Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective concerns regarding the arbitrary and discriminatory application of the death penalty have indeed been adequately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and consideration of this critical question."
In an expansion of their stance opposing nurse participation in executions, the American Nurses Association (ANA) announced on February 21, 2017 that the organization now for the first time opposes capital punishment itself. "Capital punishment is a human rights violation, and ANA is proud to stand in strong opposition to the death penalty," ANA President Pamela F. Cipriano said. "All human beings, regardless of their crimes, should be treated with dignity. For those states where capital punishment is currently legal, the American Nurses Association will continue to provide ethical guidance, education, and resources for nurses and other health care providers dealing with these ethical dilemmas." The ANA had long opposed nurses participating in the death penalty in any role, adopting that position in 1983. “The drafters of the subcommittee were initially supporters of the death penalty until they started doing research," Liz Stokes, the senior policy advisor for the ANA Center for Ethics and Human Rights, said. But as they studied the issue, she said, they were moved by the body of evidence showing problems in the way it was administered. Ultimately, the ANA’s board of directors unanimously adopted the new position. The ANA statement offers nine reasons for the association's opposition to the death penalty, including racially and geographically biased application, the risk of executing innocent people, botched executions, and high costs. The new position aligns with the International Council of Nurses, which "considers the death penalty to be cruel, inhuman and unacceptable," and reflects a growing consensus among medical organizations that participation in executions by medical professionals is unethical. The American Medical Association, American Board of Anesthesiology, and American Pharmacists Association, among others, have discouraged or forbidden their members from participating in executions and American pharmaceutical manufacturers have adopted policies seeking to prevent misuse of their medicines as execution drugs.
Saying that the "law punishes people for what they do, not who they are," the Supreme Court on February 22, 2017, granted relief to Duane Buck (pictured, right), a Texas death-row prisoner who was sentenced to death after his own lawyer presented testimony from a psychologist who told the jury Buck was more likely to commit future acts of violence because he is black. Writing for the six-Justice majority, Chief Justice Roberts (pictured, left) said that "[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle." Buck's case turned on the legal question of whether his lawyer had provided ineffective assistance. The Court left no doubt on the issue. Chief Justice Roberts wrote that "[n]o competent defense attorney would introduce such evidence about his own client." Despite counsel's deficient representation, the lower federal courts had refused to intervene, asserting that the references to race in the case had been brief and would have had only minimal, if any, effect on the jury's sentencing decision. The Chief Justice squarely rejected that conclusion, writing: "when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." The Court explained that stereotyping black men as somehow more violence-prone than others is a "particularly noxious strain of racial prejudice." Buck's attorney, Christina Swarns, who had argued the case before the Court in October 2016, said “Today, the Supreme Court made clear that there is no place for racial bias in the American criminal justice system.” The decision, she said, reaffirms "the longstanding principle that criminal punishments—particularly the death penalty—cannot be based on immutable characteristics such as race.” Justice Clarence Thomas, joined by Justice Samuel Alito, dissented.
In a retreat from one of its prior decisions, the Florida Supreme Court ruled on February 20 that prosecutors could move forward with death penalty trials under Florida's constitutionally flawed capital sentencing statute, provided the trial court specifically instructs the sentencing jurors that they must unanimously find all facts that could make a defendant eligible for the death penalty and that they must unanimously recommend death before the trial judge may impose a death sentence. In January 2016, the U.S. Supreme Court struck down Florida's death penalty law in Hurst v. Florida because the trial judge, rather than the jury, was responsible for finding critical facts necessary to impose a death sentence. In response to that decision, the Florida legislature amended the state's capital sentencing statute to require juries to unanimously find at least one aggravating circumstance, but allowed the trial judge to impose a death sentence if at least 10 of 12 jurors recommended death. In October 2016, the Florida Supreme Court ruled in Perry v. State that this new sentencing statute violated the state and federal constitutions because it unconstitutionally permitted the judge to impose death despite a nonunanimous sentencing recommendation by the jury. At that time, the court declared that the sentencing law "cannot be applied to pending prosecutions." The latest ruling, in the cases of Patrick Albert Evans v. State of Florida and Juan Rosario v. State of Florida, reverses that decision. Legislators have proposed bills to revise the law and bring it in line with the court's October ruling. The latest decision allows death penalty cases to proceed even before such legislation is passed, but courts will only be allowed to impose a death sentence if the jury first unanimously agrees that it is the appropriate sentence.
