Arbitrariness

73% of North Carolina's Death Row Sentenced Under Obsolete Laws, New Report Says

Most of the 142 prisoners on North Carolina’s death row were convicted under obsolete and outdated death-penalty laws and would not have been sentenced to death if tried today, according to a new report by the Center for Death Penalty Litigation. The report by the Durham-based defense organization, titled Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, says that nearly three-quarters of the prisoners on the nation’s sixth-largest death row were tried and sentenced before the state enacted significant reforms in prosecution, defense, and trial practices. “[I]f these people on death row had been tried under modern laws, most of them would be serving life without parole sentences instead of facing execution,” said Gretchen Engel, the Center’s executive director.

Seventy-three percent of the men and women on North Carolina’s death row (103 prisoners) were tried and sentenced to death before July 2001, when North Carolina repealed a 1990s-era law that had required prosecutors to pursue the death penalty in every aggravated murder case, irrespective of reasons that might call for mercy, and created a statewide office to represent indigent defendants in capital trials and appeals. North Carolina was the only state in the country that denied prosecutors the discretion to decide when to seek the death penalty, and as a result, there were more than fifty capital trials in the state each year, including cases involving defendants who were seriously mentally ill or intellectually disabled or were comparatively minor participants in a murder. Capital trials fell to an average of sixteen per year in the decade following the change. The creation of the capital defender office that same year dramatically improved the quality of representation, and further reduced the number of cases in which death verdicts were returned. Since then, North Carolina has enacted additional reforms aimed at ensuring fairer trials in capital cases. In October 2004, the state became the first in the country to require prosecutors to make all witness files, police reports, other investigative records, and physical evidence available to capital defendants prior to trial. In 2008, it adopted a series of eyewitness identification and interrogation protocols designed to prevent mistaken identifications and false or coerced confessions.

The report states that during the 1990s, before the reforms were enacted, “courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.” “Today,” Engel said, “we are living in a different world .... Public support for the death penalty is at a 50-year low, and North Carolina has stopped executing people. Juries now see life without parole as a harsh and adequate punishment for the worst crimes.” That, however, has produced its own historical inequities. In terms of moral culpability, Engel said, the defendants facing trial in 1995 and 2015 “are equal. And yet, one of them is being subjected to execution and other is not and that is an unfairness that as a fair society, we can not tolerate.”

Washington Supreme Court Declares State's Death Penalty Unconstitutional

Finding that the death penalty "is imposed in an arbitrary and racially biased manner," a unanimous Washington Supreme Court has struck down the state's capital-punishment statute as violating Washington's state constitutional prohibition against "cruel punishment." The court's ruling, authored by Chief Justice Mary E. Fairhurst and issued on October 11, 2018, declared: "The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution." The decision also converted the sentences of all eight people on the state's death row (pictured) to life imprisonment without possibility of release. The court's action makes Washington the twentieth U.S. state to have judicially or legislatively abolished the death penalty, and the eighth to have done so this century. Governor Jay Inslee, who imposed a moratorium on all executions in 2014, hailed the ruling, saying, "Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington. ... This is a hugely important moment in our pursuit for equal and fair application of justice.” 

The court issued the ruling in the case of Allen Gregory (pictured, bottom row, second from the right), an African-American man sentenced to death for the rape and murder of a white woman. In declaring the death penalty unconstitutional, the court cited recent research that found Washington juries were more than three times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. "Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance," the opinion stated. The opinion also cited "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as systemic constitutional flaws supporting the court's decision.

Washington has not carried out an execution since 2010. King County Prosecutor Dan Satterberg said that the court's ruling had finally brought to an end "Washington's four-decade experiment with the death penalty." Satterberg, a Republican, who with Democratic Attorney General Bob Ferguson supported bipartisan legislation to abolish Washington's death penalty, said "I think the criminal justice system will be stronger without capital punishment." The abolition bill, which was the subject of legislative hearings during the 2018 state legislative session, passed the Washington Senate and the House judiciary committee, but did not receive a vote in the full House.

Federal Judge Expresses Frustration at Procedural Constraints in Possible Innocence Case

