Arbitrariness

Alabama Cancels Cancer Surgery, Sets Execution Date for Terminally Ill Prisoner

Alabama has set an execution date for Doyle Lee Hamm (pictured), a 60-year-old man with terminal cranial and lymphatic cancer that his lawyer says has rendered his veins unusable for lethal injection. Hamm has received radiation and chemotherapy, and was scheduled for surgery to remove a cancerous lesion on December 13, but Alabama prison officials cancelled the surgery and instead informed Hamm that a death warrant had been issued scheduling his execution for February 22, 2018. In September, Hamm's attorney, Bernard Harcourt, asked anesthesiologist Dr. Mark Heath to examine Hamm to determine whether his veins would be suitable for the execution protocol. Dr. Heath found that Hamm has virtually "no accessible veins" in his arms and legs, and that his lymphatic cancer would complicate any attempts at the already challenging procedure of obtaining central vein access. Heath concluded, “the state is not equipped to achieve venous access in Mr. Hamm’s case.” In a commentary in The New York Times, Harcourt wrote that Hamm "will suffer an agonizing, bloody, and painful death” if prison officials proceed with the execution as planned. "Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner," Harcourt wrote. “Mr. Hamm’s serious and deteriorating medical condition poses an unacceptable risk that he will experience significant pain.” Andrew Cohen of the Brennan Center for Justice wrote in a December 15 commentary that Hamm's case "has come to symbolize the injustice of [Alabama's death-penalty] system. The idea that executioners want to make sure they kill Hamm before he dies of cancer, the fact that it is likely the lethal injection itself will cause him 'needless pain' before he dies, may be abhorrent but it's entirely consistent with the way state officials have handled Hamm's case for years." When Hamm was sentenced to death in September 1987, his jury did not unanimously agree on his sentence, but Alabama law permitted the trial judge to impose a death sentence based upon a jury's non-unanimous sentencing recommendation. At that time, Alabama was one of only three states to permit that practice; and now it is the only state to do so. Cohen wrote that Hamm's constitutional rights "were ignored in virtually every way" during the trial. "Witnesses changed their stories, ultimately testifying against him only after they were charged as co-defendants and made sweetheart plea deals. His trial lawyer did a miserable job during the mitigation phase, failing utterly to give jurors a fair sense of the intellectual disability, or perhaps brain damage, from which Hamm has suffered his whole life." During state post-conviction review of Hamm's case, the trial court denied his appeal by adopting verbatim an order written by the state attorney general's office, without even removing the word "proposed" from the title. In 2016, Hamm sought review of that practice from the U.S. Supreme Court, but the court declined to review his case.

DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

State Attorney Aramis Ayala's First Capital Prosecution Ends in Deal for Life in Prison

There will be no death penalty in the first capital prosecution authorized under the administration of Orange and Osceola County, Florida, State Attorney Aramis Ayala. In a case that rekindled the political confrontation between State Attorney Ayala and Governor Rick Scott over the use of the death penalty, Emerita Mapp (pictured) pleaded no contest on December 8 to one count of murder and a second count of attempted murder in exchange for a sentence of life without parole. The plea deal came just three days before the trial judge was scheduled to rule on Mapp’s motion arguing that the court should bar the death penalty in her case because the state attorney’s office had missed the filing deadline for seeking the death penalty. In March, State Attorney Ayala announced that her office would not seek the death penalty, saying that the use of the punishment was “not in the best interests of this community or in the best interests of justice." Scott responded by removing Ayala’s office from more than two dozen potential death-penalty cases over the course of several months, and replacing her with Lake County State Attorney Brad King. The move, which was opposed by civil rights groups and the Florida black legislative caucus, had unspoken racial undertones: Ayala, a Democrat, is Florida's only black elected state attorney; King, a Republican, is white and a vocal proponent of capital punishment. Ayala sued Scott, alleging that he had overstepped his powers, but in August 2017, the Florida Supreme Court upheld his actions, holding that Scott had acted “well within the bounds of the Governor’s broad authority.” Ayala said she respected the ruling and announced the formation of a panel to decide in which cases to pursue capital punishment. Mapp’s case was the first in which the panel had authorized the death penalty, but that authorization came 22 days after the deadline for providing notice of capital prosecution. That prompted another round of criticisms traded between Scott and Ayala as to who was to blame for missing the deadline.