In his newest book, The Death Penalty As Torture: From the Dark Ages to Abolition, John Bessler chronicles the historical link between torture and the death penalty from the Middle Ages to the present day and argues that both are medieval relics. The book, released on February 17, 2017, asserts that capital punishment is itself a form of torture, despite modern legal distinctions that outlaw torture while permitting death sentences and executions. Bessler draws on the writings of philosophers such as Cesare Beccaria and Montesquieu, who condemned both practices and concluded that any punishment that was harsher than absolutely necessary was unjustifiable. Bringing these historical threads to the modern day, Bessler writes that the availability of highly-secure penitentiaries has made the death penalty unnecessary as an instrument of public safety. He argues that with more than 80% of the world's nations either not conducting executions or barring the death penalty outright, it is time for international law to recognize a norm against the use of the death penalty. Bessler is a professor at the University of Baltimore School of Law whose previous books on capital punishment include Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment, The Birth of American Law: An Italian Philosopher and the American Revolution, and Against the Death Penalty.
In an op-ed in the Memphis newspaper, The Commercial Appeal, former Tennessee Attorney General W.J. Michael Cody (pictured) has expressed his support for a bill that would exempt people with serious mental illness from the death penalty. Cody, who later served as a member of the American Bar Association's Tennessee Death Penalty Assessment Team, said that "as society's understanding of mental illness improves every day," it is "surprising that people with severe mental illnesses, like schizophrenia, can still be subject to the death penalty in Tennessee." In his op-ed, Cody describes how cases with seriously mentally ill defendants differ from other capital cases: "In 2007, an ABA study committee, of which I was a member, conducted a comprehensive assessment of Tennessee’s death penalty laws and found that 'mental illness can affect every stage of a capital trial' and that 'when the judge, prosecutor and jurors are misinformed about the nature of mental illness and its relevance to the defendant’s culpability, tragic consequences often follow for the defendant.'" He also draws on his experience as the state's top prosecutor, saying, "As a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ...But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole." Tennessee is one of at least seven states in which legislators have introduced bills that would exempt those with severe mental illness from the death penalty. Numerous legal and mental health organizations, including the American Bar Association, American Psychiatric Association, and National Alliance on Mental Illness, support excluding defendants with serious mental illness from the death penalty.
Saying "I’m young, I have a lot of energy, and I’m up to the task of fighting for the rights of others,” death-row exoneree Isaiah McCoy (pictured, center) and his attorneys spoke with DPIC about his wrongful conviction, his exoneration, and his future. Just weeks after his January 19, 2017 exoneration from Delaware's death row, McCoy and lawyers Michael Wiseman and Herbert Mondros (pictured with McCoy) spoke with Robin Konrad, DPIC's Director of Research and Special Projects as part of the Discussions with DPIC podcast series. McCoy's case featured several systemic problems that plague the death penalty system: a lack of physical evidence, eyewitnesses who received deals from the prosecutor and told multiple versions of the story about the crime, a non-unanimous jury recommendation for a death sentence, and a prosecutor whose misconduct in the case was so outrageous that he was suspended from practicing law. McCoy—the nation's 157th death row exoneree—and his attorneys explain how these factors contributed to his wrongful conviction, discuss his efforts to be exonerated, and describe McCoy's life since exoneration. In January 2015, the Delaware Supreme Court granted McCoy a new trial as a result of "pervasive prosecutorial misconduct that permeated" his trial. In the podcast, McCoy shares his views on reforms that could help prevent future wrongful convictions. "A lot of these prosecutors, they've built a culture at their offices where they don't care whether a person is guilty or innocent. Their only goal is to win by any means necessary," McCoy says. "So, I think that's something we must change, in order for the scales of justice to be even." He advises others facing wrongful convictions to educate themselves about the legal system, reach out to organizations for help, and "be steadfast." He said that he plans to use his experiences to protest mass incarceration and assist others who have been wrongfully convicted.
