New Voices

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.”

NEW VOICES: Retiring Georgia Bureau of Investigation Director Predicts End of Death Penalty

As he prepared for retirement, the long-time director of the Georgia Bureau of Investigation (GBI) said he does not support the death penalty and believes the punishment is on its way out in Georgia and across the country. In a television interview on his final day of work as GBI director, Vernon Keenan (pictured) told WXIA-TV, Atlanta’s NBC television affiliate, that he has “never believed in the death penalty” and “[t]he day will come when we won’t have the death penalty in Georgia and in the United States.”

Keenan, a 45-year veteran of law enforcement who has run the state criminal justice agency for the past sixteen years, called the death penalty outdated and ineffective in advancing public safety. Keenan said, “I don’t believe the death penalty deters anyone. The people that commit crime, they don’t believe they’re going to get caught. The death penalty is just a way society gets retribution from the criminal.” He told WXIA that he believes declining public support for capital punishment will ultimately lead elected officials to reconsider whether the death penalty should remain part of the state’s criminal code.

Keenan’s belief that the death penalty is not a deterrent reflects the widely held beliefs of many senior criminal justice personnel. A 2008 study found that 88% of the nation’s leading criminologists believe the death penalty is not an effective deterrent to crime and that three-quarters of them believed that debates over the death penalty “distract legislatures from real crime solutions.” A 2008 poll of 500 police chiefs in the United States, commissioned by DPIC, found that police chiefs rank the death penalty lowest among crime fighting options as “most important for reducing violent crime.” The chiefs believed that increasing the number of police officers, reducing drug abuse, and creating a better economy were all more important in reducing crime. More than two-thirds (69%) said that “[p]oliticians support the death penalty as a symbolic way to show they are tough on crime.” “I believe life in prison without parole is punishment enough,” Keenan said. “Probably worse than death.”

Georgia was one of only eight states to carry out executions in 2018. No Georgia jury has recommended a new death sentence since 2014.

National Think Tank Calls on Conservatives to Reject Death Penalty

The R Street Institute, a Washington-based policy think tank, has joined the growing number of conservative voices advocating for death-penalty abolition. In a commentary in the November/December 2018 issue of The American Conservative, the institute’s criminal justice and civil liberties policy director Arthur Rizer (pictured, left) and its Southeast region director Marc Hyden (pictured, right) argue that “the closer conservatism remains to its core values, the more credibility it brings to the table,” and that the core values of conservatism—promoting “government restraint, fiscal responsibility, morality, and public safety”—ideally situate conservatives to “champion capital punishment’s demise.” “If conservatives want to convince others that a smaller, more nimble government is best,” Rizer and Hyden write, “then those values should be reflected in all policy areas, including the death penalty.”

Rizer’s and Hyden’s argument against capital punishment starts from the premise that “skepticism of state power is at the heart of the American identity and conservative philosophy.” This, they write, is “for good reason. The United States government has a history of incompetence and malfeasance.” Criminal justice policies, they say, should not be immune from the traditional conservative “suspicion of government”—particularly policies such as capital punishment, in which “the United States has a track record of acting in an arbitrary and biased fashion.” Addressing issues ranging from racial bias, the possibility of executing an innocent person, the costs of capital punishment, its failure to make society safer, and the mistrust of big government, the article catalogues why the authors believe conservatives should oppose the death penalty.

