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Florida Legislature Passes Bill Eliminating Non-Unanimous Jury Recommendations for Death Penalty

A Florida bill that would require the jury to make a unanimous recommendation for death before a judge may impose a death sentence will head to Governor Rick Scott for final approval, after both houses of the Florida legislature passed it by overwhelming margins. Senate Bill 280 passed unanimously (37-0) on March 9, and the corresponding House Bill 527 passed by a 112-3 vote on March 10. If signed by the governor, the bill will bring Florida into compliance with the Florida Supreme Court's rulings in Hurst v. State and Perry v. State in 2016. Hurst struck down Florida's prior capital sentencing statute, which had allowed judges to impose the death penalty if a majority of jurors recommended death or to override a jury's recommendation of life. Perry struck down an amended version of the statute, which had permitted judges to impose a death sentence if 10 or more jurors recommended death. The Florida Supreme Court also ruled that the unanimity requirement would apply to death-row prisoners whose direct appeals had been decided after the United States Supreme Court's June 2002 decision in Ring v. Arizona, which held that capital defendants had a right to a jury determination of all facts necessary to impose the death penalty. That decision is expected to overturn approximately 200 death sentences, while permitting a similar number of prisoners whose direct appeals had already been completed to be executed despite constitutional violations in their cases. Until recently, three states—Florida, Alabama, and Delaware—permitted judges to impose death sentences on the basis of non-unanimous jury recommendations for death. Non-unanimous cases accounted for more than 20% of all death sentences in the U.S. from 2010-2015 and disproportionately contributed to death-row exonerations. In 2016, the Delaware Supreme Court struck down its state's death penalty statute, holding that death sentences based upon non-unanimous jury recommendations for death were unconstitutional. The change to Florida's law would leave Alabama as the only remaining state in which a judge may impose a death sentence based upon a non-unanimous jury recommendation. 


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Florida, Alabama Consider Legislation on Exoneree Compensation

As the Florida legislature considers a bill that would change Florida's "Clean Hands" policy, which denies compensation for wrongful convictions if the defendant had a prior felony record, Alabama lawmakers are deciding whether to grant compensation to Anthony Ray Hinton (pictured), who was exonerated in 2015 after spending nearly 30 years on death row. In Florida, death row exoneree Herman Lindsey told the Senate Criminal Justice Committee about his having been denied compensation because of prior unrelated felony convictions. He spoke about the difficulty he has faced finding housing or a job because the arrest for murder is still on his record. He said the "Clean Hands" Provision is, "basically saying, ‘we can take anybody that has a criminal record and say let’s falsely incarcerate him and when he found it wasn’t really him, we can actually put him out on the streets and we don’t actually even have to worry about it.’ I didn’t receive any apology. I didn’t receive any compensation.” The proposed bill would allow compensation for some exonerees who have prior nonviolent felony convictions. Sen. Jeff Brandes (R-St. Petersburg), a supporter of the bill, said, “If the state and the people of the state get it wrong, it shouldn’t matter what individuals have done in their past.” Lindsey said only four of Florida's 26 death-row exonerees have received compensation under the Clean Hands Act. “Now, perhaps, this might open the door for 10." Meanwhile, the Alabama Committee on Compensation for Wrongful Incarceration is considering an application to grant $1.5 million in compensation to Anthony Ray Hinton. The amount is based on the 30 years Hinton was wrongfully incarcerated. Two Assistant Attorneys General have written conflicting letters to the committee, with one stating, "I have found no information that indicates that Mr. Hinton's application is disqualified by any of the eligibility exceptions," while the other claims, "The fact that thirty years later different ballistic experts are unable to say conclusively that this gun fired the fatal shots, without the benefit of the original test fired projectiles used by the original examiners, is not evidence of innocence." Sen. Paul Bussman (R-Cullman) has introduced a bill to compensate Hinton $1.5 million, to be paid over a three-year period. He criticized the notion that a wrongly convicted person should be denied compensation when the state lacks evidence to convict, saying, "We can't convict someone in the court of public opinion. ... It has to be in a court of law."