Texas District Attorney Asks State to Spare Life of Man She Prosecuted Under Controversial “Law of Parties”

The Texas prosecutor who sought and obtained the death penalty almost 20 years ago against Jeffery Wood (pictured), a man who never killed anyone, has now asked that his sentence be reduced to life in prison. In a letter to the Texas Board of Pardons and Parole, sent in August and obtained December 7 by the Texas TribuneKerr County District Attorney Lucy Wilke asked the board to recommend that Governor Greg Abbott grant Wood clemency and commute his sentence to life in prison. In 1998, Wilke—then an assistant district attorney—prosecuted Wood for the 1996 murder of Kriss Keeran, a Kerrville convenience store clerk who was shot to death by Wood's roommate, Daniel Reneau, while Reneau was robbing the store. Reneau was executed. Wood, who has denied that he had any knowledge that Reneau was going to commit a robbery or had taken a gun into the store, was sitting outside in the truck when the shooting occurred. He was prosecuted for murder and sentenced to death under Texas’s felony-murder statute, commonly known as the law of parties, which holds an accomplice liable for the actions of every other participant in the crime, even if the accomplice did not know and did not intend that a murder would occur. Wood's case drew national attention when the state scheduled his execution for August 2016. At that time, a broad range of groups, including evangelical leaders, state representatives, and editorial boards, called for Wood to be spared. More than 50 House members of both parties signed on to a letter written by conservative Rep. Jeff Leach asking Gov. Abbott and the pardons board to reduce Wood's sentence. Six days before his scheduled execution, the Texas Court of Criminal Appeals stayed Wood's execution on unrelated grounds, sending his case back to the Kerr County trial court to review Wood’s claim his death sentence was the product of false predictions of future dangerousness by a psychiatrist, Dr. James Grigson, who had been expelled from the American Psychiatric Association and Texas Society of Psychiatric Physicians for his unprofessional practices. "Had I known about Dr. Grigson’s issues with said organizations, I would not have used him as the State’s expert witness in this case on the issue of future dangerousness,” Wilke wrote in the letter. Although Wilke actively pursued the death penalty against Wood, she told the pardons board that “the penalty now appears to be excessive.” “While I am aware that requests for clemency in Death Penalty Capital Murder cases are normally considered when there is an execution date pending,” Wilke wrote, “I respectfully ask that you consider this request for commutation of sentence and act on it now, in the absence of such an execution date, in the interest of justice and judicial economy." Along with the fact that he wasn't the shooter, Wilke cited Wood's below-average IQ of 80, his history of nonviolence, and Dr. Grigson’s testimony as grounds for clemency. The letter was co-signed by Kerrville Police Chief David Knight, who was an officer at the time of the murder, and District Court Judge Keith Williams, who is presiding over Wood's challenge to the constitutionality of the prosecution's use of "false testimony and false scientific evidence" from Dr. Grigson.

NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty

The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution. 

BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."

Anti-Death Penalty District Attorney Elected in Philadelphia, the Nation's 3rd Largest Death Penalty County