In a case highlighting congressional limitations on the federal judiciary's ability to redress miscarriages of justice, a Texas federal judge has denied relief to a death-row prisoner who the court believes was denied a fair trial and may well be innocent. U.S. District Judge Keith P. Ellison (pictured) wrote on September 26, 2018, that he “would almost certainly have granted” a new trial to Robert Will, but the “constraints” imposed by 1990’s-era amendments to federal habeas corpus law left the court “powerless to address” what he called “the troubling possibility of [Will’s] actual innocence.” Ellison’s ruling urged the U.S. Court of Appeals for the Fifth Circuit to address Will’s claims, saying that his decision was a “technical ruling” that should not “obscure the extraordinarily significant issues that the Court of Appeals – unlike this Court – can properly consider.” In a trial in a Houston courtroom packed with uniformed police officers, Will was convicted and sentenced to death for the December 1999 murder of Harris County Sheriff's Deputy Barrett Hill. Investigators found no gunshot residue on Will and a footprint at the crime scene didn’t match his; Will claims that he was handcuffed when Deputy Hill was shot. Five witnesses later came forward with information that Will’s co-defendant had confessed to the crime, and additional evidence came to light during the habeas corpus proceedings that raised questions about a prosecution witness. However, Will’s state post-conviction lawyer, whose conduct Ellison said “appears to have been severely compromised by serious health conditions,” failed to investigate and raise those issues. Will’s case is also one of numerous Harris County death-penalty cases in which state judges adopted word for word the fact-findings proposed by the prosecution. Ellison said that, but for the limits on habeas review, he “would almost certainly have granted relief” on Will’s claim that “the presence of numerous uniformed law enforcement officers at his trial created an unconstitutionally coercive environment for the jury.” Ellison added: “The Court is particularly sensitive to the absence of any direct evidence of Will’s guilt, and the number of witnesses who aver that another man confessed to the underlying murder. ... The Court very much wishes it could take up all of these issues without the constraints of habeas review. With fewer constraints, the Court of Appeals can perhaps give these issues the time and attention that they merit. Nevertheless, this Court lacks jurisdiction to explore the troubling concerns that plague Will’s capital conviction.” Patrick McCann, former president of the Harris County Criminal Lawyers Association, said that Will’s case demonstrates that “[e]verything in the state procedure is inadequate and has been inadequate for the last three decades.” He called the requirement that federal judges defer to state court decisions “an absolute joke.” Ellison’s comments echo those of retired Ninth Circuit Judge Alex Kozinski who wrote in 2015 that Congress’s amendments to the habeas corpus law “abruptly dismantled” federal judicial review as a “safety-valve” against injustice and “pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred.” Instead, he wrote, federal courts “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

Justices Appear to Favor Prisoner with Dementia in Case Seeking to Block Alabama Execution

The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."

Judge Approves Plea Deal in Case That Challenged the Constitutionality of the Federal Death Penalty

A federal judge in Vermont has accepted a plea deal between Donald Fell and federal prosecutors, permanently removing Fell from death row and ending a case that had raised serious questions about the constitutionality of the federal death penalty. Under the terms of the deal, approved by U.S. District Court Judge Geoffrey Crawford on September 28, 2018, Fell will serve a sentence of life without parole for the interstate kidnapping and murder of Teresca King in 2000. Fell and his co-defendant, Robert Lee, abducted King in Rutland, Vermont, and drove her to New York state, where she was killed. Fell was convicted and sentenced to death in federal court in 2005, a sentence he could not have received if he had been tried in state court because Vermont does not have the death penalty. Fell's conviction was overturned and he was granted a new trial in July 2014 as a result of juror misconduct. Federal prosecutors also charged Lee with capital murder, but Lee committed suicide in prison in 2001 before either defendant's case went to trial. In November 2015, Fell's lawyers filed a comprehensive constitutional challenge to the federal death penalty, arguing based on significant racial and geographic inequities in its administration that it was unreliable, arbitrary, and discriminatorily applied. After a two-week-long evidentiary hearing, Judge Crawford found that the federal death penalty "operates in an arbitrary manner in which chance and bias play leading roles" and "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty." He nonetheless allowed the death penalty to remain in the case, writing that as a federal trial judge, he lacked "authority to rewrite the law so as to overrule the majority position at the Supreme Court." Fell's lawyers later unsuccessfully argued based on a March 2018 U.S. Supreme Court decision striking down a federal sports betting law that the federal death penalty violated the 10th Amendment by conscripting state officials to carry out executions. However, Judge Crawford did grant a defense motion to bar prosecutors from presenting various statements made by Lee by prior to his death attempting to shift blame to Fell for King's murder. In July 2018, the U.S. Court of Appeals for the Second Circuit agreed with Crawford, calling Lee's statements "unreliable." The ruling left prosecutors without key evidence to prove the extent of Fell's alleged involvement in the killing, reducing the chances that a jury would return a death sentence in the case. Fell is the 10th prisoner to be permanently removed from the federal death row after having overturned an unconstitutional conviction or death sentence. Sixty-two prisoners are currently on federal death row.

