New Voices

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revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials."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.

Fox Commentator: Oklahoma “Frontier Justice” Has Produced “Wretched Record” of Wrongful Capital Convictions

Calling Oklahoma “the notorious home of ‘Hang ’Em High’ executions,” conservative commentator and Fox News contributor Michelle Malkin (pictured) has urged the state to adopt sytemic reforms to address its “wretched record on wrongful convictions.” Malkin says that despite 35 exonerations in the last 25 years—including 7 death-row exonerations—and a “reign of prosecutorial terror and forensic error by the late Oklahoma County District Attorney Bob Macy and rogue Oklahoma City police department crime lab analyst Joyce Gilchrist,” the state has failed to create a forensic science commission to investigates errors and professional misconduct by crime labs and forensic analysts and “not a single Oklahoma district attorney’s office has established an official mechanism to review tainted convictions.” In an August 8, 2018 commentary for the Creators Syndicate, Malkin warns that “‘Frontier justice’ costs too many citizens of all races, creeds, and backgrounds their freedom and their lives.” She says, “In the old days of the Wild West, vigilantes worked outside the judicial system to punish rivals regardless of their guilt or innocence. Today, outlaws operate inside the bureaucracy to secure criminal convictions at all costs.” In her commentary, Malkin highlights the death-penalty exonerations of Curtis McCarty and Robert Lee Miller, Jr., and current appeals attempting to free death-row prisoner Julius Jones. Notorious former Oklahoma County District Attorney Bob Macy withheld evidence from McCarty’s attorneys, and crime lab analyst Joyce Gilchrist, implicated in at least 11 wrongful convictions, falsified and destroyed forensic evidence. Gilchrist’s false testimony in the case included claims that hairs found at the crime scene matched McCarty’s and that his blood type matched the semen found on the victim’s body. They didn’t. Miller’s case was also tainted by bad forensics and a coerced false confession. Malkin points to the case of Julius Jones—recently featured in the documentary series The Last Defense—as emblematic of some of the ongoing problems in Oklahoma cases. Jones, who is seeking appellate review of evidence that supports his innocence claims, filed motions for discovery and a request for an evidentiary hearing in December 2017. Under instructions of a court clerk, they placed supporting evidence in a sealed envelope labeled “protected material.” That crucial evidence was not presented to the court and disappeared for six months until Jones’ investigator was able to uncover them herself in the clerk’s office. The court initially rejected Jones’ appeal, but will now reconsider, due to the clerk’s “mismanagement of the exhibits.” Another Oklahoma County death-row prisoner, Richard Glossip, was convicted and sentenced to death based on solely on the testimony of a 19-year-old who confessed to the murder and then implicated Glossip in exchange for a reduced sentence. No physical evidence linked Glossip to the crime, the teen gave investigators multiple contradictory descriptions of the murder before adopting police suggestions that Glossip was involved, and two witnesses who have come forward with evidence of Glossip’s innocence say they have been subjected to retaliation and intimidation by prosecutors. Oklahoma, Malkin says, “stands out for its decades of trampling due process, subverting public disclosure, perpetuating forensic junk science, manufacturing false accusations and enabling official misconduct.” She says that, given the state’s record and its recent “chilling” history of “horrific botched executions,” permitting the state to resume executions poses a “human rights crisis.” Silence in the face of that crisis, she says, “is complicity.”

In First Post-Ferguson Election for St. Louis County Prosecutor, Death-Penalty Opponent Unseats Long-Time Incumbent

