Death Row

Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”

Virginia Death-Row Prisoners Win “Landmark” Prison Conditions Lawsuit

In what lawyers for Virginia death-row prisoners have called “a landmark ruling,” a federal judge has issued an injunction barring the Commonwealth from subjecting prisoners who have been sentenced to death to automatic solitary confinement, physical isolation from visitors and other prisoners, and other harsh conditions. In a decision issued on February 21, Judge Leonie M. Brinkema wrote that the conditions to which Virginia subjected death-row prisoners before instituting reforms in 2015 violated the Eighth Amendment proscription against cruel and unusual punishments. Virginia had refused to commit to keeping the reforms, which it adopted only after the prisoners initiated suit, and the court's order prevents the state from reverting to the prior unconstitutional conditions. Before 2015, death sentenced prisoners spent about 23 hours a day alone in a 71-square-foot prison cell and were separated from visitors—including family members—by a plexiglass wall, although the warden had discretion to permit contact visits with family. For one hour a day, five days a week, prisoners were taken to a small “outdoor cell” with a concrete floor and no exercise equipment. Death-row prisoners were barred from the recreational facilities used by prisoners in the general population and allowed to shower only three times per week. Brinkema decided in favor of the three remaining death-row prisoners who had sued the state in 2014. While the suit was pending, one of the orginal plaintiffs, Ricky Gray, was executed and another, Ivan Teleguz, was granted a commutation. Lawyers for the prisoners said Brinkema's decision was the first time a court had ruled such conditions unconstitutional. In granting the prisoners' petition, the court said that “the rapidly evolving information available about the potential harmful effects of solitary confinement” set this case apart from prior prison-conditions lawsuits, and as a result the prior “decades-old determinations” by the Supreme Court and federal appeals court upholding death-row prison conditions were not binding. “As courts and corrections officers across the country have begun to realize, the years-long isolation that the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm,” Brinkema wrote. Kathryn Ali, one of the lawyers for the prisoners, said “[t]he law in this area is very bad but it's also very old. ... Judge Brinkema's ruling is a landmark ruling but i think its also just common sense, that we shouldn't be torturing people by keeping them in isolation.” Victor M. Glasberg, who filed the lawsuit on behalf of the five original plaintiffs in 2014, said the court's decision could have implications for prison-conditions lawsuits in other states. “This opinion should serve as a snowball let loose at the top of a snowy mountain, to turn into an avalanche as advocates in other states bring similar suits to end what has become increasingly recognized as untenable conditions in which to hold human beings,” he said. Under the reforms Virginia implemented in 2015, death-row prisoners are permitted to have contact visits with family members one day per week, for up to an hour and a half, as well as non-contact visits on holidays and weekends. They now have access to a covered outdoor yard for up to an hour and a half per day, five days a week. The yard has a basketball court and exercise equipment, which up to four prisoners at a time may share. Virginia now also permits daily one-hour access for up to four prisoners at a time to an indoor recreation space that has games, music, and a television. Death-row prisoners also are now permitted to shower daily.

Pennsylvania Death-Row Prisoners File Lawsuit Challenging Automatic, Permanent Solitary Confinement

Five prisoners on death row in Pennsylvania have filed a class-action lawsuit challenging the Commonwealth's policy mandating solitary confinement for all condemned prisoners. The five named plaintiffs have been held in solitary confinement between 16 and 27 years each, kept in cells the size of a parking space, allowed out for a maximum of two hours per day for exercise, and denied human contact with family members during prison visits. The prisoners, represented by the American Civil Liberties Union, the Abolitionist Law Center, and three law firms, call these conditions "degrading" and "inhumane" and say the "policy and practice of automatically and permanently placing all death-sentenced prisoners in solitary confinement" is unconstitutionally cruel and unusual punishment. David Fathi, director of the ACLU National Prison Project, said Pennsylvania's death-row solitary confinment "until either the prisoner is executed, or dies of natural causes, or has his death sentence overturned is very different from the way solitary confinement is used for all other prisoners. For all other prisoners, you earn your way in and you earn your way out. You serve your punishment, and, if you behave, you can come back to the general population.” While many states still keep death-row prisoners in solitary confinement, that practice is changing. At least eight states have recently allowed death-row prisoners more time outside their cells, including Arizona, which changed its policy in 2017 in response to a similar lawsuit. According to the Pennsylvania suit, however, about 80% of those currently on death row have been held in solitary confinement for more than ten years. The United Nations' Standard Minimum Rules for the Treatment of Prisoners prohibits solitary confinement for periods longer than 15 days. One of the named plaintiffs in the lawsuit who has been held in solitary confinement for 21 years "describe[d] his experience as ‘psychological torture,’ where prisoners are ‘treated like animals’ and forced to ‘depend on everybody for everything.'" The lawsuit says "[h]e feels ‘trapped in [his] cell’ – and his ‘mind is like a popcorn machine.’” Pennsylvania's death-row conditions were challenged in 1980, but upheld by a federal court. “In the intervening time, there has been a sea change in the scientific understanding of solitary confinement and increasing recognition by the courts that this crosses constitutional boundaries when it is prolonged,” said Bret Grote of the Abolitionist Law Center. Just last year, a federal court ordered Pennsylvania to end its practice of keeping prisoners in solitary confinement even after their death sentences had been vacated, until they were formally resentenced or released. The retrial or resentencing process often took many years and, in some cases, took decades.

