New Voices

NEW VOICES: Ninth Circuit Judge Calls for Sweeping Criminal Justice Reform

In a recent article for the Georgetown Law Journal, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit calls for sweeping reforms in the criminal justice system. The former Chief Judge, who was appointed by President Reagan in 1985, outlined a number of "myths" about the legal system, raising questions about the reliability of eyewitness testimony, fingerprint evidence, and even DNA evidence, which can easily be contaminated. Judge Kozinski directed his harshest critism at the limitations the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes on federal habeas corpus review of state criminal cases. He pointed to the case of Ron Williamson, the death-row inmate who was the subject of the John Grisham book, The Innocent Man, who five days before his scheduled execution obtained a stay from the federal courts "that began a process culminating in Williamson’s exoneration." AEDPA, he says, "abruptly dismantled" this habeas corpus "safety-value," and has "pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred." Instead, federal courts "now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted." He calls AEDPA "a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering. It should be repealed." Judge Kozinski also examines the roles of decision makers in criminal cases, highlighting such myths as "juries follow instructions," "prosecutors play fair," and "police are objective in their investigations." He recommends reforms to improve the accuracy and fairness of trials, including requiring "open file discovery" - meaning that all prosecution evidence related to a case is made available to the defense - and adopting more rigorous standards for eyewitness identification, suspect interrogations, and the use of jailhouse informants. He also advocates for the elimination of elected judges, noting that studies show "that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty" and that elected judges often face political retaliation for ruling in favor of the defense or for sanctioning prosecutors for instances of misconduct.

NEW VOICES: Republican and Democratic Legislators Critique Tennessee's Death Penalty

In two separate guest columns for The Commercial Appeal (Memphis, TN), four state legislators urged an end to the death penalty in Tennessee. State Representatives Steve McManus (top left) and Mark White (top right), both Republicans, called capital punishment, "a lousy return on our investment." Estimating that Tennessee's death penalty is similar in costs to North Carolina's $11 million-per-year system, they listed some alternative uses for death penalty funds. "270 patrol officers. 361 state troopers. 228 detectives and criminal investigators. 110 new school buses. 239 teachers. Compensation for 367 crime victims and their families." They go on to raise concerns about the accuracy of capital convictions in Tennessee, which has executed six inmates and exonerated three. "Six-and-three isn't bad if you're playing football. It's not very good if you're deciding life or death." On the other side of the aisle, Democratic State Sen. Lee Harris (bottom left) and State Rep. Johnnie Turner (bottom right) called the death penalty, "broken," giving four reasons for their opposition to capital punishment. "First, we should be investing in infrastructure, schools, police and emergency services, and public transportation, among others...Second, executing an innocent person is an unacceptable risk...Third, the death penalty affects innocent people in other ways, too...the evidence shows that some people, when faced with the prospect of death, will falsely admit to taking a life to save their own...Fourth, we could be doing more for victims' families." They conclude, "In the end, the death penalty is a needless source of ongoing contention, and it takes up too much of our valuable time and resources while we're trying to work through all the other problems our criminal justice system is facing."

Urban League President Calls for Reconsideration of Death Penalty

Highlighting the recent abolition of the death penalty in Nebraska and concerns about wrongful convictions, National Urban League President Marc H. Morial (pictured) called for an end to executions. In an op-ed for The Philadelphia Tribune, Morial cited declining public support for the death penalty: "56 percent of Americans support the death penalty, this from a high of almost 80 percent in the mid-90s," he said. He also emphasized the growing conservative opposition to the death penalty, which was critical in bringing about repeal in Nebraska. "There are many experts who contribute much of today’s sea change in attitudes towards capital punishment to the growing number of conservatives coming to the frontlines of the opposition movement to the death penalty, questioning its efficacy and fiscal soundness," Morial said. Finally, he pointed to the stories of those exonerated from death row, saying, "No matter where you may stand on the death penalty debate, where is the value in maintaining a system that could likely execute an innocent man or woman?" He concluded, "As long as questions of equity, fairness and fallibility persist, we must stop executions and give death row inmates every chance to prove their innocence."

NEW VOICES: American Society of Health-System Pharmacists Opposes Participation in Executions

In a press release on June 9, the American Society of Health-System Pharmacists (ASHP) announced its policy affirming "that pharmacists, as healthcare providers who are dedicated to achieving optimal health outcomes and preserving life, should not participate in capital punishment." ASHP represents 40,000 members, including pharmacists who serve as patient-care providers in acute and ambulatory settings. The organization also includes student pharmacists and pharmacy technicians. The policy was approved by the organization’s chief policy-making body, the House of Delegates, during ASHP’s Summer Meetings this week in Denver. “This policy makes it clear that ASHP opposes pharmacists’ participation in capital punishment,” said ASHP Chief Executive Officer Paul W. Abramowitz, Pharm.D., Sc.D. (Hon.), FASHP. “We are proud that our members as patient care providers who are dedicated to achieving optimal health outcomes have taken this strong, ethical stance.”

