Arbitrariness

Friend-of-the-Court Briefs Challenge Systemic Injustices in North Carolina Death Penalty 

Two amicus curiae briefs filed in the Racial Justice Act appeal of North Carolina death-row prisoner Rayford Burke (pictured) are asking the North Carolina Supreme Court to redress systemic problems in North Carolina’s administration of its death penalty. One brief, filed by the New York-based NAACP Legal Defense and Educational Fund (LDF), urges the court to provide Burke “the opportunity to prove that racial bias impermissibly influenced jury selection and infected his death sentence.” A second brief, filed by the Promise of Justice Initiative and 12 former judges, prosecutors, and law enforcement officials from North Carolina, asks the court to declare the state’s death penalty unconstitutional.  

Burke was convicted and sentenced to death for the 1992 murder of a man who he said had testified falsely against him in a prior case. He had sought review of his death sentence under North Carolina’s Racial Justice Act (RJA), enacted in 2009, which permitted prisoners to challenge their death sentences based on statistical evidence of racial discrimination. However, before a hearing was held on Burke’s Racial Justice Act claim, Cumberland County Superior Court Judge Gregory Weeks conducted an extensive evidentiary hearing in the case of Marcus Robinson and granted Robinson relief. In a 167-page opinion, Judge Weeks reviewed an “exhaustive study” of North Carolina prosecutors’ strikes and acceptances of more than 7,400 jurors in 173 North Carolina capital murder trials between 1990 and 2010 and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” Weeks wrote that prosecutors struck black jurors at more than twice the rate of all other jurors, with “remarkable consistency” in strike rates in every county and across the entire period of time studied. Race, he said, “was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors when seeking to impose death sentences in capital cases” and he concluded that the strikes were intentionally undertaken on the basis of race. 

The legislature responded by repealing the RJA in 2013. Although four death-row prisoners had received sentence reductions prior to repeal, Burke’s claim had not yet been heard in court and his trial court ruled that the repeal had extinguished any right he had to a hearing. The state courts also overturned the grants of relief to the four prisoners. On March 2, 2018, the state supreme court announced that it would hear RJA appeals from three of those prisoners, as well as from Burke and another prisoner whose RJA claim had also been filed but not heard. 

The LDF brief sets forth evidence that prosecutors discriminated in Burke’s case, including that prosecutors struck all African-American prospective jurors, resulting in an all-white jury, and called Burke “a big black bull” during the trial. It also catalogues what it describes as “a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty.” In a statement accompanying the filing of the brief, LDF Senior Deputy Director of Litigation Jin Hee Lee said: “Allowing racial bias in Mr. Burke’s case to go unchallenged would be tantamount to condoning racial bias in the administration of justice. The Court must affirm its unwavering commitment to fundamental fairness and racial equality by affording Mr. Burke the opportunity to prove that discrimination tainted his death sentence,” said. 

The Promise of Justice Initiative brief, joined by the former judges, prosecutors, and law enforcement personnel, takes an even broader view, calling on the court to strike down North Carolina’s death penalty as unconstitutional. “The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency,” the brief states. Citing evidence that, in North Carolina, no one has been executed since 2006 and the state has averaged fewer than one new death sentence per year over the last seven years, the brief argues that “it is now beyond dispute that use of the death penalty is unusual.” It also points to recent court decisions striking down the death penalty in other states, including Delaware in 2016 and Washington in 2018. “Courts have recognized that the penalty is corrupted by arbitrariness, plagued by error and discrimination, and unsupported by evidence that it deters,” it says.  

He’s on California’s Death Row, But Demetrius Howard Never Killed Anyone

A February 4, 2019 article in the criminal justice newsletter, The Appeal, features the case of Demetrius Howard, a California prisoner sentenced to death for a crime in which he didn’t kill anyone. Howard was sentenced to death in 1995 for his participation in a robbery in which another man, Mitchell Funches, shot and killed Sherry Collins. Howard was never accused of firing a shot and he has consistently maintained that he neither expected nor intended that anyone would be killed. But under California’s felony murder law, he was eligible for the death penalty because he participated in the robbery. In a letter to The Appeal, Howard wrote, “I am no saint or some angel. I’ve made my share of wrongs, but I haven’t killed no one [or] told anyone to kill someone.”

California is one of twenty states that allow the execution of defendants who neither killed nor intended that a killing take place. The controversial practice has attracted the most attention in the state of Texas, where at least six prisoners have been executed despite undisputed evidence that they were not involved in the killing itself. In Howard’s case, the man who actually shot Collins, Mitchell Funches, received a sentence of life without parole when the jury in his trial could not reach a unanimous decision on whether to sentence him to life or death. In 2018, California passed a law that narrowed the scope of the felony murder law, making defendants liable for murder only if they were the killer, solicited the killer, or acted with reckless indifference to human life. The change is retroactive, but does not apply to Howard because the jury found that he had “acted with reckless indifference to human life” before it sentenced him to death.

