Virginia

Virginia

Virginia Increases Execution Secrecy After Difficulty Setting IV in Last Execution

After prison personnel took more than a half hour to set the IV line during Virginia's January 18 execution of Ricky Gray, the Commonwealth's Department of Corrections has changed its execution procedures to conduct more of the execution preparations out of view of witnesses. Prior to the change, witnesses watched as the prisoner entered the execution chamber and was strapped to the gurney. A curtain was closed while staff placed intravenous lines and electrodes for a cardiac monitor, then reopened when the execution was ready to be carried out. The curtain was closed for 33 minutes during Gray's execution, raising concerns that something had gone wrong in the placement of the IV. The ACLU of Virginia said, "the length of time Gray was behind the curtain, as well as the presence of a doctor who confirmed his death using a stethoscope rather than by viewing a heart monitor as the previous protocols required, suggest something unusual happened during the process of killing him." Under the new protocol, witnesses will no longer be able to view the prisoner entering the chamber, so they will not know when the process begins. In 2015, the American Bar Association adopted an Execution Transparency Resolution calling for execution protocols to be promulgated "in an open and transparent manner" and to "require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off." In response to the Commonwealth's change in policy, the ACLU of Virginia urged Governor Terry McAuliffe to halt all pending executions and initiate a public review of the execution protocol. "It seems that, when confronted with questions and criticism over issues with the written protocols and actual practice of executing people in Virginia, the DOC and the administration’s posture is to ignore these concerns and then tighten the veil of secrecy even further to avoid uncomfortable questions in the future," the ACLU stated in a letter to the governor. The Virginia ACLU's Director of Public Policy and Communications, Bill Farrar, told WVIR-TV, "We have secrets upon secrets upon secrets with Virginia's process of executing people in this state and it needs to stop."

At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness

Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."

Mental Health Professionals, Religious Leaders Join Ricky Gray's Plea for Clemency

Ricky Gray (pictured), who is scheduled to be executed on January 18, is seeking clemency from Virginia Governor Terry McAuliffe, and his clemency petition has been joined by a diverse group of mental health professionals and the Virginia Catholic Conference. A letter signed by more than 50 mental health professionals, including two former commissioners of the Virginia Department of Behavioral Health and Developmental Services, urges McAuliffe to commute Gray's sentence because of Gray's history of "horrific" childhood abuse and his addiction at the time of the crime. Gray's jury never heard evidence that he was raped and sodomized almost daily from the ages of four to eleven, and that he turned to drugs as early as age 12 to numb the resulting trauma. At the time of his crime, he was under the influence of PCP. “In Mr. Gray’s case, his abuse and trauma were left unaddressed and predictably led to profound despair and other serious trauma symptoms, drug addiction, and the drug use that resulted in the tragic crimes he committed with Ray Dandridge,” the letter states. Gray's lawyers seek to have Gray's sentence commuted to life—the same sentence that Dandridge received. Gray's clemency petition includes reports from mental health experts who say that the extreme childhood trauma Gray endured altered his brain development, making him particularly susceptible to the effects of drugs. Gray has apologized for his involvement in the crimes, saying, "Remorse is not a deep enough word for how I feel. I know my words can’t bring anything back, but I continuously feel horrible for the circumstances that I put them through. ...There’s nothing I can do to make up for that. It’s never left my mind, because I understand exactly what I took from the world by looking at my two sisters. I’m reminded each time I talk and see them that this is what I took from the world." Governors in other states have granted clemency in some cases with similar circumstances. In September 2011, Ohio Governor John Kasich commuted the death sentence imposed on Joseph Murphy, citing Murphy's "brutally abusive upbringing." In January 2012, Delaware Governor Jack Markell commuted Robert Gattis' death sentence based on evidence of severe physical, emotional, and sexual abuse by family members. Both are now serving life sentences. Gray is also seeking a stay of execution from the U.S. Court of Appeals for the Fourth Circuit as he challenges the constitutionality of Virginia's proposed lethal injection protocol. UPDATE: The U.S. Court of Appeals for the Fourth Circuit denied Gray's request for a stay on January 13.

