Arbitrariness

Virginia Governor Commutes Death Sentence of Ivan Teleguz

On April 20, Virginia Governor Terry McAuliffe commuted the death sentence of Ivan Teleguz (pictured), whom the Commonwealth had scheduled to be executed on April 25. Teleguz will now serve a sentence of life without parole. It was the first  death-penalty clemency ever issued by Gov. McAuliffe. The official statement released to the media in conjunction with the commutation outlined several of the factors that influenced the Governor's decision, including the prosecution's use of false evidence that tainted the jury's choice to sentence Teleguz to death. "[D]uring the trial, evidence was admitted implicating Mr. Teleguz in another murder in a small Pennsylvania town," McAuliffe said. "In arguing for the death penalty, the prosecutor made explicit reference to this evidence in arguing that Mr. Teleguz was so dangerous that he needed to be put to death. We now know that no such murder occurred, much less with any involvement by Mr. Teleguz. It was false information, plain and simple, and while I am sure that the evidence was admitted in a good-faith belief in its truthfulness at the time, we now know that to be incorrect." McAuliffe also cited the disproportionality of sentencing Teleguz to death when Michael Hetrick, the admitted killer, received a sentence of life without parole in exchange for his testimony against Teleguz. "To allow a sentence to stand based on false information and speculation is a violation of the very principles of justice our system holds dear," McAuliffe said. Teleguz maintains that he is innocent of the crime, and his clemency petition received support from numerous political, religious, and business leaders.

State and Federal Courts Grant Stays, Preliminary Injunctions Blocking 8 Arkansas Executions

In legal challenges filed separately by Arkansas death-row prisoners and a company involved in the distribution of pharmaceuticals, the Arkansas state and federal courts issued preliminary injunctions putting on hold the state's plan to carry out an unprecedented eight executions in the span of eleven days. After a four-day evidentiary hearing that ended late in the evening on Thursday, April 13, the United States District Court for the Eastern District of Arkansas issued a preliminary injunction barring Arkansas from carrying out the eight scheduled executions with a three-drug cocktail of midazolam, vecuronium bromide, and potassium chloride. The District Court issued its opinion and order early Saturday, April 15, finding "a significant possibility” that the prisoners' challenge to the lethal injection protocol will succeed and that Arkansas' execution plan denies the prisoners meaningful access to counsel and to the courts during the course of the executions themselves. In granting the preliminary injunction, Judge Kristine G. Baker wrote, "The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die." The ruling came a week after the U.S. Court of Appeals for the Sixth Circuit upheld a preliminary injunction granted by an Ohio federal district court barring that state from using midazolam in a three-drug execution process. Arkansas has appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.

In another lawsuit filed in state court by McKesson, the company that distributed vecuronium bromide to the Arkansas Department of Corrections, an Arkansas circuit judge issued an order in the late afternoon on Friday, April 14, temporarily blocking the state from using the drug. McKesson had filed a complaint alleging that Arkansas misled them about the intended use of the drug and refused to return it even after being issued a refund. Arkansas appealed the court's order, but after the federal injunction was issued, McKesson asked the Arkansas Supreme Court to vacate the state-court order because it would not be necessary as long as the federal injunction is in place.

Two prisoners separately received individual stays of execution. The Arkansas Supreme Court stayed the execution of Bruce Ward, scheduled for April 17, to allow consideration of his claim that he is incompetent to be executed. A federal district court stayed the execution of Jason McGehee, scheduled for April 27, to comply with the required 30-day public comment period after the Arkansas Parole Board's 6-1 recommendation for clemency.  

In Expanding Dispute Over Death Penalty, Florida Governor Orders Replacement of Local Prosecutor in 21 Murder Cases

Florida Governor Rick Scott issued a series of executive orders on April 3 removing locally elected 9th Judicial Circuit State Attorney Aramis Ayala (pictured) from 21 first-degree murder cases and replacing her with 5th Judicial Circuit State Attorney Brad King. The removal comes two weeks after Ayala announced a policy that her office would not pursue the death penalty in murder prosecutions. The cases include a number of potential capital resentencings resulting from the Florida Supreme Court's 2016 decision declaring non-unanimous death sentences to be unconstitutional. Ayala, a Democrat whose district encompasses Orange and Osceola Counties in and around Orlando, said on March 16 that, after conducting "an evidence-based review" of the issue, she had concluded that seeking the death penalty was not cost-effective and "is not in the best interests of this community or in the best interests of justice." Ayala is the only African-American elected prosecutor in Florida. Gov. Scott previously removed her from the high-profile trial of Markeith Loyd, a defendant accused of killing his pregnant ex-girlfriend and an Orlando police officer, also appointing King to handle that case. That decision prompted opposition from the Florida Legislative Black Caucus and the victim's parents. Democratic state Rep. Sean Shaw of Tampa called Scott's action in the 21 cases a "gross abuse of his power." Louis Virelli, a law professor at Stetson University, warned that Gov. Scott's actions set a dangerous precedent, saying, "this opens the door for governors of all political parties to cherry-pick cases away from prosecutors." Ayala has hired Roy L. Austin, Jr., a former civil rights attorney at the U.S. Department of Justice, to challenge Scott's authority to issue the executive orders. Ayala's spokesperson, Eryka Washington, said Scott had not notified the State Attorney that he was issuing the executive orders and that Ayala first learned of the orders from the media. “Ms. Ayala remains steadfast in her position that the Governor is abusing his authority and has compromised the independence and integrity of the criminal justice system,” Washington said. Orange and Osceola Counties imposed a total of one death sentence from 2012-2016. Citrus, Hernando, Lake, Marion, and Sumpter Counties—the predominantly Republican counties that make up the judicial circuit in which State Attorney King was elected—imposed six death sentences during that period.

LAW REVIEWS: Predictions of Future Dangerousness Contribute to Arbitrary Sentencing Decisions

In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."

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

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

American Bar Association Human Rights Magazine on Capital Punishment

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

Missouri Set to Execute Death Row Prisoner Who Was Denied Federal Review

Missouri plans to execute Mark Christeson (pictured) on January 31, without his case ever receiving substantive review in a federal court. Christeson's appellate attorneys effectively abandoned him, failing to meet with him until a month after the filing deadline in his case had already passed. They filed his federal appeal four months late. As a result, the federal court rejected it as untimely. New attorneys offered to represent him, since the attorneys who missed the filing deadline could not effectively argue his case without admitting their own error. Two federal courts rejected the substitution before the U.S. Supreme Court granted it. A federal district court then, without explanation, denied nearly all the funding requested by his new attorneys to reinvestigate the case. In 2016, a group of former judges and three of the nation's leading criminal defense organizations filed amicus briefs with the U.S. Court of Appeals for the Eighth Circuit, urging the court to grant Christeson the funding necessary to prepare his case. His attorneys say that evidence of Christeson's intellectual impairments and abusive upbringing were never presented to a jury. On January 18, 2017, the Eighth Circuit ordered the federal district court to “convene promptly a limited evidentiary hearing on the question of abandonment.” U.S. District Judge Dean Whipple found that the missed filing deadline did not constitute abandonment and denied Christeson a stay of execution. The Missouri federal district courts have been notable for their failure to intervene in a string of controversial executions, including the cases of Cecil Clayton, Andre Cole, and Richard Strong, but according to the Columbia Daily Tribune, Christeson would be the first person executed in Missouri in the modern era of the death penalty to have had no federal appeals. [UPDATE: The U.S. Supreme Court denied Christeson's petition for certiorari and motion for stay of execution and he was executed on January 31.]

STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous Juries

A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."

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