Gretchen Sween at a 2017 hearing.

At least 21 states ban hypnosis evidence. In Texas, at least 54 people have been convicted on the basis of hypnosis since the mid-1970s. According to an investigation by the Dallas Morning News, five of those convictions have been reversed based at least in part on the use of hypnosis. Four people convicted with hypnotically assisted witness identifications are currently on death row, and eleven others have been executed.

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Ohio Death Row Exonerees Reach $18 Million Settlement with City of Cleveland

Posted: May 12, 2020

The city of Cleveland will pay a record $18 million dollars to settle a civil rights lawsuit by three former death-row prisoners who, as a result of police misconduct, spent more than a combined 80 years imprisoned for a murder they did not commit. Kwame Ajamu (pictured, left), his brother Wiley Bridgeman (pictured, center), and Rickey Jackson (pictured, right) were convicted in 1975 of the robbery and murder of Harold Franks based on the coerced false testimony of a 12-year-old boy, Eddie Vernon. Police also fabricated evidence and withheld evidence of the men’s innocence.

The men were tried less than four months after the murder, but their exoneration took nearly four decades. Vernon, the key witness, recanted and testified that police had threatened to jail his parents if he did not cooperate. At the time of the police threats, Vernon’s mother was suffering from cancer. When they were convicted, Ajamu was 17 years old, Jackson was 18, and Bridgeman was 20. No physical evidence linked any of them to the murder.

All three men were sentenced to death, but Jackson’s death sentence was vacated and Ajamu and Bridgeman’s sentences were reduced when Ohio’s death penalty was declared unconstitutional in 1978. Ajamu and Bridgeman were both paroled prior to their exonerations, but Jackson remained in prison until 2014. At the time of his release, Jackson had spent 39 years, three months and nine days in prison, which was then the longest any American exoneree had been imprisoned.

The settlement is the largest ever awarded in an Ohio police misconduct case. Jackson will receive 40% of the settlement, and Bridgeman and Ajamu will split the rest. When the settlement was reached, Ajamu said, “Money cannot buy freedom and money certainly does not make innocence,” but explained that he and the others had agreed because “we now know that you have no other reason and no other recourse but to tell the world that you wronged three little black boys 45 years ago.”

Terry Gilbert, one of Ajamu’s lawyers, said, “Forty-five years later, we now can say that we have some sense of completion and justice in this case.” Elizabeth Wang, an attorney representing Jackson, said, “What is 39 years of your life worth? Nobody can put a number on that. No amount of money can compensate them for what they went through.” In a statement, law firm Friedman and Gilbert, which represented Bridgeman and Ajamu, said, “This lawsuit and settlement expose the egregious misconduct by police who worked up the case, fabricated false evidence, withheld evidence of innocence, and then coerced Vernon into lying on the stand at trial. The settlement also marks the City of Cleveland’s failure to monitor and train rank and file police in the 1970s, reflected in the department’s widespread culture of racist policing and misconduct with impunity.”

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New Podcast: Capital Defense Lawyer Kelley Henry on Death Penalty Litigation During a Pandemic

Posted: May 11, 2020

In the May 2020 edition of Discussions with DPIC, veteran capital defense lawyer Kelley Henry (pictured), who is representing several Tennessee death-row prisoners facing execution dates in 2020, speaks with DPIC Executive Director Robert Dunham about the unprecedented challenges of litigating death-penalty cases during the coronavirus pandemic. Henry, a Supervisory Assistant Federal Public Defender in Nashville, provides an inside view of how the extended public health emergency has affected end-stage litigation in death-penalty cases, especially the final investigations and clemency efforts that take place in the months leading up to an execution.

Henry describes the critical, in-person work that must take place to investigate innocence claims, determine a prisoner’s competency to be executed, and tell a prisoner’s story in clemency proceedings, and why it is impossible to adequately perform that work while complying with efforts to protect the public health. She also discusses the danger of performing executions during the pandemic and the reasons why states should put executions on hold to ensure the health of prisoners, witnesses, and corrections staff.

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Texas Court of Criminal Appeals Reverses Course, Takes A Second Foreign National with Intellectual Disability Off Death Row

Posted: October 2, 2020

For the second time in eight days, the Texas Court of Criminal Appeals (TCCA) has reversed course after initially rejecting a death-row prisoner’s claim of intellectual disability and has resentenced the prisoner to life. The decisions, both involving foreign nationals and both supported by local prosecutors, marked the sixth and seventh time that Texas courts have vacated death sentences imposed on intellectually disabled capital defendants since the U.S. Supreme Court in 2017 struck down the unconstitutionally restrictive definition of intellectual disability the state had been using.

On September 23, 2020, the TCCA reformed the death sentence imposed on Salvadoran national Gilmar Guevara (pictured) to a life term in prison with the possibility of parole after 40 years, finding that Guevara had “met his burden to show that he satisfies the diagnostic criteria for intellectual disability.” One week earlier, the court granted relief to Mexican national Juan Lizcano on his intellectual disability claim and resentenced him to life without the possibility of parole.

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New Podcast: Native American Rights Fund Lawyer Joel Williams on Tribal Sovereignty and the U.S. Death Penalty

Posted: October 1, 2020

In the September 30, 2020 episode of the Discussions With DPIC podcast, Native American Rights Fund senior staff attorney Joel Williams joins Death Penalty Information Center executive director Robert Dunham for a conversation about tribal sovereignty, the death penalty, and the historic U.S. Supreme Court ruling in McGirt v. Oklahoma.

Williams, a citizen of the Cherokee Nation, explains how 2020 has been a landmark year on the question of tribal sovereignty and the death penalty. He and Dunham discuss the impact of McGirt’s affirmance of the Muscogee (Creek) Nation’s sovereignty over lands within the historical borders of the Creek Reservation, including the voiding of the death sentence imposed in Oklahoma’s state courts on Creek citizen Patrick Dwayne Murphy. Williams and Dunham then discuss the federal government’s “very troubling” disregard of native sovereignty less than a month later in scheduling and carrying out the execution of Navajo citizen Lezmond Mitchell, the only Native American on federal death row, over the opposition of the Navajo government and tribal leaders across the country.

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NEW VOICES: Oklahoma Legislator Says Get the Death Penalty Right or Don’t Do It

Posted: September 30, 2020

A self-described tough-on-crime Oklahoma state representative says has serious doubts as to the reliability of the Sooner State’s death penalty.

“As taxpayers and voters,” Republican State Representative Kevin McDugle (pictured) writes in a September 5, 2020 commentary in the Tulsa World, “we are all participating in this decision to kill — each of us has a finger on the needle that injects the poison. … These are life-and-death decisions that must be made with life-and-death accuracy.”

McDugle says Oklahoma’s historically “harsh stance against violent crime” is a manifestation of its citizenry’s “keen sense of justice.” “Oklahomans want a system in which the guilty are punished and the innocent are protected,” he says. But as Oklahoma has presented a revised execution protocol to the courts in an effort to resume executions, McDugle questions: “Is that the system we have?”

Against that backdrop, McDugle worries that Oklahoma’s death-penalty system risks executing the innocent. He highlights the state’s attempts to execute Richard Glossip as the “most unsettling death penalty case in Oklahoma.” Glossip was sentenced to death in Oklahoma County, under the administration of District Attorney “Cowboy Bob” Macy, who sent 54 people to death row during a 21-year tenure that was marked by extensive misconduct.

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Kazakhstan Signs Global Treaty to Abolish Death Penalty

Posted: September 29, 2020

The Republic of Kazakhstan has joined the ranks of nations that have formally committed to abolishing the death penalty.

On September 23, 2020, in conjunction with the 75^th session of the United Nations General Assembly, Kazakhstani President Kassym-Jomart Tokayev announced that the country had signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, which commits signatory nations to abolish the death penalty. The action was taken as a step “[t]o fulfill a fundamental right to life and human dignity,” Tokayev said.

Kazakhstan is the 88th nation to become a signatory or party to the Second Optional Protocol. Geographically, the predominantly central Asian nation is the world’s ninth largest country, whose westernmost lands cross the Ural River and stretch into Europe.

