Arbitrariness

Ruling Expected on Arizona Execution Hold, Amid Systemic Problems With Arbitrariness, Lethal Injection

Arizona's last execution, the botched lethal injection of Joseph Wood in July 2014, sparked controversy and legal challenges to the state's lethal injection procedure, and came at a time when Arizona was struggling not only with the logistics of carrying out executions, but also broader issues of fairness and costs. In a sweeping piece for The Arizona Republic, Michael Kiefer, who witnessed Wood's execution, describes the historical and legal background that led up to Arizona's current hold on executions.  He describes how Arizona's list of statutory aggravators — factors that make a case eligible for the death penalty — became so expansive that then-Governor Jan Brewer vetoed a proposed aggravator in 2014 because she worried it would make the death penalty law unconstitutionally broad and vague. Kiefer notes Arizona's 42% reversal rate in capital cases, meaning that 129 of the 306 death sentences in the state were reversed or remanded by higher courts. Nine people have been exonerated in Arizona, and one, Jeffrey Landrigan, was executed despite test results weeks before his execution that found DNA from two different men, but not Landrigan, on the victim's clothing. Landrigan was executed in 2010 using lethal injection drugs imported illegally from London. The U.S. Drug Enforcement Administration later seized the remaining drugs, causing Arizona to switch first to pentobarbital and later to midazolam, the first drug in Wood's botched execution. U.S. District Judge Neil Wake halted all executions in Arizona, asking the state to clearly specify what drugs it has and how it intends to carry out executions. His ruling is expected soon.

Supreme Court Asked to Review Texas' Use of Factors Based on a Fictional Character to Reject Death Row Prisoner's Intellectual Disability Claim

Bobby James Moore (pictured) faces execution in Texas after the state's Court of Criminal Appeals rejected his claim of intellectual disability in September 2015, saying he failed to meet Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test which a judge based on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." In doing so, the appeals court reversed a lower court's ruling that tracked the scientific diagnostic criteria set forth by medical professionals, which found that Moore had intellectual disability. On April 22, the U.S. Supreme Court will conference to decide whether to hear Moore's case. Moore's lawyers argue, supported by briefing from national and international mental health advocates, that he has intellectual disability and that the non-scientific standard employed by Texas in denying his intellectual disability claim violated the Court's 2014 ruling in Hall v. Florida. In 2002, the Supreme Court ruled in Atkins v. Virginia that the 8th Amendment prohibits the use of the death penalty against persons with mental retardation, now known as intellectual disability. But Atkins left it to the states to adopt procedures for determining whether defendants were intellectually disabled. Hall struck down Florida's strict IQ cutoff for determining intellectual disability because it "disregards established medical practice." Texas is the only state that uses the Briseño factors, which include whether the crime required forethought or planning, whether the person is capable of lying effectively, and whether the defendant is more of a leader or a follower. The state court disregarded Moore's clear history of intellectual disability, documented since childhood, and IQ scores ranging from the low 50s to the low 70s, in favor of Texas' idiosyncratic method.

Supreme Court to Consider Hearing Texas Capital Case Where Expert Said Defendant Posed Greater Danger Because He Was Black

UPDATE: The Supreme Court docket indicates that its conferencing of Mr. Buck's case, originally set for April 22, has been rescheduled. The Court is now scheduled to considering the case on April 29. PREVIOUSLY: On April 22, the U.S. Supreme Court is scheduled to confer on whether to review the case of Duane Buck (pictured), who was sentenced to death in Harris County, Texas after a psychologist testified that he posed an increased risk of future dangerousness because he is black. In the case, the defense presented psychologist, Walter Quijano, as its own witness, even though he had previously testified in other cases to a supposed link between race and future dangerousness. During cross-examination, the prosecution asked Quijano - without objection by the defense - whether "the race factor, black, increases the future dangerousness for various complicated reasons." Quijano replied, "yes." The prosecution then returned to this race-based testimony during its closing argument in calling for the jury to sentence Buck to death. Buck is one of six defendants who a Texas Attorney General's report identified as having unfair capital-sentencing hearings that were tainted by Quijano's race-based testimony, and the only one to be denied a new sentencing hearing. Courts initially rejected Buck's claim of prosecutorial misconduct for presenting race-based evidence and argument on the grounds that Buck's own lawyer had presented the witness. However, the lower courts then denied relief when he subsequently presented the argument that his lawyer had provided ineffective representation on this issue. The case has attracted widespread attention, and several stakeholders in Buck's case, including the second-chair prosecutor from Buck's trial, former Texas Governor Mark White, and a surviving victim have urged that Buck be granted a new sentencing hearing. Linda Geffin, the second-chair prosecutor, said "The state of Texas can't put Mr. Buck to the ultimate punishment without having a fair, just, color-blind sentencing hearing." A bipartisan group of amici have urged the Supreme Court to grant review of what they called the "noxious and deeply prejudicial use of race" in this case. American Bar Association President Paulette Brown recently wrote in the Houston Chronicle, "Obviously, an odious race-based argument is never acceptable, let alone in a criminal case where the defendant's life is at stake. And a defendant whose lawyer invites such racist testimony not only has a strong chance of being sentenced to death but a strong claim of ineffective counsel." 