On race, Rizer and Hyden write: “The simple matter is that the death penalty has an extensive history of overt bias.” Despite the advances of the civil rights movement, they say, “we still have not been able to banish the bias that permeates the justice system. … Justice must not only be blind, but also color blind.” In the U.S., however, “a murder victim’s race also seems to influence whether or not the accused will be put to death,” the authors write, leaving the implication “that, at least through the criminal justice lens, some lives are more valuable than others.” The death penalty, they write, falls short on another core conservative belief, “that the government is too often inefficient and prone to mistakes." They ask: “Why should the death penalty’s administration by government bureaucrats be any different?” Recognizing the certainty that there will be some wrongful convictions, they say the death penalty carries with it inevitably “irreversible consequences.” “Conservatives take great pride in championing the sanctity of life and respecting its intrinsic value," but—citing historical evidence of wrongful executions and data showing that there is one exoneration for every nine executions in the U.S.—the authors say, “a death penalty system that repeatedly and unnecessarily risks innocent lives does neither.” Likewise, they say, “numerous cost studies have examined the death penalty’s expense and found that it far outweighs the price of life without parole (LWOP).… Given the death penalty’s high costs compared to LWOP, it’s clear that capital punishment is antithetical to fiscal conservatism.”

The article concludes by urging conservatives to adhere to their core values in judging the death penalty: “Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life…. Perhaps more than anything else, opposition to the death penalty should boil down to a lack of faith in a woefully error-prone government. After all, how willing are you to trust your life to this system?”

Report on “Principles for the 21st Century Prosecutor” Calls for Prosecutors to Work to End Death Penalty

A group of justice-reform organizations has issued a new report, 21 Principles for the 21st Century Prosecutor, that calls on prosecutors to “work to end the death penalty” as part of its recommended reforms in prosecutorial practices. The report, prepared jointly by the organizations Fair and Just Prosecutionthe Brennan Center for Justice, and the Justice Collaborative, sets forth a series of principles that the groups say are designed “to improve the overall fairness and efficacy of the criminal justice system.”  The report sets forth 21 principles of prosecution for a “21st Century vision for meting out mercy and justice.” Ten of the principles address ways to reduce incarceration. Eleven are proposals to increase fairness in the criminal justice system. Because prosecutors “wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed,” the report says, they are “well positioned to make changes that can roll back over-incarceration.”

The groups’ proposals on the death penalty fall within their recommendations on increasing fairness. “Countless studies have shown that the death penalty is fraught with error, provides no more public safety benefit than other sentences, and is routinely imposed on people with diminished culpability,” the report says. “Studies also show that the death penalty is applied in a racially discriminatory manner[,] … is expensive and puts victims through decades of litigation and uncertainty.” The report recommends that prosecutors “[o]ppose legislation to expand or expedite the death penalty”; establish a review committee to determine whether to prosecute a case capitally; consider alternative punishments in cases in which the death penalty has already been imposed, “particularly when there is substantial evidence of reduced culpability”; and “[d]on’t threaten to seek the death penalty to coerce a plea.” It quotes two big-city prosecutors, Denver’s Democratic District Attorney Beth McCann and Kings County (Seattle) Republican Prosecuting Attorney Dan Satterberg, in support of the principle that prosecutors should work to end the death penalty. Shortly after her election, McCann said, “I don’t think the state should be in the business of killing people.” Satterberg spoke out in favor of abolishing Washington’s death penalty, saying that the death penalty “no longer serves the interests of public safety, criminal justice, or the needs of victims.”

Election results in 2018 continued a trend away from prosecutors known for their aggressive pursuit of capital punishment. Since 2015, voters have removed prosecutors in 11 of the 30 most prolific death-sentencing counties in the country, replacing most of them with reform candidates. This year, prosecutorial candidates who ran on reform platforms won election in St. Louis County, Missouri; Jefferson County (Birmingham), Alabama; Bexar (San Antonio) and Dallas, Texas. Two of the nation’s most aggressive pro-death-penalty prosecutors also were ousted in Orange and San Bernardino counties in California.