Marie Struthers, Amnesty International’s Director for Eastern Europe and Central Asia, praised Kazakhstan’s decision. “This news encourages us as Kazakhstan gets closer to join the ever-growing family of nations that have left this shameful punishment behind,” she said. “Kazakhstan must now take the final step by abolishing the death penalty in law for all crimes and ratifying the Optional Protocol without reservations.”

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North Carolina Supreme Court Restores Life Sentences to Three Prisoners Whose Death Sentences Violated Racial Justice Act

Posted: September 28, 2020

The North Carolina Supreme Court has ordered that three African American death-row prisoners who had proven that their death sentences violated the state’s since repealed Racial Justice Act (RJA) must be resentenced to life imprisonment without possibility of parole. In three decisions issued on September 25, 2020, the court ruled that North Carolina had violated constitutional principles of double jeopardy and the prohibitions against after-the-fact enhancements of punishment when the Cumberland County trial court resentenced Christina Walters, Quintel Augustine, and Tilmon Golphin to death after they had established their entitlement to a life sentence under the RJA.

The court’s three decisions applied its June 5, 2020 ruling in State v. Ramseur to hold that the state legislature’s 2012 retroactive amendments that limited the grounds upon which courts could overturn death sentences and its subsequent repeal of the RJA violated state and federal constitutional prohibitions against ex post facto laws. It further ruled that its August 14, 2020 decision in State v. Robinson barred the reimposition of the death penalty after the trial court found that race had been a significant factor in their death sentences. The trial court’s findings, the court said in Robinson, established the defendant’s legal entitlement to a life sentence, amounting to an acquittal of the death penalty. North Carolina’s constitutional prohibition against twice being placed in jeopardy of death, the court said, barred the state appeals courts from reimposing a death sentence once a trial judge had issued an RJA ruling in favor of a death-row prisoner.

Walters, Augustine, and Golphin had filed their Racial Justice Act challenges before the legislature limited the grounds on which they could raise an RJA claim. They nevertheless won relief under the amended Racial Justice Act on December 13, 2012. That relief was rescinded and they were resentenced to death after the Racial Justice Act was repealed in 2013.

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California Legislature Passes Racial Justice Package Affecting Death-Penalty Practices

Posted: September 4, 2020

In the closing days of its 2020 legislative session, the California legislature passed a trio of racial justice reform bills expected to reduce the influence of racial, ethnic, and socioeconomic bias in the administration of the death penalty in the state with the country’s largest death row.

On August 28, 2020, the California senate gave its final approval to Assembly Bill 2512, which amends California’s death penalty intellectual disability statute to prohibit the use of race-based IQ adjustments in determining a defendant’s or death-row prisoner’s eligibility for the death penalty. On August 31 — the last day to consider bills on the legislature’s COVID-shortened agenda — the senate and the state assembly approved and sent to the governor amended versions of a statewide Racial Justice Act to combat racial discrimination in criminal prosecutions and sentencing and a bill that would fight racial, ethnic, religious, and gender discrimination in jury selection. The latter bill emerged from the senate at 11:40 p.m. and passed the assembly at 11:55 p.m., over efforts by prosecution lobbyists to prevent a vote before the midnight end of the legislative session.

AB-2512 applies to all death penalty cases in which a defendant or death-row prisoner alleges ineligibility for the death penalty because of intellectual disability. AB-2542, the California Racial Justice Act, applies to all criminal cases in which the trial court judgment is issued on or after January 1, 2021. AB-3070, the jury selection reform, takes effect for criminal trials beginning on January 1, 2022 and for civil trials beginning on January 1, 2026.

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DPIC Analysis: Federal Execution Spree Out of Step with U.S. Death Penalty Trends and Attitudes

Posted: September 3, 2020

At a time in which the United States as a whole and individual states and counties have continued their long-term movement away from the death penalty, the federal government’s current execution spree has established it as an outlier jurisdiction out of step with the practices of the nation as a whole.

The federal government has executed five prisoners in less than two months (click to enlarge map), with two more executions slated for September 22 and 24. No state has carried out any executions in that period and none has any planned before the scheduled end of the federal spree. Two-thirds of the way through 2020, U.S. states are on pace to carry out the fewest executions in 37 years. The federal government has already carried out more than in any year since the resumption of capital punishment in the U.S. in the 1970s.

The disconnect between the federal increase in executions and the decrease in state death-penalty usage has no parallel in modern U.S. history.

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Books: “When Truth Is All You Have” Tells Story of the Centurion Ministries’ Role in the Modern Innocence Movement

Posted: September 2, 2020

When Truth is All You Have, a new memoir by Centurion Ministries founder Jim McCloskey (pictured) tells the story of what many consider to be the birth of the modern innocence movement. The book, written with former USA Today national editor Philip Lerman, and released in July 2020, describes McCloskey’s personal and professional evolution as he created Centurion Ministries in 1983, the first-ever organization dedicated to fighting wrongful convictions in the United States.

Barbara Bradley Hagerty’s review for the Washington Post praises When Truth is All You Have as “a riveting and infuriating examination of criminal prosecutions, revealing how easy it is to convict the wrong person and how nearly impossible it is to undo the error.” Kirkus Review calls it “[a] heartfelt and heart-rending story of fighting wrongful convictions” comprised of “[c]ompassionate tales from a dedicated warrior for justice.

The book includes 12 case studies of wins and losses, including two men McCloskey believes were innocent who were executed. His exposé of wrongful convictions is intended to highlight what “a cruel, mindless, mean machine the criminal justice system can be” and how difficult it is to persuade the courts they have convicted — and in some cases condemned — an innocent person. “Once some poor innocent soul is singled out, and law enforcement is convinced of his guilt, the train has left the station,” he writes. “There is no turning back. Truth has been left behind.”

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Mississippi Supreme Court Grants New Trial to Eddie Howard, Sentenced to Death by Junk Bite-Mark Evidence

Posted: September 1, 2020

The Mississippi Supreme Court has granted a new trial to death-row prisoner Eddie Lee Howard, Jr. (pictured), finding that the combination of scientifically invalid bite-mark evidence used to convict him and new DNA evidence entitled him to a new trial in the 1992 murder and alleged rape of an 84-year-old white woman.

In an 8-1 decision on August 27, 2020, the court held that the discredited forensic testimony, “along with new DNA testing and the paucity of other evidence linking Howard to the murder, requires the Court to conclude that Howard is entitled to a new trial.”

Howard was first convicted and sentenced to death in 1994 in a trial in which he represented himself. The Mississippi Supreme Court overturned that conviction in 1997 and ordered a new trial. He was convicted and sentenced to death again in a retrial in 2000 at which forensic odontologist Dr. Michael West testified that Howard was the source of bite marks he claimed to have found on the victim’s body during a post-autopsy, post-exhumation examination of her body. Forensic pathologist Dr. Steven Hayne conducted the autopsy in the case and claimed that the victim had been beaten, strangled, stabbed, and raped. His initial autopsy report did not mention bite marks.

Represented by lawyers from the Mississippi Innocence Project and the national Innocence Project, Howard presented DNA evidence during post-conviction evidentiary hearings in 2016. The DNA testing found no evidence of semen or male DNA on the victim’s clothing, bedsheets, or body and no male DNA on the locations on the victim’s body where she supposedly had been bitten. None of the blood or other items tested contained Howard’s DNA. Male DNA found on the knife used by the murderer excluded Howard as the source. Nonetheless, the trial court upheld Howard’s conviction.

The Mississippi Supreme Court reversed. The court wrote that the type of bite-mark identification testimony given by Dr. West in this case would be prohibited under recently revised American Board of Forensic Odontology (ABFO) guidelines “reflect[ing] a new scientific understanding that an individual perpetrator cannot be reliably identified through bite-mark comparison.” Without that testimony, which the court said was central to the prosecution’s case, the remaining evidence was insufficient to sustain Howard’s conviction.

The innocence projects hailed the court’s ruling. “Mr. Howard has been in prison for almost thirty years, almost all of that time on death row, slated to be executed,” Mississippi Innocence Project director Tucker Carrington said in a joint statement issued by the innocence projects on August 28. “It’s now time to bring this case to an end — and to close another door on a disastrous era of injustice in this state.”