Howard’s death sentence is also a by-product of outlier death-penalty practices in San Bernardino County. San Bernardino is one of five Southern California counties that imposed more death sentences between 2010 and 2015 than 99.5% of U.S. counties, earning the region the nickname “the new death belt.” In 1993, shortly before Howard was sentenced to death, there were 10 active capital trials in the county, and then-District Attorney Dennis Kottmeier said he was considering seeking it in two other cases. At the time, Kottmeier told the San Bernardino County Sun, “That’s higher than I’ve ever seen it. At any given time in the past the number pending seemed to be about six.” He attributed the high number of capital cases to a high rate of violent crime, as well as state laws passed in 1990 and 1993 that expanded the list of death-eligible crimes. The California Attorney General’s 2017 report, Homicide in California, shows that despite its disproportionate pursuit of capital punishment, San Bernardino’s higher-than-average murder rate has remained the same from 1997 to 2017, while murder rates have declined statewide and in many of California counties during that period.

Alabama Executes Muslim Prisoner Amidst Charges of Religious Discrimination

In a 5-4 decision that Justice Elena Kagan characterized as “profoundly wrong,” the U.S. Supreme Court on February 7, 2019 permitted Alabama to execute a Muslim death-row prisoner, Domineque Ray (pictured), who had claimed that the state’s execution process discriminated against him because of his religion. Without explanation, the Court asserted that Ray had waited too long to challenge a provision in Alabama’s execution protocol that made a Christian chaplain part of the state’s execution team and prohibited other religious advisors from being present in the execution chamber. Ray argued that Alabama’s practice constituted an establishment of religion that discriminated against non-Christians. During federal court hearings on the constitutionality of the policy, Alabama withdrew its requirement that the chaplain be present in the execution chamber. However, it continued to reject Ray’s request that his imam—a prison-approved spiritual advisor—be permitted in the execution chamber. The U.S. Court of Appeals for the Eleventh Circuit ruled that Ray was likely to succeed on his religious discrimination claim, scheduled briefing in his case, and stayed his execution. The Supreme Court reversed, without addressing the constitutional issue.

Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor dissented. Quoting prior Supreme Court decisions, Kagan wrote, “‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.” In asserting that its execution process complied with constitutional guarantees of religious freedom, the Alabama Attorney General’s office told the federal courts: “Like any other inmate, Ray has been and will be given opportunities to speak with his spiritual adviser, including up to the moment that he is taken into the chamber.” However, Spencer Hahn, one of Ray’s lawyers, said the prison had failed to honor that promise and that Ray lost access to his imam three hours before the execution.

Ray was convicted and sentenced to death for the rape and murder of a 15-year-old girl. No physical evidence linked him to the crimes and a sole prosecution witness, Marcus Owden, implicated Ray. In 2017, Ray’s appeal lawyers discovered for the first time that Owden—who avoided the death penalty by testifying against Ray—had schizophrenia and was suffering from delusions and auditory hallucinations when he accused Ray of the rape and murder and testified against him. Ray’s lawyers argued that the prosecution’s deliberate suppression of this evidence, despite being aware of Owden’s mental illness, violated Ray’s due process rights and entitled him to a new trial. Without comment, the Supreme Court declined to review the claim and denied a stay. Ray was the second person executed in the U.S. in 2019 and the first in Alabama.

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."

Missouri Supreme Court Hears Case on ‘Hung Jury’ Death Sentences

The Missouri Supreme Court may soon rule on the constitutionality of the state’s practice of having the trial judge determine whether a capital defendant should live or die if the sentencing jury is unable to reach a unanimous verdict. Death-row prisoner Marvin Rice (pictured) was sentenced to death by the trial judge in August 2017, even though 11 of the 12 jurors in his case voted for a life sentence. His appeal, which the state court heard on January 23, 2019, argues that the portion of Missouri’s death-penalty statute that gives the trial judge exclusive sentencing authority in the event of a hung sentencing jury violates his “constitutionally protected rights to due process, a trial by jury, and to a unanimous jury verdict.”

At the time of the offense, Rice – a former deputy sheriff and disabled Army veteran – was suffering from a major depressive disorder that had been worsened by the effects of a pituitary gland tumor. Court documents indicated that he had been diagnosed with 12 various medical and psychiatric conditions for which he had been taking 17 different medications. Eleven jurors were persuaded by this and other mitigating evidence that Rice’s life should be spared, but a single hold-out juror for death hung the jury. Trial judge Kelly Wayne Parker then disregarded the jury’s vote and sentenced Rice to death.

Rice’s appeal also challenges the constitutionality of Missouri’s capital punishment statute on the grounds that virtually any homicide now qualifies as a capital offense. This, he argues, violates the constitutional requirement that the death penalty be limited to a narrow class of the worst-of-the-worst killings. He also seeks a new trial based upon police and prosecutorial misconduct in his case. Police, he says, unconstitutionally continued to interrogate him while he was hospitalized for gunshot wounds sustained during his arrest, even after he had said he did not want to answer their questions. He also argues that the prosecutor repeatedly violated his constitutional right to remain silent, improperly commenting on both his decision not to testify at trial and his refusal to answer police questions after having been given his Miranda warnings. Rice’s lawyer, Craig Johnston told the state justices: “This court has repeatedly held that where an objection is made and overruled as happened here, a direct reference to the defendant’s failure to testify will invariably result in a new trial.”