DPIC PODCAST: The New Catholic Teaching on the Death Penalty and Human Dignity

In August 2018, Pope Francis promulgated a new Catholic Catechism that deemed the death penalty “inadmissible” in all cases and committed the Church to working to abolish capital punishment worldwide. Cardinal Blase Cupich, the ninth Bishop of the Archdiocese of Chicago, joined DPIC Executive Director Robert Dunham on the latest episode of the podcast Discussions with DPIC, to explore the implications of the new teachings and how they fit into the Church’s broader message on social justice and the sanctity of life. Saying “human dignity is at center of all we say and do,” Cardinal Cupich stressed that church leaders working to end capital punishment “have to make the case for human dignity just as forcefully as we do in other areas,” for the poor, for refugees, for the marginalized, and for the unborn. “All of the advocacy that we do for all of these people has to have a social or civic or political dimension to it,” the Cardinal explained. The continued use of the death penalty is “a stain on our country,” he said. “Let’s be honest. No life that was taken away can ever be replaced by taking away another life. We cannot teach that killing is wrong by killing.”

Following Washington Death Penalty Abolition, Op-eds Encourage Other States to Follow Suit

Following the Washington Supreme Court's October 11, 2018 decision declaring the state's death penalty unconstitutional, news outlets have questioned what comes next. Op-ed writers in North Carolina, Texas, and California have responded, urging their states to reconsider their capital punishment laws. The Washington court cited racial bias, "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as reasons why it struck down the death penalty. In a guest column in the Sacramento Bee, University of California Berkeley School of Law Dean Erwin Chemerinsky wrote, "California’s death penalty suffers the same flaws and likewise should be struck down." Similarly, Kristin Collins, Associate Director of Public Information at the Center for Death Penalty Litigation, wrote in a commentary for the North Carolina blog, The Progressive Pulse, "[i]f those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go." Writing in the Austin American-Statesman, University of Texas sociology professor William R. Kelly observed: "In light of the ever-present potential for error and bias, the absence of a deterrent effect and the extraordinary cost to prosecute, appeal and execute someone, we are left with the basic question: Is the death penalty worth it? It’s a question more states ought to ask."

Collins and Chemerinsky pointed to systemic problems in their respective states that they say provide reasons to repeal the death penalty or declare their capital punishment statutes unconstitutional. Collins said a September 2018 study by the Center for Death Penalty Litigation revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials." "Had they been tried under modern laws," she wrote, "most wouldn’t be on death row today." Chemerinsky highlighted the lengthy delays in California's death-penalty system and the large body of evidence showing that the state's death penalty is discriminatorily applied. Quoting federal Judge Cormac Carney's summary of the state of California's death row, he wrote: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." These types of problems "and the fact that the death penalty is extraordinarily expensive and does not do much to deter violent crime," Professor Kelly wrote, "may help propel other states to abolish it."

As Capital Retrial Begins, Former Judge Says Defendant Should Not Be Convicted

As Seminole County prosecutors seek the death penalty against Clemente Javier Aguirre-Jarquin a second time despite substantial evidence implicating another suspect, the Florida judge who initially sentenced Aguirre-Jarquin to death now says he should not be convicted. Retired Judge O.H. Eaton (pictured), who presided over Aguirre-Jarquin’s double-murder trial in 2006, said he now believes that the case is a “poster child” for the flaws in the death penalty system. “The evidence I heard during the trial [in 2006] substantiated the verdict,” Eaton told the Orlando Sentinel. “The evidence I’ve heard now does not. ... If I knew then what I know now, I probably would have ordered the jury’s verdict overturned.” 