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Coronavirus Prison Fatalities Surpass Two Decades of Executions; COVID-19 Has Killed More California Death Row Prisoners Than the State Has Executed in 27 Years

Posted: August 31, 2020

More prisoners in the United States have died in the coronavirus pandemic than have been executed in the country in past two decades, new prison data shows, and more California death-row prisoners have been killed by the virus than have been executed in the state since 1993.

Ohio State University Law Professor Douglas Berman reported in his Sentencing Law and Policy blog that as of August 23, 2020, prisons across the United States had confirmed the deaths of 858 prisoners from COVID-19. “This considerable number is sad and disconcerting on its own terms,” Professor Berman wrote, “but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020. According to DPIC data, there were a total of 839 executions from the start of 2001 through [August 23].”

By August 30, the number of confirmed prisoner deaths in the U.S. from COVID-19 had risen to 931, according to the UCLA Law COVID-19 Behind Bars Data Project. That total equals the number of executions in the country since Alvaro Colambro was put to death in Nevada on April 5, 1999.

California’s death row has been especially hard hit by the prison system’s failure to control the pandemic. An outbreak at San Quentin State Prison has killed at least 12 death-row prisoners, as many as the state has executed since 1993. Prison officials announced on August 19 that a 13^th death-row prisoner, Dean Dunlap, died at an outside hospital in late July. The San Bernardino County Coroner’s Department will determine his cause of death. If he died from the coronavirus, the COVID-19 death-row death toll in California will equal the number of executions carried out by the state since the death penalty came back in the 1970s.

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Law Reviews—Valuing Black Lives: A Case for Ending the Death Penalty

Posted: June 26, 2020

“States still operating a capital punishment system are incapable of administering the death penalty free from racial discrimination and arbitrariness.” So argues Alexis Hoag (pictured), Practitioner in Residence at the Eric H. Holder Jr. Initiative for Civil and Political Rights at Columbia University, in an article in the Spring 2020 issue of the Columbia Human Rights Law Review.

Hoag’s article, Valuing Black Lives: A Case for Ending the Death Penalty was published in connection with the Columbia Law School’s Symposium, Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment. She writes that the death penalty violates the Fourteenth Amendment to the U.S. Constitution because, in the nearly half-century since Furman v. Georgia declared existing U.S. death-penalty statutes unconstitutional, the capital punishment laws enacted in its wake continue to systemically discriminate on the basis of the race of murder victims.

“Since its inception, the disproportionate imposition of the death penalty has denied murdered Black victims the equal protection of the laws,” Hoag writes, placing a higher value on the lives of white murder victims while undervaluing the lives of Black murder victims. “Capital punishment is supposed to be reserved for those who commit the ‘worst of the worst’ crimes. Instead, as a result of bias, prejudice and racism, it is disproportionality reserved for those charged with killing white victims.”

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Regulatory Experts Ask Supreme Court to Overturn Ruling Lifting Injunction on Federal Executions

Posted: June 25, 2020

A group of 15 administrative law experts have filed an amicus curiae brief in support of death-row prisoners seeking U.S. Supreme Court review of a challenge to the federal government’s proposed execution protocol. The brief was filed June 19, 2020 in Roane v. Barr, a case brought by federal death-row prisoners asking the Court to overturn an appellate court’s ruling that lifted an injunction on federal executions. According to the amicus brief, “This case presents a trifecta of classic administrative-law problems: The Bureau of Prisons (BOP) (1) misinterpreted a statute, (2) after having failed to engage in required notice-and-comment processes, and (3) the court below upheld BOP’s action on grounds not provided by the agency itself.”

The brief supports the prisoner’s assertion that the federal appellate court “violated bedrock principles of statutory interpretation, federalism, and administrative law.” On April 7, 2020, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a fractured 2-1 ruling lifting an injunction that had been blocking the federal government from resuming executions. Two of the judges found that the federal government’s justification for its execution protocol was inconsistent with the language of the Federal Death Penalty Act. However, a different combination of two judges upheld the protocol, construing the language of the statute in a manner that differed from the Department of Justice’s interpretation and that deviated from years of case precedent interpreting the meaning of similar statutory and regulatory terms.

The circuit court’s ruling also exempted the execution protocol from the Administrative Procedure Act’s requirement that federal regulations provide the public with notice and an opportunity to comment before an agency can promulgate a new rule. Two of the judges on the panel ruled that the notice and comment requirement applied only to “substantive” rules and that the execution protocol was merely “procedural.”

The amicus brief asks the high Court to address two questions raised by the circuit panel’s decision: “First, when does an agency rule become sufficiently ‘substantive,’ such that notice-and-comment rulemaking is necessary? Second, can a court rewrite an agency decision in an effort to uphold it?” The brief argues that the D.C. Circuit “altered both the Protocol itself and the existing frameworks for determining whether a rule is ‘procedural’ to shield the Protocol from public scrutiny. … That position is deeply misguided. The means for ending a human life is not mere house-keeping.” The experts explain that the court misapplied several tests for determining what constitutes a “procedural” rule. They also argue that the court violated an 80-year-old principle of administrative law by upholding an agency’s actions on a basis that was not actually articulated by that agency.

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Gallup Poll: Record-Low Percentage of Americans Now Find Death Penalty Morally Acceptable

Posted: June 24, 2020

The percentage of Americans who consider the death penalty to be morally acceptable has fallen to a record-low, a new national poll by the Gallup organization has found.

According to the 2020 Gallup Values and Beliefs poll, released on June 23, 2020, 54% of U.S. adults now say the death penalty is morally acceptable. (Click here to see history of poll results.) That number represents a six-percentage-point decline over the course of the last year and is the lowest in the 20-year history of the poll. The results are 17 percentage points below the 71% of respondents who said in 2006 that the death penalty was morally acceptable.

Conversely, the percentage of Americans who said the death penalty is morally wrong reached a record high at 40%.

Gallup also measured the moral acceptability of the death penalty by political ideology. The percentages of self-reported moderates and liberals who said the death penalty was morally acceptable — 56% and 37%, respectively — both were the lowest recorded since the poll began in 2001. 67% of conservatives said they consider the death penalty to be morally acceptable. Belief in the acceptability of capital punishment was down significantly among all ideological groups since 2006, when endorsement of the moral acceptability of the death penalty was at its zenith. Since then, the number of conservatives and moderates who find the death penalty morally acceptable has declined by 12 percentage points, each. The number of liberals endorsing the moral acceptability of capital punishment has fallen by 22 percentage points during that period.

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Neuroscience Experts: Brain Science Shows Texas’ Use of Future Dangerousness to Sentence Those Under 21 to Death is Unreliable, Unconstitutional

Posted: June 23, 2020

Three professional organizations and eight practitioners in the fields of neuroscience and neuropsychology have joined a Texas death-row prisoner in challenging the constitutionality of the state’s use of “future dangerousness” findings to impose the death penalty on defendants who were younger than age 21 at the time of their offense. Their brief, filed in the U.S. Supreme Court on June 19, 2020, argues based on “[t]he great weight of scientific evidence” that predictions of whether an offender under age 21 will be a future danger to society “are inherently unreliable” and should not be permitted in decisions of whether a young offender should live or die.

The neuroscience professionals include the American Academy of Pediatric Neuropsychology, the Center for Law, Brain and Behavior at Massachusetts General Hospital, and the Society for Adolescent Health and Medicine, as well eight leading experts in brain research and adolescent behavior. Their brief supports a petition filed by Billy Joe Wardlow (pictured) on June 10 that asks the Supreme Court to review whether Texas may continue to carry out death sentences “for which future dangerousness is or was used to determine death eligibility” in cases in which the defendant was younger than age 21 when the crime was committed.

Texas has scheduled Wardlow’s execution for July 8 and he has asked the Supreme Court to grant him a stay so it can consider his petition.