In an election viewed as a referendum on racial justice and criminal justice reform, death-penalty opponent Wesley Bell (pictured, left) soundly defeated seven-term incumbent, Robert McCulloch (pictured, right) for the Democratic nomination for St. Louis County Prosecuting Attorney. With no Republican opposition in the general election, Bell, a Ferguson, Missouri, city council member, is expected to become the county's first African-American chief prosecutor. The election was the first time McCulloch—who had a substantially larger campaign purse and was heavily favored to win—had faced the voters since the Ferguson protests and his failure to indict a white police officer for the murder of unarmed black teenager, Michael Brown. Bell, a former public defender and prosecutor who called for ending cash bail for nonviolent offenses, ending mass incarceration, and eliminating use of the death penalty, was endorsed by numerous activist organizations promoting criminal justice reform, including Democracy for America, The Color of Change, and The Real Justice PAC. Surprising the political establishment, Bell won easily, receiving 57% of the vote. McCullouch—the county's Prosecuting Attorney since 1991—was known as a highly aggressive prosecutor with close ties to the police and who disproportionately sought death sentences. Community activists and civil rights groups were galvanized in opposition to McCulloch after he failed to indict Officer Darren Wilson for Brown's murder, prosecuted Ferguson protesters, and advocated for the execution of death-row prisoner Marcellus Williams despite DNA evidence revealing that another man's DNA—and not Williams'—was on the murder weapon. A July 2015 study found that the county's death-penalty practices contributed significantly to stark racial and geographic disparities in the application of capital punishment in Missouri. The study found that a person convicted of homicide in St. Louis County is three times more likely to be executed than if he or she were convicted elsewhere in the state and 13 times more likely to be executed than a person convicted in neighboring St. Louis City. Courts also have repeatedly found that the county's prosecutors discriminatorily struck African Americans from jury service because of their race. St. Louis County ranks among the 2% of U.S. counties that have produced a majority of all death sentences in the U.S. since the 1970s, and it has executed more prisoners than all but eight other counties in the country during that period. Bell's campaign website says "capital punishment is expensive, ineffective at deterrence, and is also racially biased. ... [D]ecades of data and information determine that Capital Punishment is not a deterrent for violent crime. Exercising his discretion as Prosecuting Attorney, [Bell] will never seek the death sentence."

New Conservative Voices Criticize Death Penalty as an 'Inept, Biased and Corrupt' Big Government Policy

Calling the death penalty a wasteful "big government" policy that is "inept, biased, and corrupt," a libertarian think tank and a New Orleans columnist have joined the chorus of conservative voices calling for the end of the death penalty. In Conservative doesn't mean supporting death penalty, New Orleans Times-Picayune columnist Tim Morris (pictured) argues that being a conservative requires neither "an unyielding fealty to a party or person [or] simply finding the polar opposite of some liberal position," and that while he believes that "capital punishment can be morally justified," "our government has proven to be ... inept, biased and corrupt in carrying out that responsibility." Likewise, in a July 22, 2018 commentary, If You Hate Big Government, You Should Oppose the Death Penalty, published on the Foundation for Economic Education website, Patrick Hauf writes that "[f]rom fiscal irresponsibility to wrongful convictions to botched executions, the death penalty is merely another wasteful government effort." Hauf, too, criticizes what he sees as reflexive support for the death penalty among some conservatives. While many "pride themselves on their unapologetic use of the death penalty, its enactment," Hauf says, "like most government programs, is both inefficient and ineffective." Morris, whom the newspaper describes as an “independent thinker with a Christian worldview and a journalist’s sense of skepticism,” dismisses the notion that all conservatives must support the death penalty. As evidence that government cannot properly administer capital punishment, he says "too many innocent people are being sentenced to death" and notes that 82 percent of death-row cases in Louisiana from 1975-2015 ended with the conviction or sentence being reversed. In another op-ed, he cites findings from a University of North Carolina study that a black male in Louisiana is 30 times more likely to be sentenced to death if the victim was a white female than when the victim was a black male. After detailing the reasons conservative political strategist Richard Viguerie and Pulitzer prize winning conservative columnist George Will also oppose capital punishment, Morris sums up: “the death penalty is arbitrary, racially discriminatory, and doesn't deter crime. I don't see anything conservative about supporting an inept, biased, corrupt system." Hauf also tauts growing Republican resistance to the death penalty, citing a 2017 report by Conservatives Concerned About the Death Penalty that highlighted a dramatic rise in Republican sponsorship of bills to abolish capital punishment and the results of a Gallup poll that reported 10-percentage-point decrease in support for the death penalty among conservatives in 2017. He notes the ideological inconsistency between principled conservatism and the death penalty, saying capital punishment is "one issue where conservatives often give far too much power to the government." He writes, "many Republicans allow their 'tough on crime' mentality to overrule limited government ideals and innate skepticism of state overreach. This contradiction within the Republican platform, although rarely acknowledged, exposes a weakness in the party’s ideology. If Republicans pride themselves on their limited government philosophy, then why would they grant the government control over life and death?" There is, he concludes, "nothing 'small government' about capital punishment. ... It’s time for Republicans to kill capital punishment off for good." 