Aguirre-Jarquin, an undocumented Honduran immigrant, was convicted of murdering his next-door neighbors, Cheryl Williams and her mother Carol Bareis, who were stabbed more than 130 times. Eaton imposed death sentences for both murders, based on non-unanimous 7-5 and 9-3 jury recommendations for death. Aguirre-Jarquin’s post-conviction lawyers later discovered that the mentally ill daughter and granddaughter of the victims, Samantha Williams—who had provided eyewitness testimony against Aguirre-Jarquin—had confessed to at least five different people that she had killed her relatives. She told one person: “I’m crazy, I’m evil and I killed my grandmother and my mother.” DNA results from blood evidence at the crime scene also implicated Williams. The Innocence Project, which assisted in Aguirre-Jarquin’s post-conviction representation, found that “[n]one of the DNA found on the 84 items that were tested matched Aguirre,” but was a match to Williams and the two victims. Eight bloodstains from Williams were found in four different rooms, each, the Innocence Project said, ”inches away from the victims’ blood." Based on this evidence, the Florida Supreme Court in 2016 unanimously overturned Aguirre-Jarquin's conviction. Seminole County prosecutors nonetheless decided to retry Aguirre-Jarquin, simultaneously arguing that Williams’s mental health problems make her confessions unreliable, but relying upon her testimony against Aguirre-Jarquin in his 2006 trial. They also argue that Aguirre-Jarquin—who says he went to his neighbors’ home to get beer, found their bodies, and tried to revive them—attempted to hide clothing with the victims’ blood on it, and did not call police after discovering his neighbors had been killed. Aguirre-Jarquin said he did not call the police because he feared deportation because of his undocumented status.

Florida has more death-row exonerations than any other state, with 27. Ninety percent of those exonerations came in cases in which one or more jurors had recommended a life sentence.  

Governor Rejects Jurors’ Plea for Clemency for Edmund Zagorski as Tennessee Court Allows Lethal Injections to Proceed

Ignoring declarations by six jurors in Edmund Zagorski’s 1984 trial that they would have spared Zagorski (pictured) if they could have sentenced him to life without parole, Tennessee Governor Bill Haslam rejected Zagorski’s petition for clemency on October 5, 2018. In conjunction with the Tennessee Supreme Court's October 8 ruling upholding the constitutionality of the state's lethal-injection protocol, Haslam’s decision moved the state closer to executing Zagorski on October 11. At the time of Zagorski’s trial, Tennessee law required jurors in death-penalty cases to choose between sentencing a defendant to death or risk the possibility that he could later be released on parole. The jurors in Zagorski’s case submitted sworn declarations in support of clemency, saying that they would have sentenced him to life without possibility of parole, rather than the death penalty, if they had been given the no-parole option. Juror Michael Poole told Nashville Scene, “Our concern was that at some point in time maybe this man would be released and could actually be out in society and commit such a crime again. ... [Zagorski] has paid a significant price up to this point, I feel, and the continuation of his imprisonment until he dies of natural causes I think is punishment enough.” Nancy Arnold, another juror, agreed. “[A]s far as the law was concerned, all we could do was what we did. We had no choice of life without parole. I would have definitely done that if it had been available.” Zagorski’s clemency plea was also supported by correctional officials who said he has been a model prisoner and has reformed during his 34 years on death row. Despite those statements, Gov. Haslam denied clemency, writing that “the jury in Zagorski’s case heard the evidence at trial and rendered a unanimous verdict in accordance with the law at the time and their duty as jurors. Ten courts, including the Tennessee Supreme Court and the Supreme Court of the United States, have reviewed and upheld the jury’s verdict and sentence, and the Tennessee Supreme Court has held that the addition of life imprisonment without the possibility of parole as a sentencing option does not affect previous verdicts.” The Tennessee Supreme Court on October 8 also removed a hurdle to Zagorski’s execution, ruling 4-1 that Tennessee's lethal-injection protocol is constitutional, and that prisoners did not prove an alternative was available, as required. In response to that ruling, Zagorski requested that the state execute him with the electric chair, saying, “I do not want to be subjected to the torture of the current lethal injection method.” In a statement, Zagorski’s lawyer, assistant federal defender Kelley Henry, said the Tennessee high court decision had left Zagorski to choose between “two unconstitutional methods of execution.” Describing the prospect of “10-18 minutes of drowning, suffocation, and chemical burning” as “unspeakable,” Henry said Zagorski found the electric chair to be “the lesser of two evils.” Zagorski is appealing the Tennessee Supreme Court’s decision.

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