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DPIC Report—At least 1,300 Prisoners are on U.S. Death Rows in Violation of U.S. Human Rights Obligations

Posted: June 22, 2020

At least 1,300 prisoners have been imprisoned on U.S. death rows for more than two decades, in violation of U.S. human rights obligations, a Death Penalty Information Center report on death-row incarceration practices has found. The number represents more than half of all U.S. death-row prisoners as of January 1, 2020. Nearly one third of the prisoners whose lengthy death-row incarcerations violate their human rights are on death row in California.

DPIC also found that an additional 191 prisoners have been executed 20 or more years after having been sentenced to death and that 13 men and women who had been wrongfully convicted and sentenced to death since 1973 had spent two decades or more on death row prior to their exonerations, also in violation of U.S. human rights obligations. In all, the report documented more than 1,500 death-penalty-related human rights violations by U.S. states and the federal government.

California, with 429 prisoners on death row for 20 or more years, had the most human rights violations of any state. Florida was next with 192 death-row prisoners incarcerated more than 20 years, followed by North Carolina with 95. Florida had the most human rights violations arising out of the execution of prisoners who had been on death row for 20 or more years, with 34. Texas was next with 31, followed by Georgia with 28 and Alabama with 20.

Three of the exonerees — Paul Browning in Nevada, Henry McCollum in North Carolina, and Glenn Ford in Louisiana — had been on death row 30 years or more before they were exonerated.

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New DPIC Podcast Discusses ‘Racist Roots’ and ‘Enduring Injustice’ of U.S. Death Penalty

Posted: November 25, 2020

In the November 2020 episode of Discussions with DPIC, Gretchen Engel (pictured, left), Executive Director of North Carolina’s Center for Death Penalty Litigation (CDPL), joins Ngozi Ndulue, Senior Director of Research and Special Projects at DPIC, for a discussion of their organizations’ recent reports on race and the death penalty. This fall, DPIC released Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty. Less than a month later, CDPL released its own report, Racist Roots: Origins of North Carolina’s Death Penalty. Though the styles of the two reports are very different, both address the historical ties between the death penalty and white supremacy, slavery, lynchings, and Jim Crow.

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Gallup Poll: Public Support for the Death Penalty Lowest in a Half-Century

Posted: November 24, 2020

Public support for the death penalty is at its lowest level in a half-century, with opposition higher than any time since 1966, according to the 2020 annual Gallup poll on Americans’ attitudes about capital punishment.

Fifty-five percent of respondents to a national survey conducted between September 30 and October 15, 2020 told Gallup that they were “in favor of the death penalty for a person convicted of murder,” down one percentage point from the levels reported in 2018 and 2019. The figure tied with 2017 for the lowest support for capital punishment since 50% of Americans told Gallup in March 1972 that they were in favor of the death penalty, just months before the U.S. Supreme Court struck down existing death penalty statutes in Furman v. Georgia.

Forty-three percent of respondents told Gallup that they were opposed to the death penalty as a punishment for murder, the most since 47% of Americans expressed opposition to capital punishment in the May 1966 Gallup survey. The number was one percentage point higher than the level of opposition reported in 2019 and two percentage points higher than in 2017 and 2018.

The results followed the continuing pattern of declining death-penalty support found in the organization’s polling. In May 2020, a record-low 54% of Americans said they believed the death penalty is “morally acceptable,” and in October 2018, 49% of Americans — also a new low — said they believed the death penalty was “applied fairly.” The 2019 national survey found that a record 60% of Americans favored life imprisonment over the death penalty, which Gallup called “a dramatic shift from prior years.”

Gallup Senior Editor Jeffrey M. Jones said the pollster’s questions on death penalty trends reflect that “[m]any Americans are … conflicted on the death penalty. … [A]bout one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers,” Jones said.

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Trump Administration Presses Forward with Death Penalty Despite Election Defeat, Announcing 3 More Death Warrants and More Capital Prosecutions

Posted: November 23, 2020

Despite its defeat at the polls on November 3, the Trump administration is pressing forward with efforts to conduct a historically unprecedented number of lame duck executions and in announcing new federal capital prosecutions that it will not be in position to carry out.

After the close of business on Friday, November 20, 2020, one day after carrying out the first execution during a presidential transition period in more than a century, the Department of Justice (DOJ) announced its intention to proceed with three additional executions before Joseph R. Biden is sworn in as the nation’s 46^th president on January 20, 2021. DOJ set the execution of Alfred Bourgeois for December 11, 2020, the same week it is scheduled to execute Lisa Montgomery, the first woman to be executed by the federal government in more than 60 years, and Brandon Bernard, the youngest offender to be executed by the federal government in 68 years. It also scheduled the executions of Corey Johnson and Dustin Higgs for January 14 and January 15, 2021, less than one week before Biden takes office.

No lame duck president has carried out more than one execution in a presidential transition period since Grover Cleveland’s first presidency in 1888-1889. If all of the scheduled executions are carried out, they will be the most ever during a transition period between U.S. presidencies. According to the Espy file, a historical compilation of executions in the U.S. and its colonies, the five executions conducted between November 1884 and February 12, 1885 at the end of Chester A. Arthur’s presidency are the most in American history.

“This has been an administration that’s been historically out of step. Not just out of step with the views of America in 2020, but out of step with federal practices by administrations, Democratic or Republican, for the course of [a] century,” Death Penalty Information Center Executive Director Robert Dunham told The Washington Post.

Federal prosecutors also filed court papers in federal court in Long Island, New York on November 20 announcing their intent to seek the death penalty against Jairo Saenz in connection with seven murders they allege were committed by a local clique said to be associated with the MS-13 gang. That action followed by one day the appointment of death-penalty counsel to represent five defendants charged with capital murder by federal prosecutors in Houston.

The new announcements may be largely symbolic, for the ultimate decision on whether the cases will proceed to trial as capital prosecutions will be made by the incoming Biden administration. In the interim period, federal taxpayers will be required to pay for six sets of capitally qualified lawyers to begin the extensive and costly preparation for a federal death penalty trial that may ultimately be non-capital.

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DPIC Analysis — Intellectually Disabled Defendants of Color, Foreign Nationals Disproportionately Subject to the Death Penalty

Posted: December 4, 2020

Defendants of color and foreign nationals who are intellectually disabled are disproportionately likely to be sentenced to death, a Death Penalty Information Center analysis of cases involving intellectually disabled defendants suggests.

The review of more than 130 cases involving defendants whose death sentences have been overturned because of the constitutional prohibition against executing persons with intellectual disability found that more than 80% of intellectually disabled defendants sentenced to death are persons of color. Two-thirds of the intellectually disabled defendants sentenced to death are African American (87, or 66.4%); 19.1% (25) are white; 13.7% (18) are Latinx; and one (0.8%) is Asian. Eleven (8.4%) are foreign nationals, representing nearly 5% of all foreign nationals known to have been sentenced to death in the U.S. (Click to enlarge map.)

DPIC Executive Robert Dunham, who conducted the analysis, said “[t]he numbers further confirm what researchers have repeatedly documented in other contexts: that vulnerable defendants who belong to communities that have historically been discriminated against by the criminal legal system face an elevated risk of being wrongfully sentenced to death. The findings are especially significant now, as the federal government and several states are rushing to execute a number of intellectually disabled Black men without affording them meaningful judicial review of legal claims that, if proven, would require their death sentences to be vacated.”

On December 11, 2020, the federal government plans to execute Alfred Bourgeois, who medical experts say is intellectually disabled. His intellectual disability claim was denied by a Texas federal court that relied on medically irrelevant factors that the Supreme Court, in another case, declared unconstitutional. Bourgeois filed a petition in the U.S. Supreme Court on December 3 seeking a stay of execution so his claim can be considered based on legally and medically appropriate factors. Corey Johnson, who faces execution by the federal government on January 14, 2021, has also never been afforded a hearing on his intellectual disability claim.

Intellectually disabled death-row prisoners also face imminent execution in several states. Alabama death-row prisoner Willie B. Smith III is scheduled to be executed on February 11, 2021. A federal appeals court agreed that Smith would have been ineligible for execution had Alabama applied a constitutionally valid standard in evaluating his intellectual disability claim. However, the court allowed his death sentence to stand, saying the state court decision that rejected his intellectual disability claim had been decided before the Supreme Court declared their approach to the issue unconstitutional. Whether Smith could be executed, the court ruled, was purely “a matter of timing.” On July 2, 2020, the U.S. Supreme Court declined to hear Smith’s case.

