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Former Tennessee Attorney General Supports Mental Illness Exemption

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.


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Former Federal Appeals Judge Urges Caution as Ohio Reschedules Executions

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. 


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EDITORIALS: New York Times Hails Prosecutors' Changing Views on Death Penalty

In a February 6 editorial, The New York TImes hails the reform efforts of the "new generation" of state and local prosecutors who are working to change the United States' criminal justice system, and especially the use of the death penalty. The Times highlights the comments of two newly elected local prosecutors, Beth McCann, the new prosecutor in Denver, Colorado, and Kim Ogg, the new district attorney in Harris County, Texas. McCann has said her office will not seek the death penalty because she does not think "that the state should be in the business of killing people." Ogg has pledged that there will be “very few death penalty prosecutions" during her tenure as district attorney. The Times also notes the leadership of state elected officials, pointing to Washington state, where current Democratic Attorney General, Bob Ferguson, and his Rebulican predecessor, Rob McKenna, are jointly supporting a death penalty repeal bill. "Prosecutors aren’t just seeking fewer death sentences; they’re openly turning against the practice, even in places where it has traditionally been favored," the editorial states, citing the historically low number of death sentences in 2016. Emphasizing the influence of these state and local officials, it calls the role of prosecutor, "one of the most powerful yet least understood jobs in the justice system." Their role is especially critical as national leaders present a "distorted ... reality of crime in America" in support of a "law and order" agenda, the Times says. "In these circumstances, the best chance for continued reform lies with state and local prosecutors who are open to rethinking how they do their enormously influential jobs."


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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.


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Denver's Newly Elected District Attorney Says She Will Not Seek the Death Penalty

Newly-elected Denver, Colorado District Attorney Beth McCann (pictured), sworn into office on January 10, 2017, has said that her administration will not seek the death penalty. Asked by 9News, Denver's NBC affiliate, whether Denver was "done with the death penalty," McCann said: "We are under my administration. I don't think that the state should be in the business of killing people." McCann told 9News that alternative sentences provide sufficient punishment at a substantially lesser cost: "I believe that life without the possibility of parole ... gets to the punishment piece, but doesn't cost the taxpayers those millions and millions of dollars that could be used to prosecute other cases." McCann also said she would support repeal of the death penalty in Colorado. No Denver jury has sentenced a defendant to death since 1986 and, after a lengthy capital trial, a jury in August 2015 sentenced Dexter Lewis to life for the stabbing deaths of 5 people in a Denver bar. The state currently has a moratorium on executions. McCann's views are in line with those of many new district attorneys across the country. In the November 2016 elections, voters replaced prosecutors who had aggressively sought death sentences in Hillsborough County, Florida, Harris County, Texas, and Jefferson County, Alabama. In an August primary, voters in Duval County, Florida, ousted Angela Corey, one of the nation's most pro-death penalty prosecutors.


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National Black Caucus of State Legislators Call for Repeal of Death Penalty

Saying that "race plays a decisive role in who lives and who dies" in capital cases in the United States, the National Black Caucus of State Legislators (NBCSL) voted at its 40th annual conference on December 14, 2016, to adopt its first ever resolution calling for the abolition of the death penalty. The resolution states that "racial bias in the criminal justice system, including the death penalty and its application, is an undisputed fact," and notes that "from slavery to Jim Crow to the present day, the death penalty has long been a tool of injustice and discrimination." The resolution says "African-Americans, Latinos, Native Americans, and all people of color are sentenced to longer prison terms, more likely to be tried as adults, and more likely to be sentenced to death in the United States." The NBCSL joined the National Hispanic Caucus of State Legislators and the Movement for Black Lives, which passed anti-death penalty resolutions in August 2016, in advocating for legislation to repeal capital punishment statutes across the country.  In supporting death penalty repeal legislation, the NBCSL resolution cited studies and reports showing that: Black jurors are three times more likely than other jurors to be struck from a jury in a case in which a Black defendant faces a death sentence; according to 88% of criminologists, the death penalty is not an effective deterrent against crime; the death penalty has a negative impact on the families of both the murder victim and the defendant; and 156 wrongfully convicted death row prisoners have been exonerated and released from death row. "[T]he risk of executing an innocent person is higher than ever," the resolution states, "and evidence suggests that innocent African-Americans have been executed." The NBCSL also considered the excessive cost of the death penalty and the uses to which the money saved could be used as additional reasons to abolish the death penalty. The resolution says "repeal of the death penalty will free up millions of tax dollars in cash-strapped state budgets that could be redirected to violence prevention, combating implicit bias, or supporting victims of violence in Black communities." The NBCSL offered its support for "justice reinvestment initiatives and alternative programs that address criminal justice reform" and urged the "U.S. justice department to investigate the fairness, effectiveness, and costs of the death penalty and disproportionate sentencing."  Nebraska State Senator Tanya Cook sponsored the resolution, saying that the death penalty "is not a deterrent to violent crime. Period."  In 2002, the NBCSL had passed a resolution calling for a moratorium on capital punishment.


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