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Delaware Supreme Court Decision Paves Way to Clear State's Death Row

On December 15, the Delaware Supreme Court ruled in Powell v. State that death-row prisoner Derrick Powell will get the benefit of its August 2016 decision in Rauf v. State declaring Delaware's death sentencing statute unconstitutional. The court directed that Powell be resentenced to life without parole, in a ruling that also paves the way for resentencing Delaware's twelve other death row prisoners to life. The court's holding is based upon a legal principle called retroactivity. When the court decided Rauf, it determined that Delaware's capital sentencing statute violated due process and the Sixth Amendment in part because it did not require that the jury find unanimously and beyond a reasonable doubt all facts legally necessary to impose a death sentence. Applying Delaware law, the court held that Rauf was a type of legal ruling that should apply to all capital cases in which juries did not make such a finding because Rauf had announced a "new watershed procedural rule for capital proceedings that contributed to the reliability of the fact-finding process." The court explained that, prior to Rauf, Delaware capital defendants had been sentenced to death using a "preponderance of the evidence standard" in which the death penalty could be imposed if the prosecution proved that aggravating circumstances justifying the death penalty even slightly outweighed mitigating factors that could justify sparing the defendant's life. That burden of proof, the court said, was materially lower than if juries were required rule out the death penalty if any juror had reasonable doubt as to whether the aggravating evidence outweighed mitigation. In Powell's case, his jury, applying the lesser preponderance-of-the-evidence standard, voted 7-to-5 that aggravating factors outweighed mitigating factors and recommended a death sentence. Under the court's ruling, Powell's death sentence was automatically converted to a sentence of life without the possiblity of "probation or parole or any other reduction."  The Delaware Attorney General's office did not appeal the court's ruling in Rauf, which was based solely on the federal constitution, to the U.S. Supreme Court. Because the Powell retroactivity decision is based on Delaware state law, it does not raise federal constitutional questions and would not be subject to review by the federal courts.

NEW VOICES: Latinos Increasingly Vocal in Opposition to Death Penalty

Juan Cartagena (pictured), President and General Counsel of LatinoJustice PRLDEF (formerly the Puerto Rican Legal Defense Fund), says there is "a growing understanding" among Latinos in Florida and across the country "that the death penalty is broken and it can't be fixed." In an op-ed for the Orlando Sentinel, Cartagena explains the reasons for Latino opposition to the death penalty, especially in Florida, which has a large Latino population and is home to Miami-Dade, Hillsborough, Pinellas, and Duval counties. Those four counties are among the 16 counties that have imposed the most death sentences in the U.S. over the past five years and, Cartagena writes, "[t]hey all suffer from prosecutor misconduct, bad defense lawyers, wrongful convictions and racial bias. In Miami-Dade County from 2010 to 2015, every single person sentenced to death was black or Latino." Cartagena particularly emphasizes the historical opposition to the death penalty among Puerto Ricans, of whom increasing numbers have moved to Florida in recent years. "Puerto Rico abolished the death penalty in 1929. Its constitution, drafted in 1952, states that 'the death penalty shall not exist.' Opposition to capital punishment is a part of our legacy." As a result, he writes, "Puerto Ricans in Florida are paying close attention" to the serious flaws in Florida's death penalty, including allowing non-unanimous juries to impose death sentences–a practice that was struck down as unconstitutional earlier this year. All these concerns, he says, are reflected in a nationwide "shift away from the death penalty" among Latinos. In the last two years, three major Latino organizations have made strong public statements against the death penalty. The National Latino Evangelical Coalition adopted a position against the death penalty in March 2015, contributing to a change in the National Association of Evangelicals' stance later that year. In June 2016, the National Hispanic Leadership Agenda called for repeal of the death penalty, and in August, the National Hispanic Caucus of State Legislators passed a resolution urging repeal.