Pervis Payne is one of 14 Tennessee death-row prisoners with active death sentences who cannot obtain judicial review of their intellectual disability claims because of defects in the state post-conviction review system. Payne, who also has a strong claim of innocence, was scheduled to be executed December 3, but received a reprieve because of coronavirus concerns.

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COVID-19 Prison Outbreaks Kill Death-Row Prisoners in Ohio and Missouri and Infect At Least 11 on Tennessee’s Death Row

Posted: December 3, 2020

New COVID-19 outbreaks on the nation’s death rows have killed prisoners in Ohio and Missouri and sickened at least 11 men on Tennessee’s death row.

James Frazier (pictured, left), 79, Ohio’s oldest death-row prisoner, died of the virus on November 19, 2020 after 15 years on death row. He suffered from dementia following a series of strokes, and his lawyers had recently filed a petition to bar his execution on grounds of mental incompetency. Richard “Ricky” Davis (pictured, right), 56, who contracted the coronavirus on Missouri’s death row in the Potosi Correctional Center, died on December 1, after sixteen days on a respirator. He had been on death row for 12 years.

Frazier was one of twelve Ohio prisoners to have died of the virus at the Franklin Medical Center where Frazier had been incarcerated since March. Since the pandemic began, 111 prisoners in Ohio have died of COVID-19, the third highest total in the nation behind Florida and Texas.

A similar outbreak has infected at least 11 death-row prisoners in Riverbend Maximum Security Institution in Tennessee. Donald Middlebrooks was the first death-row prisoner to test positive for the virus at the Riverbend facility. His lawyers have argued that “a well-documented constellation of serious, debilitating psychiatric and medical diseases” make him incompetent to be executed. Pervis Payne tested positive for the virus shortly after being granted a reprieve by Governor Bill Lee of his scheduled December 3 execution. Lee said at the time that he had issued the reprieve because of “the challenges and disruptions” caused by the pandemic. His execution was the eleventh in the country — four in Tennessee and seven in Texas — to be delayed because of concerns related to the pandemic.

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Citing State’s Lack of Execution Drugs, South Carolina Supreme Court Stays Richard Moore’s Execution

Posted: December 2, 2020

Saying that the state lacked the ability to carry out a lethal injection, the South Carolina Supreme Court has stayed the scheduled December 4, 2020 execution of Richard Moore (pictured). With no state executions scheduled for the remainder of the year, the stay means that states will carry out fewer executions in 2020 than in any year since 1983.

In an order issued November 30, the court wrote that it had “been advised the South Carolina Department of Corrections does not have, and will not be able to obtain, the drugs required for execution by lethal injection.” Because of that, the court said, it stayed Moore’s execution “until the South Carolina Department of Corrections advises the Court it has the ability to perform the execution as required by the law.”

South Carolina law requires the state to carry out executions by lethal injection unless the prisoner designates electrocution as the method of execution. The state’s lethal injection protocol uses three drugs: pentobarbital, pancuronium bromide, and potassium chloride. The South Carolina Department of Corrections (SCDC) was aware at the time the state supreme court issued Moore’s death warrant on November 6 that it did not have supplies of any of those drugs and refused to inform Moore what drug or combination of drugs it intended to use to execute him. It has asserted that it is legally entitled to execute prisoners with a single lethal dose of pentobarbital if it cannot obtain the other drugs in its protocol.

Moore’s lawyers, John Blume and Lindsey Vann, said Moore refused to participate in electing a method of execution because the state had not provided him with information sufficient for him to make an intelligent choice. His legal team issued a statement after the ruling saying that they “are pleased the execution was stayed but will continue their attempts to obtain information about how the State plans to execute him.”

Vann described the court’s decision as unprecedented, saying the court had never before had to stay an execution because of the lack of drugs.

South Carolina has not carried out an execution since 2011. Its supply of execution drugs expired in 2013 and SCDC officials have said they have been unable to obtain new drugs since that time.

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Florida Supreme Court Limits Retroactive Scope of Its Ruling Permitting Death Sentences After Non-Unanimous Jury Votes

Posted: December 1, 2020

In two long-awaited decisions that will alter the landscape of Florida’s death row, the Florida Supreme Court has limited the reach of a landmark ruling that overturned the state’s constitutional prohibition against death sentences imposed after a non-unanimous jury vote for death. The court’s January 2020 decision in State v. Poole had raised the specter that the court might rescind orders that had overturned the death sentences of more than 100 Florida death-row prisoners and granted them new sentencing trials.

However, on November 25, the court decided the cases of two defendants sentenced to death by non-unanimous juries who had been awaiting resentencing under the court’s 2016 decision, Hurst v. State. In those cases, the court unanimously rebuffed state prosecutors’ efforts to reinstate the death sentences of Bessman Okafor and Michael James Jackson without affording them the capital resentencing hearings previously ordered by the court.

In January 2020, after state trial and appellate courts had overturned the death sentences of numerous death-row prisoners, the Florida Supreme Court receded from its decision in Hurst and reinstated Mark Anthony Poole’s non-unanimous death sentence. The court subsequently applied that change in the law to other cases in which prosecutors had appealed lower court decisions that had relied on Hurst in granting death-row prisoners new sentencing trials. Prosecutors across the state then attempted to cancel the penalty-phase trials and reinstate the death sentences of prisoners who had been granted relief under Hurst but had not yet completed the resentencing process.

Rejecting the prosecutors’ position, the court stated that once an order vacating a death sentence has become final, “neither we nor the trial court can lawfully reinstate that sentence.”

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Department of Justice Issues Lame-Duck Regulations to Broaden the Range of Available Federal Execution Methods

Posted: November 30, 2020

The range of methods available to the federal government to carry out executions could be expanded under a new Department of Justice regulation published on November 27, 2020.

The regulation, one of numerous last-minute changes in federal practices adopted in the lame-duck period of the Trump Administration, permits the federal government to perform executions using any form of lethal injection “or by any other manner prescribed by the law of the state in which the sentence was imposed or which has been designated by a court” in accordance with federal death penalty statutes. The three-dozen new federal regulations encumber the incoming Biden administrations with policy changes affecting such areas as nuclear proliferation, international trade, immigration, worker safety, pollution, and oil drilling in the Arctic.

The new rule diminishes transparency into the Justice Department’s process of carrying out of executions and eliminates a previous federal regulation requiring court oversight of the implementation of a death sentence, including the setting of an execution date. The rule does not expand federal power regarding methods of execution, but formalizes through regulation the holding of an April 2020 federal appeals court decision requiring the federal government to follow “those execution procedures enacted or promulgated by states as part of their binding law.” In theory, it could allow the federal government to conduct executions by electrocution, lethal gas, or firing squad, though the use of any of those methods without the consent of the death-row prisoner would be highly unlikely as a practical matter.

The rule goes into effect 30 days after publication, rather than the customary 60 days, meaning it could apply to the three federal executions currently scheduled for January 2021, but not to the two scheduled for December 10 and 11, 2020. Announcements for the five pending federal executions specified lethal injection as the method of execution for four of the prisoners but did not specify the intended method for the scheduled January 15, 2021 execution of Dustin Higgs. Higgs was sentenced to death for an offense committed in Maryland, which does not have the death penalty.

The new execution procedures will likely be rendered moot under the administration of President-elect Joe Biden, who said during the campaign that he opposes capital punishment and will work to end the federal death penalty. A transition team spokesperson reiterated the President-elect’s opposition to the death penalty.

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As Support for Julius Jones Clemency Grows, Oklahoma Parole Board Turns to State Prosecutors on Scope of Commutation Power

Posted: June 19, 2020

As high-profile support mounts in the campaign for clemency for death-row prisoner Julius Jones (pictured), the Oklahoma Pardon and Parole Board has turned to the prosecutors who are seeking his execution — the Oklahoma Attorney General’s office — for advice on whether it can consider his petition at all. The question facing the board is whether Oklahoma law permits it to conduct clemency proceedings for a death-row prisoner who does not face an active death warrant.

