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Federal Appeals Court Finds Alabama Prisoner Incompetent To Be Executed

The U.S. Court of Appeals for the Eleventh Circuit ruled on March 15 that Alabama death-row prisoner Vernon Madison (pictured)—who was spared execution last May when the U.S. Supreme Court deadlocked at 4-4 on whether to lift a stay—is not mentally competent to be executed. The appeals court overturned an Alabama state court ruling, saying that the state court had unreasonably determined the facts when it concluded that Madison was aware of the reasons for his impending execution. “The only evidence in the record that does address this issue demonstrates that, due to his serious mental disorder, Mr. Madison does not understand the connection between his crime and his execution,” Judge Beverly Martin wrote. Under the 1986 Supreme Court ruling Ford v. Wainwright, the execution of individuals who lack a rational or factual understanding that they will be executed and the reason for their execution constitutes cruel and unusual punishment, in violation of the Eighth Amendment. The court found that the record contained uncontroverted evidence that Madison has "memory loss, difficulty communicating, and profound disorientation and confusion," in part caused by two debilitating strokes in 2015 and 2016. As a result, he no longer remembers the crime for which he was sentenced to death, nor does he understand why he was to be executed. He asked the prison to notify his mother of one of his strokes, but she had been dead for several years. The court noted that Madison is, "legally blind, cannot walk independently, is incontinent and has slurred speech.” Madison is one of the longest serving death-row prisoners in Alabama, having been tried three times for the 1985 murder of a Mobile police officer. His first conviction was overturned because of racially biased jury selection. His second conviction was reversed because prosecutors presented illegal evidence. At his third trial, the jury voted 8-4 to recommend that Madison receive a life sentence, but the judge overrode the jury's verdict and sentenced him to death. In 2016, the Eleventh Circuit granted Madison a stay of execution just hours before he was scheduled to die, in order to consider his incompetency claim, and the Supreme Court split on the prosecution's motion to vacate the stay, leaving the appeals court's decision in place. 


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Exoneree Urges Dallas Prosecutor to Drop Death Penalty Against Veteran With PTSD

Texas capital murder exoneree Christopher Scott (pictured) has urged Dallas County's new District Attorney, Faith Johnson, to drop the death penalty from murder charges pending against Erbie Bowser. Bowser, who is black, is a seriously mentally ill Marine veteran who was discharged from military service after having been diagnosed with Post-Traumatic Stress Disorder. He faces four capital charges in the killings of his girlfriend, his estranged wife, and their daughters. When police found him, he was reportedly reciting his name, rank, and serial number, and the medical staff at the hospital to which he was taken him described him as delusional. In a guest column for the Dallas News, Scott—who served 12 years of a life sentence for a murder he did not commit—writes that the Dallas DA's office "has failed the African-American community for generations," and says that "[t]he Bowser case offers an opportunity for Johnson to change the way her office has historically treated African Americans accused of committing capital crimes." He notes that in 2013, the Dallas District Attorney's office "agreed not to seek the death penalty in a nearly identical case involving a white defendant, William Palmer[, who had] stabbed his wife and both her parents to death while his wife's sister and her six-year-old hid in a closet." Dallas has long been criticized for its history of racial bias in enforcing its criminal laws, including bias in jury selection and the application of the death penalty. During the 30-year administration of Henry Wade, the office produced a training manual instructing prosecutors to exclude people of color from juries, and in a death penalty decision in 2005, the U.S. Supreme Court found that black people in Dallas County had been "almost categorically ... excluded from jury service." The racially disproportionate use of the death penalty has continued in subsequent prosecutorial administrations. A report from the Fair Punishment Project identified Dallas is one of only 16 U.S. counties that imposed five or more death sentences between 2010 and 2015; seven of the eight people sentenced to death in that period were black. Johnson, whom Wade hired in 1982, is the first African-American woman to serve as District Attorney and Bowser's case is considered a barometer of the path she will follow in capital prosecutions. In addition to the issue of racial fairness, Bowser's case presents serious questions about the appropriateness of the death penalty for defendants with severe mental illness, and in particular, veterans with PTSD. Bowser has a history of hallucinations and psychosis stretching back to his adolescence, and reportedly was on more than a dozen medications, including sedatives and antipsychotics, at the time of his arrest. So far this year, seven states have proposed legislation to exempt people with serious mental illness, including PTSD, from the death penalty. 


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American Bar Association Human Rights Magazine on Capital Punishment

Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question." 


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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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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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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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REPORT: 5 Florida Counties Disproportionately Impose Death Penalty Against Seriously Mentally Impaired Defendants

Nearly two-thirds of death row prisoners in five Florida counties whose cases were studied by Harvard University's Fair Punishment Project suffer from serious mental impairments. According to a report released by the project on January 12, 2017, the Florida Supreme Court's December 2016 ruling in Mosley v. State requires reconsideration of the sentences imposed on approximately 150 people on Florida's death row who were sentenced to death after the U.S. Supreme Court decided RIng v. Arizona in 2002. Based on Ring, Florida's death sentencing procedures were later ruled unconstitutional. Nearly one-third of the death sentences in question were imposed in just five Florida counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas. The Fair Punishment Project report examines the 48 death sentences from those counties that involved non-unanimous jury recommendations of sentence or waivers of jury sentencing proceedings, and finds that in 63% of those cases, the defendants "exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred." Those impairments, the report argues, makes the death penalty disproportionate for those defendants. Defendants in more than a third of the cases (35%) had low IQ scores or traumatic brain injury that left them with deficits similar to people with intellectual disability, whose diminished culpability makes them constitutionally ineligible for the death penalty. Approximately 1/5th of the 48 defendants presented symptoms or diagnoses of severe mental mental illness; approximately 23% had experienced severe childhood or emotional trauma; and 6 were under the age of 21 at the time of the offense. More than a quarter—such as Victor Caraballo, who was sentenced to death in Miami-Dade County despite an "extensive history of mental illness," as well as serious trauma stemming from "child abuse, incest, and neglect"—had overlapping impairments from multiple categories. The report concludes, "These findings have raised a legitimate question as to whether Florida’s capital punishment scheme–even one with a unanimous jury requirement– is capable of limiting application of the death penalty to the most culpable offenders."


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