Kentucky Legislature Conducts Hearing on the Commonwealth's Death Penalty

A joint committee of the Kentucky legislature conducted a hearing on July 6, 2018 on the Commonwealth's rarely used death penalty, including a presentation by supporters and opponents of a bill to abolish capital punishment. The General Assembly's Interim Joint Committee on Judiciary took testimony from prosecutors, defense attorneys, correctional officials, and legislators on issues ranging from costs and arbitrariness to the length of the appeal process. Though Kentucky currently has 31 prisoners on death row, and prosecutors across the Commonwealth have filed 52 notices of intent to seek a death sentence, only three people have been executed since 1976. The last execution took place in 2008, and only one death sentence has been imposed in the last five years. Rep. Jason Nemes (R-Louisville), one of the sponsors of a House bill to abolish the death penalty, told the committee, "Kentucky should get out of the business of killing its citizens – period." Criticizing capital punishment based on his pro-life and small government views, Nemes noted that more than 150 people have been exonerated since the 1970s after having been wrongly convicted and sentenced to death in the U.S., and 49 out of the 97 death sentences imposed in Kentucky have already been overturned. "We don’t believe the government can adequately fill potholes," Nemes said. "And if we don’t believe the government can do that perfectly, then why should we give it the power to do that which is irreversible?" Senate Minority Leader Ray S. Jones (D-Pikeville) said that infrequent executions erode whatever deterrent effect the death penalty might have. Instead, he said, the death penalty creates a "false hope of closure." Rep. John Blanton (R-Salyersville), a retired Kentucky State Police officer and an execution proponent, responded, “[t]he problem is not the death sentence, the problem is the length of time we allow these people to look for everything under the sun." "Let's speed up the process," he said. The Kentucky Department of Public Advocacy estimates the cost of the death penalty to Kentucky taxpayers at about $10 million per year. Executions have been on hold in the Commonwealth since 2010, when a state judge placed an injuction halting all executions while courts reviewed the lethal injection protocol. Andrew English, general counsel for the Justice Cabinet, said the Department of Corrections has attempted to "rewrite the regulations to achieve conformity with the court rulings," but that "[t]here’s an ever-evolving change in the landscape when it comes to federal and state courts, with the death penalty." Kentucky, like other states, has encountered problems with determining what drugs are appropriate and available for use in executions.

Death-Penalty Juror Describes “Anguish” of Imposing a Death Sentence

Lindy Isonhood (click to enlarge picture) served on the Mississippi jury that sentenced Bobby Wilcher to death in 1994. In a commentary published on Medium, she writes that the decision to condemn Wilcher "continue[s] to haunt me today." Isonhood—whose experience as a death-penalty juror is the subject of a new documentary film, Lindy Lou, Juror Number 2—explains how little she and her fellow jurors knew about the death-penalty system when they were tasked with determining Wilcher's fate. They were unaware of the rarity of death sentences, the lack of adequate counsel, and changing public attitudes toward capital punishment. She describes feeling "guilt and complicity" for her role in Wilcher's execution. "Judges, lawyers, prison guards, families of the victims and families of the condemned — along with ordinary jurors like myself — are swept into a world where judgments of death are handed down, but everyone else is expected to emerge untouched," she wrote. The one-hour film, which will premiere on PBS on July 16, 2018, follows Isonhood's journey to visit other jurors from the case and discuss their experiences. Isonhood met with Wilcher before his execution, and said, "I saw him as a fellow human being, flawed but caring, even towards me." She concludes, "If I was called to serve on Bobby Wilcher’s jury today, I could not sentence him to death. I say this not because of what I learned about him before his execution, but because of what handing down a death sentence can do to people like me. I no longer feel as guilty about my decision in Bobby’s case, but I wish I could have foreseen how it would affect me and my loved ones for the rest of my life."

Pages