Philadelphia, Pennsylvaniathe nation's third largest death-penalty county—has elected as its new district attorney a candidate who ran on a platform of ending mass incarceration and eschewing use of the death penalty. Democrat Lawrence Krasner (pictured), a longtime civil rights lawyer and opponent of the death penalty, who once joked that he’d “spent a career becoming completely unelectable,” received 75% of the vote in easily defeating his Republican opponent Beth Grossman. As a civil rights and criminal defense attorney, Krasner had represented political protesters and Black Lives Matter activists, and had sued the Philadelphia Police Department on numerous occasions. He has likened use of the death penalty to "lighting money on fire,” saying that capital punishment “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962.” A July 2015 DPIC analysis of death sentences imposed in Philadelphia reported that at least 148 death sentences imposed in the city since Pennsylvania reinstituted the death penalty in 1974 had been overturned. In that time, one prisoner from Philadelphia—who voluntarily dropped his appeals—was executed. Krasner called his election a "mandate" for "transformational change." He said, "[t]his is a story about a movement. And this is a movement that is tired of seeing a system that has systematically picked on poor people—primarily black and brown poor people." Those are the people who, historically, have been most disproportionately affected by Philadelphia's death penalty. A major study of Philadelphia's death penalty in the 1980s and 1990s documented that black capital defendants faced more than triple the odds of being sentenced to death than did other defendants, and that an estimated one-third of the more than 100 African Americans who were on the city's death row at the turn of the century would have received life sentences but for their race. Another study showed that death-sentencing in the city was heavily influenced by a defendant's physical appearance: the probability that a black defendant charged with killing a white victim would be sentenced to death doubled if the defendant was perceived as having "stereotypically African" physical features—darker skin, a broader nose, and thicker lips. Even as the number of death sentences imposed in Philadelphia has dramatically declined—falling from an average of 9.9 death sentences per year in the 1990s to less than one sentence per year this decade—the racial disproportionality of the death sentences imposed in the city has grown. Nine of the 99 death sentences imposed in Philadelphia in the 1990s were directed at white defendants, as compared to only one of the 25 death sentences imposed this century, and 45 of the last 47 people sentenced to death in the city have been defendants of color. 

New Report Documents “Dramatic Rise” in Republican Support for Death-Penalty Repeal

"The death penalty is dying in the United States, and Republicans are contributing to its demise," concludes a new report, The Right Way, released on October 25 by the advocacy group Conservatives Concerned About the Death Penalty. The report traces "the dramatic rise in Republican sponsorship of bills to end the death penalty" and the trends that it says helped contribute to this rise. Based on this data, the report says "[m]ore Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it." The data in the report reflect both the emergence of Republican leadership in bills to repeal the death penalty and increased bi-partisanship in the sponsorship of these bills. Forty Republican legislators sponsored bills to abolish the death penalty in 2016, the report says, "ten times as many [who] sponsored repeal bills ... in 2000." It also reports that the percentage of repeal-bill sponsors who are Republicans has risen to 31%, a six-fold increase since 2007. The report highlights grassroots, party-level, and religious shifts in Republican views about and activism against the death penalty. In addition to the national Conservatives Concerned About the Death Penalty, conservative anti-death-penalty advocacy groups have formed in eleven predominently Republican "red states." In Kansas, the state Republican Party "removed its death penalty support from the Party’s platform in 2014" in favor of a neutral position and voted down an attempt to restore a pro-death penalty stance in 2016. The report also says Evangelicals are increasingly "forsak[ing] the death penalty," pointing to the public involvolvement of prominent Evangelical leaders opposing state efforts to carry out executions in a number of recent cases and the new policy of position the National Association of Evangelicals, expressing neutrality on the death penalty and acknowledging its flaws. Recent national polls confirm the report's observations. The October 2017 Gallup poll on the death penalty indicated that death-penalty support among Republicans fell by ten percentage points, from 82% to 72%, in the last year, and the Pew Research Center reported a seven percentage-point decline in support for capital punishment between 2011 and 2015 among respondents who described themselves as conservative Republicans. The Right Way highlights the actions of five Republican state legislators' efforts to repeal capital punishment in predominantly Republican states, and addresses the substantive concerns that have given rise to Republican death-penalty opposition. "Plagued by wrongful convictions, high costs, and delays," the report says, "the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life." As renewed pushes to abolish the death penalty move forward in states like Utah and New Hampshire, the Gallup organization suggests that the actions of Republicans may be critical in determining the death penalty's future. It's analysis of this year's poll states: "Thirty-one states, primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future."

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