Lawsuit: Nebraska Vote to Restore Death Penalty Does Not Apply to Those Previously Sentenced to Death

The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a lawsuit on behalf of the state's eleven death-sentenced prisoners seeking to bar Nebraska "from carrying out any executions or taking steps toward carrying out any executions" under the November 2016 voter referendum that restored that state's death-penalty law. The lawsuit, filed in Lancaster County District Court on December 4, argues that the voter referendum amounted to an "unlawful exercise of legislative power by the executive branch," in violation of the separation of powers clauses of the Nebraska constitution, because Governor Pete Ricketts (pictured), his staff, and other members of the Nebraska executive branch "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law. It also alleges that the May 2015 legislative repeal of the death penalty went into effect on August 30, 2015, and converted the prisoners' death sentences to life sentences before the petition drive suspended the repeal statute. While proponents of the referendum submitted their petitions to place the referendum on the ballot on August 25, the signatures were not validated by the Secretary of State and, according to the lawsuit, did not suspend the statute until October 2015. The Governor's office characterized the lawsuit as "frivolous litigation" by a "liberal advocacy group ... work[ing] to overturn the clear voice of the Nebraska people." The Nebraska legislature voted three separate times in 2015 in favor of abolishing the death penalty, with a majority of the legislature's 30 Republicans joined by 12 Democrats and an Independent supporting repeal. After two preliminary votes in April and early May, the unicameral legislature on May 20 voted 32-15 to repeal its death penalty and replace it with a sentence of life without possibility of parole. Governor Ricketts vetoed the bill, but a supermajority of the legislature, led by conservative Republicans, voted 30-19 on May 28 to override the veto. Four days later, a committee called Nebraskans for the Death Penalty filed sponsorship documents with the Nebraska Secretary of State seeking a referendum to suspend and overturn the repeal. The complaint alleges that the Governor was the actual sponsor of the referendum campaign and that, in violation of Nebraska law, none of the ostensible "sponsors" of the referendum submitted statements "sw[earing] to the truth and accuracy of their sponsorship." It says that Ricketts and his parents provided 80% of the funding for the petition drive in its first month and 30% of the total funding for the campaign to overturn the repeal, used state facilities to raise funds for the referendum campaign, and mailed a fundraising letter with the letterhead “Governor Pete Ricketts, State of Nebraska,” and that members of Rickett's executive branch served as campaign managers or otherwise worked for the referendum campaign. “[I]n Nebraska, our state Constitution ... establishes a strong tradition with a clear separation of powers," ACLU Executive Director Danielle Conrad said. ""This is way beyond what the governor can do in his personal capacity. This is about blurring the lines and overstepping the bounds.”

Ex-Virginia Death-Row Prisoner With Strong Claim of Innocence Get Parole After 38 Years