Arbitrariness Remains Pervasive 40 Years After Court Decision Upholding Capital Punishment

Forty years after the U.S. Supreme Court upheld newly enacted death penalty statutes in Gregg v. Georgia and two other cases, Professor Evan J. Mandery of the John Jay College of Criminal Justice says arbitrariness continues to plague the administration of capital punishment across the United States. In a piece for The Marshall Project, Professor Mandery revisits the death penalty in light of the constitutional defects that led the Supreme Court to overturn existing capital punishment statutes in Furman v. Georgia in 1972. He finds that "[w]hether one interprets the Furman decision to have been about — individually or collectively — excessive racism, a failure to identify the 'worst of the worst' among murderers, the death penalty’s sporadic use, or simple geographical randomness, the 'guided discretion' statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse." On the issue of "sporadic use," Professor Mandery cites studies that show state-level death sentencing rates for eligible crimes of 0.56% (Colorado) to 5.5% (California), both of which are dramatically lower than the 15-20% threshold that had raised concerns in Furman. States' failures to identify the "worth of the worst" murderers is evident, he says, in both the expansion of death-eligible crimes (91.1% of murders in Colorado are eligible under the state's death penalty statute) and studies that found no consistent differences in egregiousness of crimes that received death sentences and those that didn't. "Whatever they may have written, [Justice] Stewart, Stevens and Powell’s true project in Gregg was to rationalize the American death penalty and make sentencing decisions turn on the severity of a defendant’s offense instead of random factors, such as where the crime occurred, or insidious factors, such as race." Mandery says. He concludes: "On the occasion of its 40th anniversary, we can deem that project a complete and dismal failure." 

Board Denies Clemency for Death Row Inmate Whose Co-Defendant Received Life Sentence

The Georgia Board of Pardons and Paroles announced on March 31 that it had denied clemency to Joshua Bishop. Bishop had asked that his death sentence be reduced to life without parole because his co-defendant, who was nearly twice Bishop's age at the time of the crime, and had a history of violent crime while Bishop did not, was given a plea deal resulting in a life sentence. Bishop is scheduled to be executed in Georgia on March 31. Seven of the twelve jurors who voted to sentence Bishop to death now support a sentence reduction for a variety of reasons. Juror Jeremy Foston said he initially, "was leaning toward a life sentence because Mr. Bishop had a terrible childhood and was just a young man." Others said they were confused by instructions that the jury had to be unanimous. Juror Jim Ray wrote, "[w]e really struggled with our decision. We eventually changed our vote to a death sentence partly because we were told we had to be unanimous and those [two jurors] who wanted the death penalty were very firm in their conviction and let us know they would not change their minds." The belief that Bishop's co-defendant, Mark Braxley, would also face the possibility of a death sentence influenced some jurors' decisions. They say they would have sentenced Bishop to life without parole if they knew Braxley had received a plea deal for a life sentence. Juror Jeremy Foston wrote, "We wanted to make sure Mr. Braxley would get the same punishment as Mr. Bishop. We even sent a note out asking if we could know what would happen to him. The prosecutor told us not to worry about Mr. Braxley, and that he would have his day in court. We assumed that meant he would have the same treatment as Mr. Bishop."