As Colorado's Senate Judiciary Committee considers SB 95—a bill that would replace the death penalty with life in prison without the possibility of parole—the editorial boards of The Denver Post and The Durango Herald have urged the legislature to end capital punishment in the state. Colorado's death penalty system "is broken beyond repair and needs to be repealed," wrote The Denver Post. Repeal, it said, "would save the state millions in both the prosecution and defense of murderers and an untold number of judicial man hours that have so infrequently resulted in death." The Post editorial also highlighted the unwillingness of Colorado juries to impose death sentences, noting that the highly-publicized capital cases of James Holmes and Dexter Lewis both resulted in life sentences. The Durango Herald editorial board also called for repeal, agreeing with the arguments advanced by Republican legislators in the neighboring mountain states of Utah and Nevada that the death penalty "is a failed public policy, is a waste of taxpayer dollars, the risk of executing innocent people is too high and it causes unnecessary harm to victims’ families." The Herald editorial also emphasized the high cost of capital punishment—quoting estimates by the American Civil Liberties Union of Colorado "that the average death penalty trial costs $3.5 million, compared to $150,000 for a trial for life without parole"—and that Colorado has had only one execution in 50 years. In 2013, citing arbitrariness and unfairness in the application of the state's death penalty, Governor John W. Hickenlooper granted a reprieve to Nathan Dunlop, one of three men on Colorado's death row. A 2015 study published in the University of Denver Law Review subsequently showed that prosecutorial decisions to seek the death penalty in Colorado "depend to an alarming extent on the race and geographic location of the defendant." All of Colorado's death-row prisoners are African-American men from the municipality of Aurora. SB 95 would apply prospectively to future crimes, but would not affect the cases of the prisoners currently on death row. [UPDATE: After holding hearings on SB 95, the Senate Judiciary Committee voted 3-2 to defeat the bill. The vote effectively ends death penalty repeal efforts in the state for the 2017 legislative session.]
The U.S. Court of Appeals for the Third Circuit on February 9 declared unconstitutional Pennsylvania's long-standing practice of automatically keeping capital defendants in solitary confinement after courts had overturned their death sentences. Saying that, “Scientific research and evolving jurisprudence has made the harms of solitary confinement clear,” the unanimous three-judge panel ruled that prisoners whose death sentences have been overturned have a constitutionally protected interest against being held in solitary confinement, unless the state could show, after an individualized assessment, that such custody was necessary for security and safety reasons. Shawn Walker and Craig Williams, the former death row prisoners who brought the suit, had spent 14 and 22 years, respectively, in solitary confinement on death row before courts vacated their death sentences. Then each was kept on death row without a death sentence for the six additional years it took to conduct the resentencing proceedings in their cases. In barring continued treatment of inmates like Walker and Williams as death-row prisoners without any demonstrated security need to do so, former Chief Circuit Judge Theodore McKee warned that "Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty. Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row." According to a July 2015 DPIC analysis of Pennsylvania death row, 115 former death-row prisoners whose convictions or death sentences had been overturned in post-conviction proceedings had been resentenced to life or less, or acquitted. Most had been kept in death-row solitary confinement without active death sentences before being resentenced or exonerated.
In a guest column for the Cleveland Plain Dealer, retired federal appeals court judge Nathaniel R. Jones (pictured) urged Ohio to "reconsider its race to death" in scheduling executions while the constitutionality of the state's lethal injection process remains in question. Jones, who served on the United States Court of Appeals for the Sixth Circuit from 1979 to 2002, criticized the state's proposed use of the drug midazolam in executions, describing Ohio's 2014 execution of Dennis McGuire using the drug, in which witnesses said McGuire "gasped loudly for air and made snorting and choking sounds for as long as 26 minutes" before dying. In its aftermath, Ohio temporarily halted executions and announced that it would not use midazolam—which has now been implicated in botched executions in four states—in the future. Jones wrote that, since the McGuire execution, "even more information has emerged about how unsuitable midazolam is for lethal injection." But despite its prior announcement and the additional evidence concerning midazolam, Ohio in 2016 proposed a new three-drug protocol that included midazolam as the first drug, and the state is defending that protocol in court. After a five-day hearing in which the court heard extensive expert testimony, U.S. Magistrate Judge Michael Merz held that Ohio had failed to prove that midazolam does not present a substantial risk of harm and declared the state's proposed execution protocol unconstitutional. Despite the on-going litigation, Ohio set new execution dates both before and after the hearing. "Ohio officials must not risk another unconstitutional execution," Jones wrote. "That can be done only by placing executions on hold while courts take the time necessary to consider whether Ohio's problematic protocol passes constitutional muster." He called on Ohio officials "to agree not to resume executions until the courts determine a lawful method." On February 10, Ohio Governor John Kasich announced that he was rescheduling eight executions as the state appealed the magistrate judge's ruling. The earliest execution, which had previously been scheduled for February 15, was moved to May 10.