Executions

Alabama Governor Calls Life “Precious” and “Sacred,” Then Denies Clemency to Michael Samra

Alabama Governor Kay Ivey has drawn criticism for denying clemency and presiding over the execution of Michael Samra (pictured) on May 16, 2019, one day after issuing a statement calling Alabama a pro-life state and declaring life “precious” and “sacred.” On May 15, Ivey signed into law a bill that criminalizes abortion, saying that the new law “stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” After Samra’s execution the following evening, her office issued a statement that “Alabama will not stand for the loss of life in our state, and with this heinous crime, we must respond with punishment. ... This evening justice has been delivered to the loved ones of these victims, and it signals that Alabama does not tolerate murderous acts of any nature.”

Ivey’s actions prompted rebukes from liberal and conservative quarters and renewed the question of whether one who supports capital punishment can be considered “pro-life.” “It’s a contradiction that I always observed,” said Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty. Supporting the death penalty, Ms. Cox told The New York Times, is “a stance that cheapens the pro-life argument.” Krisanne Vaillancourt Murphy, executive director of the Catholic Mobilizing Network, an anti-death penalty advocacy group, said “[p]ro-life values are meaningless when they are inconsistent.” She said that “[t]he sanctity of human life applies to each and every person, innocent and guilty,” and that a person’s dignity “is not lost even after the commission of very serious crimes.”

Ivey’s actions also were criticized in articles in The Los Angeles Times and CNN. Los Angeles Times opinion writer Scott Martelle highlighted some of the seven executions Ivey has overseen, including Walter Moody, the oldest person executed in the U.S., and Domineque Ray, a Muslim prisoner who was denied the presence of his imam during his execution. “Apparently, Ivey’s not averse to returning some of God’s sacred gifts,” Martelle wrote. “If Ivey had the courage of her convictions, she would use her authority as governor to grant clemency to [the] 181 people facing execution in Alabama. That act would … remove the cloud of hypocrisy hovering over Montgomery.” In a CNN commentary, Jay Parisi wrote: “The anti-abortion movement raises a question about capital punishment that must be answered. If the 25 white men who voted in the Alabama senate for a near-total ban on abortion were really serious about the ‘right to life,’ would they not have simultaneously banned capital punishment? The death penalty is a clear violation of this right ….” Parisi called it “deeply ironic that the seven states that have passed tighter abortion laws are also actively open to killing live human beings by lethal injection or electrocution.”

The week before Samra’s execution, Cox authored a commentary for Newsmax in which she critiqued the “inconsistency” and “hypocrisy” of arguments by people who identify themselves as pro-life, yet support capital punishment. “[A]s a Christian,” she wrote, “I believe that all life has inherent value that cannot be won or lost by anything we do, but rather that is based on all being created in the image of God.” She addressed the oft-repeated reasoning that only innocent life deserves to be protected, explaining, “there are countless innocent people caught up in the criminal justice system, and certainly on death rows. To date, one person has been exonerated from death row for every ten executions. You cannot buttress your belief in capital punishment with the reasoning that you only think innocent life should be protected." Cox said, “The vast majority of people who commit harm were first victimized numerous times — often as children — before they became violent. ... You cannot say you care about the lives of young children and want to protect them from harm, and then believe they should be executed when they are harmed and end up perpetuating the cycle of violence.”

Cox told The New York Times that the pro-life dialogue about the death penalty continues to shift, notwithstanding the events in Alabama. Growing conservative opposition to capital punishment, she said, is evidenced by the introduction of Republican-sponsored bills to repeal the death penalty in 11 state legislatures in 2019.

Death-Penalty Opinions Expose Deep Divisions on U.S. Supreme Court

In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.

In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.

In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease

In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.

In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.

Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”

In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

Federal Court Orders Alabama to Release Execution Protocol

In a victory for the media and advocates of open government, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must disclose key portions of its highly secretive lethal-injection execution protocol to the public. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the protocol, which came under intense scrutiny in the wake of Alabama’s failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.

Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He argued that his veins had been compromised by his illness and executing him by lethal injection would constitute cruel and unusual punishment. The courts permitted the execution to proceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, executioners tried and failed for two-and-one-half hours to set an intravenous execution line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution but told the media, “I wouldn’t characterize what we had tonight as a problem.” Dunn repeatedly asserted the state had followed its execution protocol and claimed the execution had been halted only because the late court rulings in the case did not leave corrections personnel sufficient time to execute Hamm before his death warrant would have expired. Hamm filed a federal civil-rights lawsuit seeking to prevent Alabama from attempting to execute him a second time. As part of that suit, he filed a doctor’s report—the only public document describing the circumstances of the execution attempt—that indicated execution personnel had unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. Shortly thereafter, Hamm and the state reached a confidential settlement in which Alabama agreed not to seek another execution date, the court records of the case would be sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not disclose any additional information about the case. In the aftermath, the three media outlets filed a motion to gain access to the protocol and execution records. A federal district court ruled in their favor in May 2018.