American Bar Association Urges Reprieve to Allow Full Investigation of Kevin Cooper's Innocence Claims

American Bar Association President Paulette Brown has sent a letter to California Govenor Jerry Brown urging him to grant a reprieve to death row inmate Kevin Cooper to permit a full investigation of Cooper's possible innocence. The ABA President wrote: "Mr. Cooper’s arrest, prosecution, and conviction are marred by evidence of racial bias, police misconduct, evidence tampering, suppression of exculpatory information, lack of quality defense counsel, and a hamstrung court system. We therefore believe that justice requires that Mr. Cooper be granted an executive reprieve until the investigation necessary to fully evaluate his guilt or innocence is completed." The ABA letter described Cooper's case as "a particularly unique example of a criminal justice system falling short at every stage" and referenced a ruling by the Inter-American Commission on Human Rights that Cooper’s conviction and sentence violated his human rights. Cooper has exhausted all appeals in his case, but evidence that was previously suppressed as a result of official misconduct raises questions about his guilt. New evidence includes a statement by the surviving victim that the perpetrators were white or Hispanic (Cooper is black); police destruction of a pair of blood-spattered overalls before testing could take place; and unreliable forensic testing that may indicate evidence contamination. In 2009, five judges of the U.S. Circuit Court of Appeals dissented from the court's decision to uphold Cooper's conviction, writing, "The State of California may be about to execute an innocent man." The ABA letter agrees, asking Gov. Brown to use his clemency power to review the case: "We request that you grant this reprieve and order a meaningful investigation into Mr. Cooper’s case to prevent the possibility of a miscarriage of justice—one that can never be undone."

Texas About to Execute Inmate Despite Evidence of Intellectual Disability

UPDATE: Wesbrook was executed on Mar. 9. EARLIER: Coy Wesbrook is scheduled to be executed in Texas on March 9. If the execution proceeds, it will be the eighth in the U.S. this year, half of which have been in Texas. Wesbrook killed five people after a confrontation with his ex-wife. The U.S. Supreme Court has held that defendants with intellectual disability (formerly referred to as "mental retardation") are exempt from the death penalty. Wesbrook was tested for intellectual disability at the request of the prosecution, following a challenge by Wesbrook's attorneys that he should be spared. Psychologist George Denkowski examined Wesbrook and initially submitted a report finding he had an IQ of 66, placing him below the standard level for intellectual disabilty. Several months later, he filed a new report based on "non-intellectual factors" that said Wesbrook's "actual adult general intelligence functioning is estimated to be of about 84 quality." Ohio State University professor Marc Tasse, an expert on developmental disabilities, said Denkowski's methods had "absolutely no scientific basis." Because of his unscientific procedures in Wesbrook's and 15 other cases, Denkowski was fined by the Texas State Board of Examiners of Psychologists and agreed never to testify in another criminal case. Nevertheless, the execution has been allowed to proceed.

Alabama Judge Rules Capital Sentencing Scheme Unconstitutional

Jefferson County, Alabama Circuit Judge Tracie Todd (pictured) ruled on March 3 that Alabama's capital sentencing procedure violates the U.S. Constitution. Judge Todd barred the death penalty for four capital murder defendants, saying that Alabama's use of judicial override violates the Sixth Amendment. Under Alabama's system, at least 10 jurors must agree in order to recommend a death sentence, but a judge can override the jury's recommendation and impose death even if the jury recommended a life sentence. Because of this practice, Judge Todd said, "Alabama has become a clear outlier." She said the death penalty, "is being imposed in a wholly unconstitutional manner." In reading her ruling from the bench, the judge noted that Alabama has executed more defendants than states five times its size and questioned whether the partisan election of judges created a danger of judges imposing the death penalty due to political pressure. A 2011 report by the Equal Justice Initiative documented the effects of Alabama judicial overrides of jury life recommendations. More recently, a study by the Charles Hamilton Houston Institute for Law and Justice at Harvard found that more than three-quarters of the death sentences imposed in Alabama in the past 5 years involved non-unanimous juries. Alabama, Delaware, and Florida are the only states that permit a judge to impose the death penalty after the jury has not unanimously recommended death. 

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