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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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EDITORIALS: Colorado Newspapers Support Bill to Repeal Death Penalty

As Colorado's Senate Judiciary Committee considers SB 95—a bill that would replace the death penalty with life in prison without the possibility of parole—the editorial boards of The Denver Post and The Durango Herald have urged the legislature to end capital punishment in the state. Colorado's death penalty system "is broken beyond repair and needs to be repealed," wrote The Denver Post​​. Repeal, it said, "would save the state millions in both the prosecution and defense of murderers and an untold number of judicial man hours that have so infrequently resulted in death." The Post editorial also highlighted the unwillingness of Colorado juries to impose death sentences, noting that the highly-publicized capital cases of James Holmes and Dexter Lewis both resulted in life sentences. The Durango Herald editorial board also called for repeal, agreeing with the arguments advanced by Republican legislators in the neighboring mountain states of Utah and Nevada that the death penalty "is a failed public policy, is a waste of taxpayer dollars, the risk of executing innocent people is too high and it causes unnecessary harm to victims’ families." The Herald editorial also emphasized the high cost of capital punishment—quoting estimates by the American Civil Liberties Union of Colorado "that the average death penalty trial costs $3.5 million, compared to $150,000 for a trial for life without parole"—and that Colorado has had only one execution in 50 years. In 2013, citing arbitrariness and unfairness in the application of the state's death penalty, Governor John W. Hickenlooper granted a reprieve to Nathan Dunlop, one of three men on Colorado's death row.  A 2015 study published in the University of Denver Law Review subsequently showed that prosecutorial decisions to seek the death penalty in Colorado "depend[] to an alarming extent on the race and geographic location of the defendant." All of Colorado's death-row prisoners are African-American men from the municipality of Aurora. SB 95 would apply prospectively to future crimes, but would not affect the cases of the prisoners currently on death row. [UPDATE: After holding hearings on SB 95, the Senate Judiciary Committee voted 3-2 to defeat the bill. The vote effectively ends death penalty repeal efforts in the state for the 2017 legislative session.] 


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Capital Sentencing Reform Bills Advance in Florida, Alabama

Legislative committees in Florida and Alabama have voted to advance bills that would reform capital sentencing procedures in those states that have been the subject of extensive constitutional challenges. In Florida, the Senate Criminal Justice Committee by a vote of 6-0 approved a bill that would require a jury to unanimously recommend a death sentence before the trial judge could sentence a defendant to death. The bill would bring Florida's sentencing procedure in line with a Florida Supreme Court ruling that had declared unconstitutional death sentences that were imposed after one or more jurors had recommended a life sentence. In Alabama, the Senate Judiciary Committee approved a bill to end Alabama's practice of judicial override. Alabama is currently the only state that allows judges to override a jury's recommendation of a life sentence and impose a death sentence. Senator Dick Brewbaker (R - Montgomery), who sponsored the bill, raised concerns about political pressure on elected judges. A majority of overrides in the last 10 years happened in election years. “I’m not saying anyone has any evil intent,” Brewbaker said. “I’m not arguing about constitutionality, but there’s no way to take politics out of politics. It’s like taking the wet out of the water. It can’t be done.” According to research by the Equal Justice Initiative, judges have used their override power to impose death sentences over jury recommendations for life 101 times, but overrode jury recommendations for death and imposed life sentences just 11 times. The U.S. Supreme Court has remanded four death penalty cases to Alabama's courts for a determination of the constitutionality of the state's sentencing practices—including judicial override. The Alabama courts have upheld the practice, and in December 2016, Alabama executed Ronald Smith despite a 7-5 jury recommendation that he be sentenced to life.


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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."


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With Bipartisan Sponsors, Washington Attorney General, Governor Propose Bill to Abolish State's Death Penalty

With the support of a bipartisan group of state officials and legislators, Washington Attorney General Bob Ferguson (pictured) and Governor Jay Inslee have proposed legislation to repeal the state's death penalty and replace it with a sentence of life without parole. At a news conference announcing the bill, Ferguson, a Democrat, was joined by former Attorney General Rob McKenna, a Republican, in calling for abolition. The bill will be sponsored by Republican Senator Mark Miloscia and Democratic Representative Tina Orwall. “Legislatures are acting on this important issue with up-and-down votes,” Ferguson said during the news conference. “And it’s time for Washington, the state Legislature here, to take that vote.” The state's death penalty, he said, "isn’t working anymore. It is time to move on.” Governor Inslee said the evidence about the death penalty "is absolutely clear. ... Death-penalty sentences are unequally applied in the state of Washington, they are frequently overturned and they are always costly.” Inslee, who imposed a moratorium on executions in 2014 and issued a reprieve to Clark Richard Elmore on December 29, 2016, said, “I could not in good conscience allow executions to continue under my watch as governor under these conditions.” Washington juries have imposed few death sentence in recent years, and two high-profile murder cases ended in life sentences. In response, the Washington Association of Prosecuting Attorneys called for a voter referendum on the issue. A 2015 Seattle University study examining the costs of the death penalty in the state found that each death penalty prosecution cost an average of $1 million more than a similar case in which the death penalty was not sought. Despite bipartisan support, the future of the abolition bill is uncertain. A 2015 repeal bill, also sponsored by Miloscia, never received a committee hearing.


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