Jones’ case, which raises disturbing questions of innocence, official misconduct, and racial bias, has attracted the growing backing of celebrities, athletes, and racial justice organizations who have called on the state of Oklahoma to remove him from death row. The influence of racial bias in Jones’ case has come under particular scrutiny amidst nationwide protests calling for an end to police brutality and racially biased criminal justice policies.

Jones’ application for a commutation hearing, which was submitted to the Pardon and Parole Board in October 2019, included letters of support from faith and civil rights leaders, three NBA stars with strong Oklahoma connections, an Oklahoma County commissioner, Witness to Innocence, and Oklahomans for Criminal Justice Reform. His case was profiled in the 2018 documentary series, The Last Defense; rap superstar Common and reality TV celebrity Kim Kardashian West have joined his cause; and Black Lives Matter—OKC included his commutation as one of its demands for local criminal legal system reforms.

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Utah Reaches Ten Years With No Executions

Posted: June 18, 2020

Utah has become the latest U.S. state to have gone more than a decade without carrying out an execution. The state last put a prisoner to death on June 18, 2010, when it executed Ronnie Gardner by firing squad.

Utah joins a list of 34 states — more than two thirds of the country — that either do not have the death penalty or have not carried out an execution in at least a decade. Twenty-two states no longer authorize capital punishment. Twelve of the 28 states (42.9%) that do have the death penalty have not executed anyone in at least 10 years. It has been even longer — 12 years — since Utah last imposed a new death sentence.

The decline of the death penalty in Utah is part of a sweeping trend away from the death penalty in the western United States. In the last two years, Washington and Colorado have abolished the death penalty, California has imposed a moratorium on executions and dismantled its execution chamber, New Mexico has cleared its death row, and Oregon and Arizona have both narrowed the circumstances in which the death penalty may be imposed. 2019 marked the fifth consecutive year with no executions west of Texas. The four new death sentences imposed in 2019 were the fewest in the West since California reinstated its death penalty in 1977, and fell by half from the prior record low set in 2018. Only three counties west of Texas sentenced anyone to death in 2019. With this anniversary, only two of the eleven states west of Texas — Arizona and Idaho — still have a death penalty and have carried out an execution within the last decade.

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U.S. Supreme Court Orders Texas Court to Reconsider Case of Inadequate Representation

Posted: June 17, 2020

By a vote of 6-3, the U.S. Supreme Court overturned a Texas Court of Criminal Appeals (TCCA) ruling upholding the death sentence imposed on Terence Andrus (pictured). The court held that Andrus’ counsel had provided substandard representation in the penalty-phase of his trial, and directed the TCCA to determine whether counsel’s deficient performance may have affected the jury’s sentencing decision.

The unsigned decision, issued June 15, 2020, was joined by Chief Justice John Roberts, Justice Brett Kavanaugh, and the Court’s four liberal and moderate Justices, who found that Andrus’ court-appointed lawyer had unreasonably failed to investigate “abundant” mitigating evidence that could have been presented to the jury to spare Andrus’ life. That evidence included an extensive childhood history of abuse and neglect, solitary confinement Andrus was subjected to in a juvenile facility, and a history of suicide attempts.

Andrus’ appeal lawyers presented this evidence to the Texas state courts in his state post-conviction appeals. When trial counsel provided no explanation for failing to present the evidence, the trial court declared that counsel had been ineffective and overturned Andrus’ death sentence. On appeal, the TCCA reinstated the death sentence without explanation, summarily asserting that Andrus had not met his burden of proving ineffective assistance.

In an opinion by Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, the right wing of the Court dissented from the majority’s ruling, calling the decision “hard to take seriously.”

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With Litigation Pending in U.S. Supreme Court, Federal Government Issues Four Death Warrants

Posted: June 16, 2020

With a petition for review pending before the U.S. Supreme Court on the legality and constitutionality of the federal execution protocol, U.S. Attorney General William Barr on June 15, 2020 set execution dates for four federal death-row prisoners, including three who are involved in the pending case. The warrants scheduled three executions over a five-day period in July and a fourth execution in late August. No federal executions have been carried out since 2003, and the five execution dates that had been set for December 2019 and January 2020 were halted by litigation related to the proposed method of execution.

The prisoners’ appeal of a federal appellate court decision vacating an injunction against the use of the execution protocol is still pending before the U.S. Supreme Court.

The four prisoners scheduled for execution are Daniel Lewis Lee (July 13), Wesley Ira Purkey (July 15), Dustin Lee Honken (July 17), and Keith Dwayne Nelson (August 28). All but Nelson had previously been scheduled for execution in December or January. In its news release announcing the execution dates, the Department of Justice indicated it had selected for execution four prisoners “who were convicted of murdering children,” a crime that is typically left to the states to punish.

The news release described the decision of the U.S. Court of Appeals for the D.C. Circuit that vacated a lower injunction against executions as having “clear[ed] the way for the federal government to resume capital punishment after a nearly two-decade hiatus.” The release omitted any reference to the continuing litigation over the legality of the prior death warrants. It also asserted that the four prisoners “have received full and fair proceedings under our Constitution and laws. We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”

In fact, the victims’ family in at least one of the cases has long opposed carrying out the death sentence in their case and litigation remains active in several of the cases. Attorneys for the prisoners said that the cases are emblematic of systemic problems in the administration of the federal death penalty, raising issues of junk science, mental illness, ineffective representation, lack of appellate review, and arbitrariness.

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Birmingham D.A. Files Brief Supporting New Trial for Death-Row Prisoner Toforest Johnson

Posted: June 15, 2020

Jefferson County District Attorney Danny Carr has filed an amicus brief supporting the grant of a new trial to Toforest Johnson (pictured, center, with family members), sentenced to death for the murder of an Alabama sheriff’s deputy. In a pleading filed in the Jefferson County Circuit Court, Carr wrote that, “A prosecutor’s duty is not merely to secure convictions, but to seek justice,” and that duty, he said, “requires intervention in this case” on Johnson’s behalf.

Carr urged that “a court of competent jurisdiction” should grant Johnson a new trial, outlining what he regarded as serious defects in Johnson’s trial. He noted that during the course of multiple trials of Johnson and co-defendants, prosecutors had repeatedly changed their theory as to who shot the deputy, relied upon a witness who repeatedly admitted having lied, and failed to disclose evidence that the witness had been paid for her cooperation, and that defense counsel failed to present testimony from multiple alibi witness who would have said that Johnson was elsewhere at the time of the murder.

Carr indicated that he had conferred with the original lead prosecutor from Johnson’s trial, who also “expressed concerns about this case and supports this request.” That prosecutor, Jeff Wallace, had previously expressed “grave doubts” about the case, and testified in 2014 that he did not think the evidence against Johnson was strong.

Johnson has maintained his innocence throughout his two decades on death row, but Carr’s brief did not take a position on Johnson’s guilt or innocence.

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Commentary: Tennessee’s Commitment to Racial Justice Tested as Attorney General Continues to Push for Execution in Case Rife with Racial Bias

Posted: August 21, 2020

Declaring that “[r]acism still exists and has no place in society,” the Tennessee Supreme Court on June 25, 2020 directed its Access to Justice Commission (AJC) to create “a new initiative to identify and eliminate barriers to racial and ethnic fairness and justice.” The court’s pronouncement, at the height of the racial justice protests that swept the nation following the murder of George Floyd by a white Minneapolis police officer, was meant to signal its concern about racial bias in the legal system.

For these words to be more than symbolic, commentators have responded, they must be backed up by action. And, they say, redressing the racial discrimination that sent Abu-Ali Abdur’Rahman to Tennessee’s death row is a good place to begin.

In a July 22 commentary in Tennessee Lookout, Dr. Sekou Franklin (pictured), a professor of political science and international relations at Middle Tennessee State Univesity, detailed what he called “a troubling pattern of prosecutorial misconduct and racial bias” that infected Abdur’Rahman’s trial. One week later, in a guest column in The Tennessean, veteran defense lawyer Jim Thomas assailed the continuing “extraordinary efforts” being made by Tennessee Attorney General Herbert Slatery to undo a court-approved plea deal that would remove Abdur’Rahman from death row because of prosecutorial misconduct, ineffective defense representation, and the unconstitutional race-based use of jury strikes to exclude Black jurors from serving on the case.