Judge Finds Federal Death Penalty Arbitrary and Unreliable, But Leaves Constitutionality for Supreme Court to Decide

After a two-week long "extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty," U.S. District Court Judge Geoffrey Crawford (pictured) ruled in the case of U.S. v. Donald Fell that the Federal Death Penalty Act ("FDPA") "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty," but nonetheless allowed Fell's capital trial to move forward. Fell, who is awaiting retrial by federal prosecutors in Vermont, had filed a motion asking the judge to find the death penalty unconstitutional under the Fifth and Eighth Amendments. Judge Crawford wrote that, like the state statutes enacted after the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman v. Georgia, "the FDPA operates in an arbitrary manner in which chance and bias play leading roles." But while the court's order contained detailed findings suggesting the death penalty is arbitrarily and unreliably imposed, it stopped short of declaring the death penalty unconstitutional. "A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court," Judge Crawford wrote. "Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself." Judge Crawford found significant problems in numerous aspects of capital proceedings. He found that instead of redressing questions of bias, death penalty jury selection procedures are "a substantial part of the problem" and create as "inherent jury bias" by selecting "jury populations which stack the deck against defendants" in both the guilt/innocence and penalty phases of the trial. He found that "the death penalty continues to be imposed in an arbitrary manner," noting that where the "crime occurs is the strongest predictor of whether a death sentence will result" and "whether the murder victim is white" is also a signficant predictor. Judge Crawford explained that "the arbitrary qualities of the death penalty are most clearly visible through the narrative comparison of crimes which do and those which do not receive death sentences." There is, he said, no principled way to distinguish between which is which.

As Supreme Court Rejects Death Penalty Petitions, Justice Breyer Renews Call For Constitutional Review

In the span of one week, the U.S. Supreme Court declined to review petitions from six death row prisoners, denying them relief in their cases. The petitioners raised issues related to DNA procedures, conflict of counsel, a disputed guilty plea, juror bias, judicial override, and a previously botched execution attempt. In two of the cases, the Court allowed executions to proceed in Georgia and Alabama. The case of Ronald Smith left the Court deadlocked 4-4, with enough votes to grant review in his case, but not enough to halt his execution. On December 12, as the Court denied review in four other death penalty cases, Justice Stephen Breyer (pictured) authored a written dissent in the case of Florida death row prisoner Henry Perry Sireci indicating that he would have granted review to Sireci, Smith, and Ohio death row prisoner Rommell Broom to consider the constitutionality of the death penalty in the United States. Breyer wrote: "Individuals who are executed are not the 'worst of the worst' but, rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. The time has come for this court to reconsider the constitutionality of the death penalty." Breyer previously called for a consideration of capital punishment's constitutionality in his dissent in Glossip v. Gross, which was joined by Justice Ruth Bader Ginsburg. Justice Kagan also noted her dissent from the denial of certiorari in Broom's case. In 2009, Ohio attempted to execute Broom, but the execution was halted after two hours of repeated painful attempts to establish IV access failed, including striking Broom's bone with the execution needle. In his dissent, Justice Breyer noted that Sireci has been on death row "under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen." Referencing Broom's petition, Breyer wrote that Sireci's was not "the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what [he] would consider especially cruel and unusual circumstances."  

OUTLIER COUNTIES: Miami-Dade Death Sentences Reflect Constitutional Defects, Misconduct

Miami-Dade County has historically been a significant contributor to Florida's death row and large proportions of its recent death sentences raise serious constitutional questions about the practices that result in death verdicts and the characteristics of the defendants who are sentenced to death. Miami-Dade imposed five death sentences between 2010 and 2015, placing it among the 16 counties that produced more death sentences than 99.5% of all U.S. counties. The questionable reliability of the Miami-Dade death penalty cases is illustrated by the characteristics of the seven cases that came before the Florida Supreme Court on direct appeal from 2006-2015. Six of those cases (86%) involved a non-unanimous jury recommendation for death, a practice the Florida Supreme Court struck down as unconstitutional in October 2016. Miami-Dade had the second highest rate of prosecutorial misconduct among the 16 most prolific death-sentencing counties and nearly a third (29%) of the cases decided on direct appeal since 2006 involved misconduct. In reversing one of the cases for misconduct, the court said the prosecutor “appeared to be committed to winning a death recommendation rather than simply seeking justice.” In another, the court overturned the death sentence as a result of the prosecutor's "inflammatory, egregious, and legally improper closing argument.” One former Assistant State Attorney, who was credited with sending more people to death row than any other Florida prosecutor, spoke disparagingly of the role of mitigating evidence in capital cases, saying, “Of course I feel bad that society has created a monster, but should the bad background in the past disable us from imposing an appropriate punishment now?” And the defendants judges sentenced to death in four of the cases had presented significant mitigating evidence that made them nearly indistinguishable from those who are exempt from capital punishment as a result of their age or mental health status. Yet such a full presentation of mitigating evidence was atypical in the cases that resulted in death verdicts. The lawyers in those cases presented an average of one day of mitigating evidence. The new death sentences also reflect the role of race. All five of the defendants sentenced to death in Miami-Dade from 2010-2015 were Black or Latino, and a study of sentencing rates in Florida found that defendants are 6.5 times more likely to be executed if the victim is a White female than if the victim is a Black male.

Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in Supreme Court Denies Him A Stay

After a divided U.S. Supreme Court twice temporarily halted the execution of Ronald Bert Smith, Jr. (pictured), Alabama put Smith to death on December 8 in a 34-minute execution in which Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period. Smith's jury had recommended by a vote of 7-5 that he be sentenced to life without parole, but, in a practice permitted by no other state, his trial judge overrode that recommendation and sentenced Smith to death. At the time his execution was scheduled to begin, Smith had a stay motion and a petition for certiorari pending in the U.S. Supreme Court arguing that judicial override violated his Sixth Amendment right to a jury trial and was unconstitutionally arbitrary under the Eighth Amendment. After Alabama announced its intention to proceed with the execution despite the pending petition, Justice Thomas granted a temporary stay, a procedure to allow time for the full Court to act. Half the Court—enough to review a case—voted to grant Smith a stay, but five votes are required to halt an execution. Smith's lawyers then filed a motion for reconsideration, criticizing as arbitrary the rule that allows four votes to grant review of a case, but requires five to stay an execution. His motion argued that when four justices vote to hear a case, "all certiorari petitioners, public and private parties in civil and criminal cases of every kind" are entitled to have their cases reviewed except condemned prisoners facing an imminent execution. He asked the Court to reconsider his stay motion "[b]ecause the Court’s inconsistent practices respecting 5-4 stay denials in capital cases clash with the appearance and reality both of equal justice under law and of sound judicial decision-making." Justice Thomas granted another temporary stay so the full Court could consider that motion; after about an hour, the Court denied the request and also rejected a last-minute challenge to the state's lethal injection procedure. Alabama used a three-drug procedure in its execution, beginning with midazolam, a sedative that has contributed to botched executions in several other states and that was the subject of a challenge before the Supreme Court in 2015. Though midazolam is intended to render the inmate unconscious and therefore protect against the pain and suffering that would be experienced from the second and third drugs, witnesses reported that Smith showed signs of consciousness after it was administered.

Experts Say Texas' Future Dangerousness Concept Is Based on Junk Science

Since 1973, juries in Texas have had to determine whether a defendant presents a future danger to society before imposing a death sentence. But while they have found that each of the 244 men and women currently on the state's death row poses "a continuing threat to society," experts argue that juries cannot accurately predict a defendant's future. According to Dr. Mark Cunningham, a psychologist and leading researcher on the issue of future dangerousness, “[j]uries show absolutely no predictive ability whatsoever” on this issue. In Texas capital cases, prosecutors typically present testimony from psychiatric witnesses who offer their opinion that the defendant will commit future acts of violence. One witness, psychiatrist Dr. James Grigson, testified in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. The Texas Court of Criminal Appeals recently granted a stay of execution to Jeffery Wood—who had no history of violence and did not himself kill anyone—to permit him to challenge Dr. Grigson's testimony in his case as false and unscientific. Studies show that the ostensibly objective inquiry into future dangerousness has not reduced the arbitrary imposition of death sentences and that, in fact, testimony on the issue has often instead introduced racial bias into trials. The U.S. Supreme Court is currently considering the case Buck v. Davis, in which a psychologist testified that the fact that defendant Duane Buck (pictured) is African-American increases the likelihood that he presents a future danger to society. A study led by Stanford University Prof. Jennifer Eberhardt found that in interracial murders involving a White victim and a Black defendant, the physical features of the defendant greatly affected the outcome of the case. In those cases, defendants with stereotypically African facial features were more than twice as likely to be sentenced to death as Black defendants who had a less stereotypically African appearance. The American Psychiatric Association has sought to eliminate the question of future dangerousness from jury decisions, writing in an amicus curiae brief to the U.S. Supreme Court: “[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” Kathryn Kase, director of the Texas Defender Service, described the determination of future dangerousness as "akin to giving jurors two cotton swabs, asking them to look at them and saying, ‘Does the DNA match?’ If an expert can’t figure it out, then how can jurors do that? It is no accident that African Americans are overrepresented on death row.”

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." 

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