Joseph M. Giarratano (pictured), a former Virginia death-row prisoner who came within two days of execution, has been been granted parole after 38 years in jail for a rape and double murder that lawyers and supporters have long said he did not commit. On November 20, twenty-six years after Governor L. Douglas Wilder commuted Giarratano's death sentence to life, the Virginia State Parole Board voted to grant him parole. Giarratano was convicted and sentenced to death in Norfolk, Virginia in 1979 for the rape and capital murder of a fifteen-year-old girl and the murder of her mother. Giarratano had lived in their apartment—which was known as a "party house" with a free flow of visitors—in the month before the murder and was there the night of the murders, but because of drug use, he says, he has no recollection of what happened. He said he woke up on the couch, discovered the bodies, and because no one else was in the apartment, he assumed he had committed the killings. He fled to Florida, where he turned himself in to a sheriff at a Jacksonville bus station and confessed to the murders. Over the course of time, Giarratano gave a total of five confessions, which were inconsistent with one another and conflicted with the evidence at the crime scene. Footprints, fingerprints, and pubic hairs were recovered at the crime scene and did not match either Giarratano or the victims. Experts indicated that the killer was right-handed, but Giarratano is left-handed. Giarratano's confessions were so inconsistent that detectives told him they did not believe him and, he said, provided him with detailed information that he then parroted back to them in his fifth confession. Gerald Zerkin, one of Giarratano’s lawyers, said "[t]here is nothing in the physical evidence that links Joe to the murders.... The prosecution’s whole case hinged on Joe’s confessions, which were total nonsense.” Leading experts on false confessions concluded in 2001 that there was "not a shred of significant or credible physical evidence supporting the conclusion that Joseph Giarratano’s contradictory and inconsistent confessions are reliable" and that considerable evidence led to "the conclusion that his confessions are false." While on death row, Giarratano became an avid reader and an advocate for other condemned prisoners, assisting in the exoneration of Earl Washington, a wrongfully convicted intellectually disabled man who came within eight days of execution. Giarranto was also the named party in a U.S. Supreme Court case, Murray v. Giarratano, in which Giarratano and others challenged Virginia's failure to provide post-conviction attorneys for condemned prisoners. The Court ruled 5-4 against the prisoners. Following his transfer off death row to the Augusta Correctional Center, Giarratano helped found the Center for Teaching Peace, a peace education program for prisoners. The state parole board's decision marks the first time in modern Virginia history that a defendant whose death sentence was commuted was granted parole. Richmond lawyer Stephen A. Northup represented Giarratano before the parole board and said, “For all the reasons that caused Governor Wilder to give Joe a conditional pardon more than 26 years ago, I believe Joe is innocent of the crimes for which he was convicted.”

Lawyer Says North Carolina Client's Brutally Traumatic Childhood Characteristic of Many on Death Row

The life of Terry Ball (pictured) "is worth remembering," says his appeal lawyer, Elizabeth Hambourger. She says Ball's life, which ended October 18 when he died of natural causes on North Carolina's death row, "hold[s] keys to understanding the origins of crime and our shared humanity with people labeled the worst of the worst." His "story of childhood trauma and brain damage" is characteristic of the backgrounds of many on death row, Hambourger says, but "was barely told at trial." Ball was convicted and sentenced to death for the cocaine-induced murder of his pastor's wife and attempted murder of his pastor in 1993, which occurred during a relapse of Ball's cocaine addition. His road to death row began when he was hit by a car at age 10, suffering injuries that kept him hospitalized for eight weeks. The head trauma changed his personality, but the severity of his brain damage was not detected at the time. He and a girlfriend ran away from home when he was 13, during which time he was abducted by a serial rapist, Jerry Wood, and repeatedly raped, kept high on drugs, and forced to steal, until he was able to escape nearly a month later. Rather than receiving mental-health services as a victim of sexual assault, Ball was adjudicated delinquent for running away and was incarcerated in a juvenile detention center, where a state psychiatrist questioned his sexual identity, writing that his month-long "association" with his rapist "raised the question of possible homosexuality." Wood, who was never prosecuted for raping and abducting Ball, was later convicted of raping two other children and sentenced to 45 years in jail. Ball then turned to drugs as self-medication for his trauma. He later enlisted in, but was swiftly discharged from, the Navy and subsequently committed several violent drug-motivated robberies and was jailed for nearly killing two people. After his release from prison, he checked himself in to three treatment centers over the course of three years, all in an unsuccessful effort to overcome his addiction to crack cocaine. Hambourger says that Ball's story is a reminder that "[t]his is who we sentence to death: the most damaged, the most abused; traumatized children who grow into adults without learning how to cope with their fear and anger." In North Carolina, death sentences have fallen from an average of 28 per year in the five years spanning 1992-1996 to an average of one per year between 2012-2016. Hambourger believes that, had Ball's trial been held today, "this mitigating evidence would have been thoroughly presented and likely would have persuaded a jury to sentence him to life without parole instead of death."