The goal of those efforts, Thomas wrote, is simply “to kill a Black man whose trial was indisputably tainted by racial discrimination in the jury selection process.” Writes Franklin, “If the AJC is committed to addressing racial justice, it can start with capital punishment and the ongoing legal dispute over Abu-Ali Abdur’Rahman’s … death penalty conviction.”

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As Courts Deny Execution Challenges, Native Americans Nationwide Call for Clemency for Federal Death-Row Prisoner Lezmond Mitchell

Posted: August 20, 2020

As federal courts in Washington, D.C. and California declined to halt the execution of Lezmond Mitchell, the National Congress of American Indians, thirteen tribal governments, and more than 230 members from more than 90 U.S. tribes joined Navajo Nation President Jonathan Nez in asking President Donald Trump to commute the death sentence of the sole Native American on federal death row. Native-American commentators also called on the president to spare Mitchell’s life, saying his execution against the wishes and over the objections of the Navajo Nation and the victims’ family was an affront to the sovereignty of all Native-American nations.

The federal government announced in July 2019 that it intended to execute Mitchell, a Navajo citizen convicted of murdering a Navajo woman and child on Navajo lands. However, Mitchell’s execution was stayed by a federal appeals court that was considering a claim that his death sentence was tainted by racial bias. The government issued a renewed notice of execution for Mitchell shortly after carrying out three other executions in July. The federal government has never before executed a Native American for an intra-tribal offense on tribal lands.

On July 31, Mitchell’s lawyers, with the backing of the Navajo Nation government, filed a clemency petition asking President Trump to spare Mitchell’s life. On that same day, President Nez and Vice President Myron Lizer wrote to Trump urging commutation of Mitchell’s sentence.

“The United States Department of Justice sought the death penalty against Mr. Mitchell despite the Navajo Nation’s public opposition, against the express wishes of the victim’s family, and ostensibly against the recommendation of the U.S. Attorney for the District of Arizona,” the letter said. A commutation, they wrote, “honors our religious and traditional beliefs, the Navajo Nation’s long-standing position on the death penalty for Native Americans, and our respect for the decision of the victim’s family.” Favorable consideration of the tribe’s request, they wrote, would help the Navajo Nation “to move forward in our trust of our federal partners and to continue to work on the importance of protecting our People.”

The National Congress of American Indians (NCAI) — the nation’s oldest and largest organization representing American Indian and Alaskan Native tribal interests — joined Mitchell’s clemency efforts on August 18. “The [Navajo] Nation has never opted in to the federal death penalty and has consistently opposed capital punishment on cultural and religious grounds,” NCAI President Fawn Sharp wrote on behalf of the organization.

“The U.S. government’s decision to pursue a death sentence in Mr. Mitchell’s case contravenes both the Navajo Nation’s sovereign prerogatives, as recognized by Congress, and the federal policy of tribal self-determination in general,” Sharp said. “If his execution is allowed to proceed, it will set a dangerous precedent.” Commutation, she wrote, would be “[c]onsistent with the position of the Navajo Nation, and with your Administration’s stated position of respect for tribal self-determination.”

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In Move Raising Race, Gender, and Political Issues, Missouri Governor Seeks Authority for Attorney General to Prosecute St. Louis Homicide Cases

Posted: August 19, 2020

In a political maneuver that further injected issues of race, gender, and political disenfranchisement into local law enforcement policy, Missouri’s Republican Governor Mike Parson has asked state lawmakers to grant Republican state attorney general Eric Schmitt authority to prosecute murder cases in the city of St. Louis. The proposal targeted cases that are currently under the exclusive purview of Democratic St. Louis City Circuit Attorney Kimberly Gardner, the state’s only Black female circuit prosecutor, and escalated the clash between the reform prosecutor and the hard-line conservative governor.

Parson sought to have legislators insert his “concurrent jurisdiction” plan into a omnibus bill under consideration in a special legislative session on crime. Instead, the proposal drew criticism from legislators and local prosecutors that slowed legislative consideration of other parts of the governor’s crime plan. Although Parson claimed the bill was intended to reduce the murder rate in St. Louis, the governor had neither consulted with Gardner to see if she needed assistance nor provided her advance notice of the plan.

“[I]t is clear that this legislation is not actually about addressing crime,“ Gardner said in a statement. “[I]nstead it serves as a vehicle to interfere with the clear discretion of a democratically elected local prosecutor. This allows the Governor and his cronies to make a mockery of judicial checks and balances and demolishes any notion of a free and independent judicial system,” she said.

While not specifically addressing Parson’s proposal to take authority from Gardner, the Missouri Association of Prosecuting Attorneys on August 12 issued a statement signed by the association’s executive board that supported the autonomy of local prosecutors. “Holding true to the position we as an association have held for decades,” the statement said, “[we] stand united against any proposal to vest any new original or concurrent jurisdiction with the Attorney General. … The best control is local control,” the prosecutors’ association said.

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Nebraska Legislature Passes, Governor Vetoes Execution Transparency Bill

Posted: August 18, 2020

Nebraska Governor Pete Ricketts has vetoed a bill that would have increased transparency in the state’s execution process. LB 238, which passed the state’s unicameral legislature on August 13, 2020 by a vote of 27-10 with 12 members present but not voting, would have allowed witnesses to see the execution from the moment the prisoner enters the death chamber until the prisoner is declared dead or the execution is halted.

In his August 17 veto message to the legislature, Ricketts claimed that the bill would have “add[ed] additional burdens to the process of carrying out the death penalty in Nebraska” and “would mandate changes to the [state’s] current execution protocol.” He said state law protects the identity of execution employees and that “[w]earing a mask or disguise in an attempt to conceal their identity could impede necessary procedures if the staff member’s eyesight is hindered or blocked.” Wearing personal protective equipment during the course of an execution “would make a mockery of the execution and show a complete lack of respect for the inmate, the inmate’s family, and for family of the victim,” Ricketts wrote.

The bill’s sponsor, Senator Patty Pansing Brooks, called Ricketts’ action “highly disturbing” and said “it fundamentally betrays the public’s right to accountability and transparency in our State government.” In a statement released in response to the veto, she wrote: “LB238 adds no ‘additional burdens,’ as spuriously claimed by the Governor.” All it would have done, she said, is “prevent[ ] the Department of Corrections from once again closing the curtain on an execution and blocking the view of witnesses who are statutorily allowed to be present.”

She said Ricketts’ complaints about disclosing the identity of execution team members was “blatantly bogus because under current law and LB238, the executioner’s identity was and would have remained protected.”

ACLU of Nebraska Executive Director Danielle Conrad said Governor Ricketts’ veto “was contrary to … Nebraska[’s] proud tradition of open government.” She said Ricketts’ action “will allow state officials to operate in the shadows, carrying out the death penalty without ensuring that witnesses can observe this grave and irrevocable act. Bottom line, the people have a right to know how the state takes a person’s life.”

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North Carolina Supreme Court Restores Racial Justice Act Ruling Taking Marcus Robinson Off Death Row

Posted: August 17, 2020

In a ruling imbued with historic significance, the North Carolina Supreme Court has for the first time acknowledged pervasive discrimination in the state’s use of capital punishment and vacated a death-row prisoner’s death sentence under the since-repealed Racial Justice Act (RJA).

By a vote of 4-3, it held that Cumberland County Superior Court Judge Gregory Weeks’ April 2012 finding that race was a substantial factor in sentencing Marcus Robinson to death was tantamount to an acquittal of the death penalty, and that the reimposition of his death sentence after control of the legislature changed hands and legislators retroactively repealed the RJA violated his rights under the North Carolina state constitution.