North Carolina Governor Formally Pardons Two Death Row Exonerees

North Carolina Governor Pat McCrory granted pardons to Leon Brown (l.) and Henry McCollum (center, r.), allowing the two men to receive compensation for their wrongful convictions. Brown and McCollum are half-brothers who were convicted of the 1983 murder of an 11-year-old girl and sentenced to death. McCollum spent 30 years on death row before being exonerated by DNA evidence in 2014. Brown was released after 30 years in jail, eight of them on death row. At the time of their arrests, Brown was 15 and McCollum 19. Both gave coerced confessions. An investigation by the North Carolina Innocence Inquiry Commission found DNA at the crime scene from a man who was in prison for a similar crime committed just a month later. Upon granting the pardons to Brown and McCollum, McCrory said, "This has been a very comprehensive and thoughtful process during the past nine months. Based upon the available evidence that I have personally reviewed, I am granting pardons of innocence to Henry McCollum and Leon Brown. It is the right thing to do." A review board may now determine whether to grant each man up to $750,000 in compensation.

NEW VOICES: Kareem Abdul-Jabbar Urges Abolition of Death Penalty

In his column for TIME Magazine, basketball hall of famer, author, and filmmaker Kareem Abdul-Jabbar broadly explores the state of the death penalty In the United States and concludes that life without parole is the better option for American society. Stating that "[t]he primary purpose of the death penalty is to protect the innocent," Abdul-Jabar notes that there is a significant difference between the death penalty's goal in theory and its application in practice. "While it’s true that the death penalty may protect us from the few individuals it does execute," he says, "it does not come without a significant financial and social price tag that may put us all at an even greater risk." Abdul-Jabbar points to the death penalty's financial cost, the risk of executing the innocent, and racial and economic disparities in its application. Financially, he says, "[t]his isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education...The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost." His column discusses the "high probability that we execute innocent people," citing the more than 140 people exonerated from death row and a recent study indicating that 4% of people sentenced to death may be innocent. Abdul-Jabbar also describes racial bias in capital sentencing, and the problem of inadequate representation, saying, "[t]his lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment." He concludes, "we can’t let our passion for revenge override our communities’ best interest...With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life."

Nebraska Repeals Death Penalty

The Nebraska legislature voted 30-19 to override the veto of Governor Pete Ricketts and abolish the death penalty. Nebraska becomes the 19th state to repeal the death penalty, and the 7th state to do so since 2007. It is the first predominantly Republican state to abolish the death penalty in over 40 years, and state legislators said Republican support was critical to the bipartisan repeal effort. Sen. Jeremy Nordquist said, "This wouldn't have happened without the fiscally responsible Republicans who aren't just beholden to conservative talking points, but are thoughtful about policy." Sen. Colby Coash cited fiscal concerns among his reasons for supporting repeal: "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years. This program is broken."  The sponsor of the repeal bill, Independent Senator Ernie Chambers, opened the repeal debate with a reference to the historic nature of the pending vote. “This will be the shining moment of the Nebraska Legislature,” he said. “The world, by anybody’s reckoning, is a place filled with darkness, contention, violence. We today can move to lift part of that cloud of darkness that has been hovering over this state for all these years.”

Justice Stevens Says Death Penalty Unnecessary, Wasteful, and Creates Higher Risk of Error

In a discussion at the George Washington University School of Law, retired Supreme Court Justice John Paul Stevens said the death penalty creates a higher risk of error than other criminal cases and is unfair, unnecessary, and a "terrible waste" of resources. Using the Boston marathon bomber trial as an example, Justice Stevens said jury selection procedures in capital cases produce juries who are "not representative of the community." He said that, under these procedures, "most of the 75%" of Bostonians who opposed the death penalty "could be challenged for cause and do not make it" onto the jury.  "That’s one reason that the death penalty is much more unfair than we thought it was at the time back when we decided the three cases" that reinstated the death penalty in 1976 after the Court had previously ruled its application unconstitutional. Justice Stevens went on to say, "I had expected that the procedures would be more protective of the defendants in death cases than in ordinary criminal cases. And in several respects, ... they in fact are more pro-prosecution. And so the risk of error is larger in death cases than it is in other cases, and that certainly can’t be right." Finally, he compared the death penalty unfavorably to the alternative of life without parole: "it's really not necessary because life imprisonment without parole protects the public at least as well as execution does and so the justification for the death penalty is diminished. And I think if you make a cost-benefit analysis – the cost of the trials and all the rest – it is a terrible waste of society’s resources to have these capital trials that go on for so long and produce an awful lot of unfortunate results."

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