Only Missouri and Indiana allow a judge to impose a death sentence following a jury deadlock in the sentencing phase of a capital trial. Alabama also allows a judge to impose a death sentence following a non-unanimous jury sentencing vote, but only if at least ten jurors vote for death. No jury in Missouri has imposed a death sentence since 2013, but judges sentenced Rice and Craig Wood to death after juries could not reach a unanimous sentencing decision. Wood was sentenced to death in 2018 after his jury voted 10-2 for a death sentence. The U.S. Supreme Court has not addressed the constitutionality of Missouri’s hung jury sentencing practice. However, in 2016, the Court struck down Florida’s death sentencing statute saying its provision requiring the judge, rather than a jury, to find facts necessary to impose a death sentence violated the Sixth Amendment right to a jury trial.

Lawyers Seek Clemency for Tennessee Death-Row Prisoner Dying of End-Stage Cancer

Charles Wright (pictured), a prisoner on Tennessee’s death row, may die of cancer before the October 10, 2019 execution date that the state has set for him. His attorneys and supporters, including a former U.S. Congressman, are seeking clemency so Wright can spend his final days with his family. Wright has prostate cancer that has spread to his bones, and was recently moved from Tennessee’s death-row facility to a prison infirmary. He is asking the governor to either reduce his sentence to time served or to life without parole, allowing him to apply for a medical furlough, a special release that can be granted to terminally ill prisoners, but not to those on death row.

In September 2018, former Congressman Bob Clement wrote to then-Governor Bill Haslam, asking Haslam to grant clemency to Wright. “It is clear to me that Charles is not among the ‘worst of the worst’ for whom the ultimate punishment is to be reserved,” Clement wrote. “He was a product of his environment and the deprivation in which he — I will not say ‘was raised’ as the fact is, Charles and his siblings basically raised themselves. He turned to drugs early in his teenage years — he was fourteen or fifteen when an older drug dealer put a heroin needle in Charles’ arm. Charles does not absolve himself of his responsibility for making wrong choices.” Clement’s father, Frank Clement, served as governor of Tennessee in the 1960s, and commuted all the state’s death sentences in 1965, after the legislature defeated an abolition bill by one vote.

In court filings, Wright’s attorneys also raised issues of arbitrariness and racial bias. Wright, who is Black, was convicted and sentenced to death for a drug-related double-homicide in 1985. According to his attorneys, capital cases in the 1980s were infected with racial bias, and Wright’s case exemplifies the arbitrariness of Tennessee’s death penalty. While Wright was sentenced to death, many other drug-related murders have resulted in life sentences, even when there were more than two victims. A 2018 study of Tennessee's death-penalty system called it “a cruel lottery” and found that the best indicators of whether a case would result in a death sentence were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case.

U.S. Supreme Court Declines to Review Cases Alleging Racial Bias in Oklahoma Death Penalty

The United States Supreme Court has declined to review challenges brought by two Oklahoma death-row prisoners who alleged that their death sentences were the unconstitutional product of racial bias. Julius Jones and Tremane Wood had sought to overturn their death sentences based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, the Court denied the petitions for writ of certiorari after having rescheduled consideration of Jones’s (pictured, left) and Wood’s (pictured, right) cases 25 times each.

In their petitions for certiorari, Jones and Wood relied upon a statistical study of Oklahoma death sentences imposed between 1990 and 2012 to argue that racial bias unconstitutionally infected their death sentences. In 2017, the Oklahoma Death Penalty Review Commission released a report on the state’s administration of the death penalty that included the findings of Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp about the impact of race on death sentences. The study found that a murder defendant in Oklahoma accused of killing a white victim was more than twice as likely to be sentenced to death than a defendant accused of murdering a nonwhite victim. In cases like Jones’s and Wood’s, which involved only male victims, the study found that death sentences were nearly three times more likely to be imposed if the victim was white than if the victim was a person of color. It also found that when the victim was a white male, defendants of color, like Jones and Wood, were twice as likely as a white defendant to be sentenced to death.

Jones and Wood described other evidence that racial bias affected decisionmakers in their cases. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.” Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Dale Baich, one of Jones’s appellate lawyers, told The Oklahoman, that the facts of the case “vividly show how racial bias can lead to a wrongful conviction.” Jones is scheduled to file a separate petition for certiorari on January 28 raising the issue that one of the jurors in the case said “they should just take the n****r out and shoot him behind the jail.”

New Voices: Former Texas Criminal Appeals Judge Suggests “Pause” on Texas Death Penalty

Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”

Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”

In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”

When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so.  So somehow we are out of line.”

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