American Bar Association Issues White Paper Supporting Death Penalty Exemption for Severe Mental Illness

At a December 6-7 national summit on severe mental illness and the death penalty, the American Bar Association Death Penalty Due Process Review Project released a new white paper that it hopes will provide law makers with information and policy analysis to "help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness." The ABA does not take a position on the death penalty itself, but believes that "[i]ndividuals with severe mental disorders or disabilities ... should not be subject to capital punishment." The white paper describes the range of problems faced by seriously mentally ill defendants in capital cases and sets forth possible legislative approaches for exempting them from capital sanctions. The white paper, and ABA President-elect Hilarie Bass in her address to the summit, likened the diminished moral culpability of the severely mentally ill to that of two other "vulnerable groups"—juvenile offenders and defendants with intellectual disabilities—whom the court has exempted from the death penalty.  The application of the death penalty to these defendants, she said, "has been deemed unconstitutional because our society considers both groups less morally culpable than the 'worst of the worst' murderers for whom the death penalty is intended. They are less able to appreciate the consequences of their actions, less able to participate fully in their own defense and more likely to be wrongfully convicted. These exact characteristics apply to individuals with severe mental illness." Citing national polls in 2014 and 2015, Bass said the American public "support[s] a severe mental illness exemption from the death penalty by a 2 to 1 majority." At least 8 state legislatures are expected to consider serious mental illness exemptions in 2017. Among those states is Virginia, where just this year, a jury disregarded prosecution and defense experts in the death penalty trial of Russell Brown and found him guilty despite testimony that he was insane and did not understand the nature or consequences of his actions. The jury ultimately sentenced Brown to life in prison, but, as University of Virginia Law Professor Brandon Garrett explained, "there was no statutory protection available against the highest punishment for a man who, by the admission of all experts, did not have the highest culpability." As does the ABA, Professor Garrett argues that a serious mental illness exemption is a safeguard that is necessary to reduce unfairness in the administration of capital punishment. "If lawmakers believe that we should retain the death penalty in Virginia," he wrote, "we must be confident that we are not sentencing to death severely mentally ill people who cannot be fully blamed for their actions." 

Supported by New DNA Evidence, Man Sentenced to Death in Virginia in 1970 Files Innocence Claim

Sherman Brown (pictured), a man who was sentenced to death in Virginia in 1970 for the murder of a 4-year-old boy, has filed a writ of actual innocence with the Virginia Supreme Court saying that DNA testing on recently discovered evidence clears him of the crime. Brown's petition states: “Recent DNA testing demonstrates by clear and convincing evidence what I have maintained for over 45 years: that I am innocent of this crime. The evidence against me at trial was deeply flawed." Brown was convicted of a 1969 crime in which a woman was knocked unconscious, stabbed, and possibly raped and her 4-year-old son was killed. The woman—who is White—identified Brown—who is Black—as her attacker, and investigators presented expert testimony claiming that a fiber and hair analysis they had conducted implicated Brown. An all-White jury convicted Brown and sentenced him to death. His death sentence was reduced to life in prison when the U.S. Supreme Court struck down the death penalty in 1972 in Furman v. Georgia. Several recent developments have called Brown's conviction into question. The fiber and hair evidence used in Brown's trial was among the flawed forensic testimony recently identified by the FBI as lacking scientific validity. In 2015, the University of Virginia Innocence Project discovered a slide that contains a vaginal swab that was taken from the victim at the time of the crime. DNA testing excluded Brown as the source of a male DNA profile found in the specimen and, with 98% certainty, ruled out the woman's husband. This, Brown says, shows the DNA “came from an unidentified third man and constitutes powerful evidence of [his] innocence.” The Virginia Supreme Court has stayed Brown's petition to permit additional testing to conclusively determine whether the male DNA could have come from the victim's husband. If Brown is exonerated, he would be the second Virginia prisoner exonerated after having been sentenced to death.

Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan--rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart--from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.

Virginia Governor Rejects Mandatory Use of Electric Chair, Proposes Lethal Injection Secrecy

Virginia Governor Terry McAuliffe rejected a bill that would have employed the electric chair as the state's method of execution if lethal injection drugs are unavailable. Instead, he offered amendments that would permit the Commonwealth's Department of Corrections to enter into confidential contracts to obtain execution drugs from compounding pharmacies, whose identities would be concealed from the public. His proposal is similar to legislation he backed last year that failed because of concerns about its secrecy provisions. McAuliffe's amendments will go before the Virginia legislature during their veto session, which begins April 20. Under Virginia law, the legislature may accept the amendments by a simple majority vote or override the governor's action again passing the unamended original bill by a two-thirds vote in both Houses of the legislature. If there is insufficient support for either option, the original bill returns to the Governor where he can veto it, sign it, or allow it to become law without his signature. Many states have adopted secrecy policies as they seek alternative sources of lethal injection drugs, but a Missouri judge recently ordered that state to reveal the sources of its execution drugs. The amendment proposed by Gov. McAuliffe states that pharmacies' identifying information, "shall be confidential, shall be exempt from the Freedom of Information Act . . . and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown." Virginia law currently directs condemned prisoners to choose between lethal injection and the electric chair, but the bill as initially approved by the legislature would have given the state authority to use the electric chair if lethal injection drugs were deemed to be unavailable, even if the prisoner had selected lethal injection.

U.S. on Track for Fewest Executions, New Death Sentences in a Generation

Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.

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