Virginia, Pennsylvania Death Rows Smallest in a Quarter Century as Death Sentences Show Long-Term Decline

Death rows are shrinking nationwide, and the experience in states like Virginia and Pennsylvania helps explain why. Virginia's death row has fallen from a reported high of 58 in 1995 to four in September 2017, the lowest it has been since 1979. Pennsylvania's death row of 160 prisoners is its smallest in nearly 25 years—down from 175 last December and from a reported 247 in April 2002. These declines mirror the national trends, as the number of prisoners removed from death row continues to outstrip the number of new death sentences imposed. In May 2017, a Bureau of Justice Statistics report showed that the population of death row nationwide had decreased for 15 consecutive years. Although Virginia has executed more prisoners since 1976 than any other state but Texas, executions do not by themselves account for the magnitude of the decline, and Pennsylvania's death row has shrunk despite not having executed anyone this century. A combination of exonerations, court decisions overturning death sentences, commutations, and deaths while appeals were underway have also removed significant numbers of prisoners from the two Commonwealths' death rows. Moreover, as in states like Georgia and Missouri that have been among the nation's most prolific recent executioners, the increase in executions has been accompanied by a decrease in the number of new death sentences imposed by juries. State Delegate Robert B. Bell, a death-penalty proponent who chairs the Virginia State Crime Commission, said obtaining the death penalty has become “an arduous endeavor for prosecutors,” requiring expenditures of staff time and financial resources that small counties cannot afford. As in Georgia and Texas, which have experienced major declines in new death sentences, Virginia also has made trials fairer by creating regional capital defense offices that provide better representation to indigent defendants at trial and by informing juries that capital defendants who are sentenced to life in prison will not be eligible for parole. Low murder rates and historically low public support for the death penalty also have contributed to the decline in new death sentences. In Pennsylvania, more than fifty defendants have been removed from death row in the past decade as their convictions or death sentences were overturned and they were resentenced to terms of life or less, and more have had their sentences overturned in the interim. Recently, the removal of prisoners from the Commonwealth's death row accelerated after a federal appeals court struck down the state's long-standing practice of automatically keeping capital defendants in solitary confinement until they had completed their retrial or resentencing proceedings, even after courts had overturned their death sentences.

Florida Death-Row Population Drops to 12-Year Low As Jury Unanimity Ruling Takes Effect

The number of prisoners on Florida's death row is now lower than it was on June 30, 2005, as the pace of death sentencing slows and courts reverse the unconstitutional non-unanimous death sentences by which numerous capital defendants had been condemned. Applying the U.S. Supreme Court's 2014 ruling in Hurst v. Florida and subsequent Florida Supreme Court decisions in Hurst v. State and Perry v. State, state courts declared unconstitutional Florida's practice of permitting trial judges to impose death sentences after sentencing juries had not reached a unanimous agreement that death was the appropriate punishment. As a result, death sentences have been vacated in nearly 100 cases, and additional cases are working their way through Florida's court system. So far this year, 15 people have been removed from Florida's death row, and a 16th died after having his death sentence vacated under Hurst, while being transfered to a court hearing. The declining population on death row is not being replaced with new death sentences; the state's last death sentence was handed down in June 2016 and more than 3/4ths of death sentences imposed in the previous five years had involved non-unanimous jury votes for death. As a result, the number of prisoners housed on Florida's death row has fallen from 383 at the beginning of 2017, to 367—slightly lower than the 369 people who were on death row in 2005. Even more prisoners are expected to be removed from death row, as many of those whose death sentences have been invalidated are resentenced to life. (The Department of Corrections death-row roster only removes a prisoner from its list if the prisoner dies, receives clemency, is exonerated, or is resentenced to something other than death.) A DPIC review of Florida capital cases indicates that, through July 13, Florida courts have issued decisions involving Hurst in at least 119 cases. Those decisions have resulted in the vacation of 99 death sentences. To date, the counties most affected by the Hurst rulings have been: Duval (15 sentences); Orange (9 sentences); and Broward (9 sentences). In Duval County, 14 of the 15 death sentences reviewed (93.33%) have been vacated; in Orange County, all 9 death sentences reviewed have been vacated; and in Broward county, 7 of the 9 death sentences reviewed (77.78%) have been vacated. DPIC, in conjunction with researcher and professor Michael Radelet, has also identified at least 149 prisoners who are expected to obtain relief under the Florida court's current interpretation of Hurst, and is tracking what happens to those cases on resentencing. Former Florida Supreme Court Chief Justice Gerald Kogan said the resentencing hearings will present difficulties for the state's legal system: “That’s not an easy thing to go back and dig up all of this evidence and especially to dig up all the witnesses,” for a new sentencing hearing. “We have been very, very negligent in the state of Florida in handling these types of cases,” he said.

Pages