Alabama appealed that ruling, arguing that the lethal-injection protocol had never been formally filed with a lower court, and therefore was not a court record subject to public access. The appeals court rejected that argument, with Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have been formally filed under the rushed timeline of Hamm’s approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court’s resolution of the substantive motions in Hamm’s as-applied challenge to the protocol.” The decision also addressed the importance of transparency to the public, saying “Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”

Alabama’s execution secrecy has been at the core of several other execution controversies. In December 2016, execution witnesses reported that Ronald Smith clenched his fists and gasped repeatedly for nearly fifteen minutes. After the execution, Dunn told the public only that the state had “followed [its] protocol.” State officials later refused to provide any documentation about the execution. In February 2019, late disclosure of its secret protocol provision mandating that a Christian chaplain—and no other religious adviser—be present in the execution chamber led to the controversial execution of Muslim prisoner Domineque Ray without affording him access to an imam at the time of his execution.

Texas Executes Robert Jennings in Nation’s First Execution of 2019

Texas executed Robert Jennings (pictured) on January 30, 2019 for the 1988 murder of Houston police officer Elston Howard, amid questions as to his eligibility for capital punishment and the constitutionality of his death sentence. Jennings was convicted under a sentencing procedure that the U.S. Supreme Court had struck down shortly before his trial in 1989 because it did not adequately allow jurors to consider evidence supporting a sentence less than death. The jury instructions given in his case to redress that error were also later declared unconstitutional, and 25 Texas death-row prisoners had their death sentences overturned as a result. However, Jennings’s court-appointed trial and appeal lawyers failed to raise the issue in Texas state court and the Texas federal courts refused to consider the issue on the grounds that the state court lawyers had procedurally defaulted the claim. The U.S. Supreme Court later changed federal habeas corpus procedures to permit review if ineffective state-court representation caused the default. But when Jennings’s federal lawyers attempted to raise the issue again, the Texas federal appeals court ruled on January 28 that its prior decision had not been based on procedural default and that it had already rejected the claim. Without comment, the Supreme Court issued an order on January 30 declining to hear Jennings’s case, and he was executed.

In challenging Jennings’s death sentence, his current lawyers also argued that both Jennings’s trial lawyer and his previous appellate attorney provided inadequate representation. Jennings’s trial attorney was defending two death-penalty cases at the same time and did not investigate significant mitigating evidence that included Jennings’s history of brain damage from a car crash and an injury with a baseball bat, an IQ of 65, and intellectual and adaptive deficits associated with his low IQ. Trial counsel also failed to present readily available evidence of Jennings’s impoverished, abusive, and neglectful upbringing: he was born as the result of a rape, and his mother frequently told him she did not want him. His original appeal lawyers also failed to raise these issues. Edward Mallett, one of Jennings’s current lawyers, said, “There has not been an adequate presentation of his circumstances including mental illness and mental limitations.”

U.S. District Judge Lynn Hughes took the unusual step earlier in January of asking the state to consider supporting clemency for Jennings, citing the 30-year delay between the crime and the scheduled execution. Jennings's attorneys argued in his clemency petition that the state had granted clemency last year to a white death-row prisoner with fewer mitigating circumstances. "Denying a commutation truly will demonstrate that race, class, and privilege matter in determining who is executed in Texas," attorney Randy Schaffer wrote. "This would send a terrible message to the world."

Six Ex-Governors Urge Gov. Jerry Brown to Clear California’s Death Row

Six former governors have urged California Governor Jerry Brown (pictured) to “be courageous in leadership” and grant clemency to the 740 men and women on California’s death row before he leaves office on January 7, 2019. In a December 13 op-ed in the New York Times, the former governors—Ohio’s Richard Celeste, Oregon’s John Kitzhaber, Maryland’s Martin O’Malley, New Mexico’s Bill Richardson and Toney Anaya, and Illinois’s Pat Quinn—wrote that “Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives... Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.”

The governors called signing a death warrant “a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.” Each of the former governors granted clemency to at least one death-row prisoner during their tenures in office, and Anaya, O’Malley, and Quinn commuted the death sentences of all the prisoners on their states’ death rows. The ex-governors said, “we know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension. ... If the state were to execute a single person every day, people would still be waiting on death row after two years.”

In late November, three former Ohio governors, Richard Celeste, Bob Taft, and Ted Strickland gave a joint interview to the Columbus Dispatch in which each told the paper that the toughest burden he had to bear as governor was deciding whether a condemned prisoner should live or die. Celeste commuted the death sentences of eight prisoners—four men and all four women on the state’s death row—towards the close of his second term. Although no one was executed during his eight years in office, Celeste said, “[a]s I look back on it, if I had really ... been bold, I would have ... just sa[id], ‘I’m going to commute them all to life [sentences], without the benefit of parole.’” Strickland said his biggest regret was not stopping executions in his state. “I wish I had done what my friend Jay Inslee, who’s the governor of Washington state, did when he became governor. He just said, ‘There will be no executions as long as I’m the governor of the state of Washington.’ And I wish I had had the courage to make that decision.” Strickland granted clemency five times, but allowed 17 executions to go forward. “I’m just convinced as long as we have the death penalty, innocent people are going to lose their lives .... [O]ur judicial system has serious problems that need attention,” he said.

In their New York Times op-ed, the six former governors wrote: “The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.” Brown, they said, should commute California's entire death row or “declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair.” At an international conference on the death penalty at the Italian Parliament in November, the Community of Sant’ Egidio—a Catholic group with close connections to Pope Francis—and representatives of 25 countries, including the justice ministers of South Africa, Benin, Zimbabwe and Malaysia also called upon Brown to commute all death sentences in the state before leaving office.

Kentucky Joins States With No Executions for at Least Ten Years

On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.

Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”

Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.

Law Review: Junk Mental Health Science and the Texas Death Penalty

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify 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. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”

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