“Today, we are not asked to pass on the wisdom of repealing a statutory mechanism for rooting out the insidious vestiges of racism in the implementation of our state’s most extreme punishment. That decision is for the General Assembly,” Chief Justice Cheri Beasley wrote for the majority. “Instead, this Court must decide whether the North Carolina Constitution allows for that repeal to be retroactive. We hold that it does not. … Once the trial court found that Robinson had proven all of the essential elements under the RJA to bar the imposition of the death penalty,” she wrote, “[he] was legally entitled to the imposition of a life sentence.”

Lawyers for Robinson and the more than 140 death-row prisoners who have filed Racial Justice Act claims in the state, hailed the ruling. “This is one of the most important decisions I’ve ever seen from our state Supreme Court,” said Gretchen Engel, Executive Director of North Carolina’s Center for Death Penalty Litigation. “It seems that Justice Beasley and her colleagues intend to make good on the promise that no person should be executed if race was a factor in their death sentence.”

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Legal Scholarship: A Proposal for Greater Prosecutorial Accountability

Posted: October 30, 2020

To rein in the social and economic costs caused by the overly aggressive use of the death penalty by prosecutors, a California legal scholar is proposing a plan he believes will reduce miscarriages of justice and increase prosecutorial accountability.

In Shrinking the Accountability Deficit in Capital Charging, a new chapter in the 2020 Oxford Handbook of Prosecutors and Prosecution, UCLA law professor Sherod Thaxton (pictured) argues that to temper the unfettered discretion local prosecutors now enjoy in capital charging decisions, states should establish advisory boards to issue opinions on whether the death penalty should be pursued in a particular case. If the prosecutor decides to seek death despite an adverse advisory recommendation, Thaxton proposes shifting the financial costs associated with the case to the local jurisdiction as a means to hold prosecutors financially accountable for their decisions.

Professor Thaxton begins his analysis by noting that the high statewide costs of capital punishment are driven disproportionally by overly aggressive use of the death penalty by a small number of outlier jurisdictions, despite “sharp criticism from both legal analysts and officials in every branch of government.” These outlier jurisdictions, he says, contribute to most of the death sentences and executions in the country, but also have higher rates of error and contribute to higher costs for the administration of justice. In addition, Thaxton says, the overpursuit of the death penalty “may increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non-capital defendants.”

Given the outsized impact of these outlier jurisdictions, Thaxton argues, “[d]iscouraging the overly aggressive use of the death penalty by prosecutors may be the most effective (and efficient) way to reduce the overall prevalence of error in capital charging-and-sentencing systems, as well as unnecessary expense.”

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Human Rights Organizations: Saudi Arabia’s Claims to Have Banned the Death Penalty for Juveniles are Belied by the Kingdom’s Actual Practices

Posted: October 29, 2020

The Kingdom of Saudi Arabia continues to use the death penalty against people accused of crimes committed as juveniles, despite a royal decree claiming to ban that practice, human rights organizations and defense lawyers have charged.

On October 19, 2020, the European Saudi Organisation for Human Rights issued a statement saying that thirteen prisoners still faced the death penalty in the kingdom for alleged crimes committed as juveniles. The following day, citing “glaring exceptions” in the royal decree, Human Rights Watch warned that eight Saudi men remained at risk of execution for “protest-related” acts engaged in while they were minors. The men were sentenced to death on “charges that do not resemble recognizable crimes,” the rights group said, including “seeking to destabilize the social fabric by participating in protests and funeral processions,” “chanting slogans hostile to the regime,” and “seeking to incite discord and division.”

In April 2020, Saudi Arabia carried out the 800^th execution under the reign of King Salman bin Abdulaziz. At the same time, Amnesty International issued its annual global report on the death penalty, detailing the record number of executions in Saudi Arabia in 2019 and the rising political abuse of the death penalty throughout the Middle East.

Facing global criticism, King Salman responded with a royal decree asserting that the country would no longer apply the death penalty to individuals who were younger than age 18 when their alleged crimes occurred. Instead, the King said, offenders faced a maximum sentence of ten years at a juvenile facility. Although the kingdom’s Human Rights Commission has said the decree would be applied retroactively, it has not yet been published in official form.

“Saudi spin doctors are marketing judicial reforms as progress while prosecutors appear to blatantly ignore them and carry on as usual,” said Michael Page, deputy Middle East director at Human Rights Watch. “If Saudi Arabia is serious about reforming its criminal justice system, it should start by banning the death penalty against alleged child offenders in all cases.”

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California Governor, 6 District Attorneys File Briefs Saying State’s Death Penalty is Arbitrary and ‘Infected by Racism’

Posted: October 28, 2020

Calling California capital sentencing proceedings “infected by racism,” Governor Gavin Newsom (pictured) has filed a brief in the California Supreme Court supporting a death-row prisoner’s claim that capital punishment as currently practiced in the state violates the California penal code and the state constitution.

In a news release, the Governor’s office said the friend-of-the-court brief, filed on October 26, 2020 in the capital appeal of Don’te Lamont McDaniel, was “the first time in California history that a sitting governor has filed an amicus brief calling attention to the unfair and uneven application of the death penalty.” On the same day, an alliance of progressive prosecutors announced that six current and former California district attorneys had also filed an amicus brief supporting McDaniel, arguing that California’s death penalty procedures have resulted in systemically arbitrary sentencing, in violation of the state’s constitution.

“Amid our nationwide reckoning on racism and historical injustice,” Newsom said in a statement accompanying the filing, “the State of California is continuing to address the failings in our criminal justice system. California’s capital punishment scheme is now, and always has been, infected by racism.”

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In Partisan Vote, Amy Coney Barrett Confirmed as Ruth Bader Ginsburg’s Replacement on U.S. Supreme Court

Posted: October 27, 2020

Amy Coney Barrett has been confirmed as a justice of the Supreme Court of the United States, filling the vacancy created by the death of the late Justice Ruth Bader Ginsburg. Shortly after her confirmation by the U.S. Senate on October 26, 2020, Justice Clarence Thomas administered the oath of office to Barrett in an outdoor ceremony on the South Lawn of the White House.

Barrett’s confirmation came just 30 days after her nomination, the shortest period between nomination and confirmation of a Supreme Court justice since the unanimous confirmation of Justice John Paul Stevens in 1975. But unlike the broad consensus accompanying Stevens’ ascension to the Court, Barrett was confirmed by a 52-48 party-line vote amidst charges of court-stacking by conservative lawmakers. Senator Susan Collins of Maine was the only Republican to vote against the confirmation.

Barrett is the third justice President Donald Trump has appointed to the Supreme Court, solidifying a 6-3 conservative majority on the Court and shifting the Court farther to the right. The president lauded the confirmation — which came just eight days before a presidential election in which court challenges to mail and absentee voting, voter suppression, and voter intimidation are expected to reach the Court — calling it “a momentous day for America.”

Democrats and social justice advocates blasted the confirmation as a subversion of American democracy, contrasting it with the Republican-controlled Senate’s refusal to consider President Barack Obama’s nomination of Merrick Garland following the death of Justice Antonin Scalia in February 2016. At that time, Senate Majority Leader Mitch McConnell (R-KY) justified blocking Garland’s appointment on the grounds that the decision on who fills an election-year Court vacancy should be left to the voters.

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Orthodox Church Patriarch Calls Death Penalty Incompatible with Christian Beliefs

Posted: October 26, 2020

The leader of the world’s second largest Christian denomination has joined with the Roman Catholic Church in declaring the death penalty fundamentally incompatible with Christian teachings. In an interview with Vatican News on October 20, 2020, Ecumenical Patriarch Bartholomew of Constantinople, the head of the Eastern Orthodox Church, called opposition to the death penalty “the logical and moral consequence” of adherence to Christian principles of human dignity.

The Orthodox patriarch’s comments came during a visit to Rome for a prayer meeting for peace with Pope Francis. Asked for his views on the Roman Catholic pontiff’s recent papal encyclical, Fratelli Tutti: on Fraternity and Social Friendship, Patriarch Bartholomew praised the pope’s writings, saying “We completely agree with the call-challenge of His Holiness to abandon the indifference or even cynicism that governs our ecological, political, economic and social life in general.” The patriarch called on all people to work to create a world of “a united human family in which we are all brothers and sisters without exception.”

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