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

New DPIC Podcast: Researcher Discusses Implications of Link Between Economic Threats and Support for Death Penalty

In the latest episode of our Discussions with DPIC  podcast, Keelah Williams (pictured), assistant professor of psychology at Hamilton College in New York, joins DPIC executive director Robert Dunham to discuss the implications of new research on the death penalty and resource scarcity. “Resource scarcity” is a concept from evolutionary psychology that examines individual and social responses to environmental conditions in which resources are limited. “[E]cological variables can affect our behavior in really striking ways, and this often is happening at an unconscious level," Williams said. She and an interdisciplinary team of researchers from Arizona State University (where Williams earned her Ph.D. and J.D.) thought the concept provided “an exciting opportunity to see whether environmental factors might also play a role in how people think and feel about the death penalty.” Williams describes the team’s findings that countries with greater resource scarcity and income inequality are more likely to have a death penalty. The team discovered a similar phenomenon in the U.S., finding that “states with lower life expectancy and lower per capita income were more likely to have the death penalty, and ... this relationship wasn’t explained by other variables like how politically conservative the states were or state murder rates.” Williams also discusses two experimental studies the team conducted to assess the extent to which perceptions of economic scarcity or abundance affect individuals’ views of capital punishment. That research found that study participants who had been shown information and images of economic hardship tended to be more supportive of the death penalty than those of the same political ideology and socioeconomic status who had been given information and images about economic prosperity. She explains the results, saying, “If your resources are limited, then you have to be more choosy in how you invest them. So, in the context of punishment decisions, we think this means you become less willing to risk repeated offending, and more favorable towards punishments that eliminate the threat.” Although the team‘s research focused on resource scarcity, Williams says it also has relevance in explaining how race may affect views of capital punishment. “We think that people are trying to figure out what the potential future value is of the offender because that’s the information that helps them to evaluate the costs and benefits of getting rid of someone versus keeping them around.” Race, and “whether someone is in your ‘in-group’ or your ‘out-group,’” she says, “can play a role in these kinds of calculations.” This, she believes, may lead to harsher punishment of individuals perceived as belonging to the out-group and discretionary acts of leniency that favor individuals who are members of the in-group, and may cause individuals to feel more threatened when a member of their favored group is killed. Williams says that perhaps “the most interesting take-away from our study is that these features of our environment really can influence the way that we feel and the way that we behave, and can do so in ways we are not necessarily consciously aware are happening.” This raises problematic constitutional and policy questions about the arbitrariness of the death penalty’s application across the United States. “If these extraneous factors, like the state of the economy, are influencing people’s attitudes about something as important as how they feel about the death penalty and their willingness to impose death over life,” Williams says, “[t]hat’s something we, as a society, need to consider if we’re comfortable with.”

Defense Moves to Bar Death Penalty in New York Bike-Path Killings, Citing “Nakedly Political” Tweets

Defense attorneys for Sayfullo Saipov (pictured), the man accused of killing eight people by driving a truck onto a Manhattan bike path on October 31, 2017, have asked a New York federal district court to bar the U.S. government from seeking the death penalty against Saipov. Arguing that President Donald Trump has unconstitutionally injected “nakedly political considerations” into the Department of Justice's charging decision, Saipov’s lawyers on September 6, 2018, filed a motion before Judge Vincent Broderick to preclude federal prosecutors from pursuing the death penalty or, alternatively, “to appoint an independent prosecutor to decide whether the death penalty should be pursued” in the case. The defense filing cites several tweets in which the President directly called for Saipov’s execution and another in which Mr. Trump ridiculed Attorney General Jeff Sessions, who is ultimately responsible for deciding whether to seek any federal death sentence, for moving forward with two prosecutions that could cost Republicans seats in the U.S. Congress. In separate tweets shortly after the truck attack, Trump used all capital letters to demand the death penalty for Saipov, exclaiming “SHOULD GET DEATH PENALTY!” and “Should move fast. DEATH PENALTY!” In a later tweet, he referred to Saipov as a “degenerate animal.” The motion further alleges that President Trump “has recently tweeted that he expects non-case related political considerations to govern Attorney General Sessions’ charging decisions,” pointing to a tweet that “excoriated” Sessions for the indictments of “two very popular Republican Congressmen ... just ahead of the Mid-Terms.” Trump derisively tweeted: “Two easy wins now in doubt because there is not enough time. Good job, Jeff.” Saipov’s lawyers note that this tweet attack on Attorney General Sessions comes at the same time that the President’s personal attorney, Rudolph Giuliani, ‘confirmed that he and Trump have discussed Sessions’ possible removal.’” The motion argues that “[t]he pressure from Mr. Trump’s intemperate demands are simply too great for Attorney General Sessions or anyone else who works for President Trump to appropriately exercise the fact-based, independent decision-making process required” in capital cases. This, they argue, creates an unconstitutional risk that any decision to seek death will be—or appear to be—the product of “President Trump’s arbitrary, uninformed and emotional impulses ... and/or his insistence that the Justice Department’s charging decisions should be controlled by political calculations.” There is no death penalty in New York state. Federal prosecutors have not yet announced whether they intend to seek a death sentence in the case.

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