Alabama

Alabama

Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

U.S. Supreme Court Rules in Favor of Alabama Death-Row Prisoner in McWilliams v. Dunn

In a 5-4 decision released June 19, 2017, the U.S. Supreme Court ruled that Alabama had unconstitutionally denied death-row prisoner James McWilliams (pictured) the assistance of an independent mental health expert. The Court wrote that its 1985 ruling in Ake v. Oklahoma, which entitles indigent defendants to the assistance of a mental health expert, encompassed a clearly established right to an expert who is "independent from the prosecution." In his opinion for the Court, Justice Breyer wrote that "Alabama’s provision of mental health assistance fell ... dramatically short of Ake’s requirements." The defense had no expert to help it prepare to examine the doctors who testified for the state, and only presented testimony about his mental condition from McWilliams and his mother. After the jury voted 10-2 to recommend the death penalty, the court scheduled a formal sentencing hearing and appointed a state neuropsychologist to examine McWilliams. That doctor prepared a report of the evaluation and consulted with the prosecution. Defense counsel received the neuropsychological report—which stated that McWilliams had “organic brain damage,” “genuine neuropsychological problems,” and “an obvious neuropsychological deficit”—only two days before his sentencing hearing. On the day of the hearing, counsel received extensive prison mental health records that contained evidence that McWilliams was being prescribed anti-psychotic medication. After denying the defense time to consult with an independent expert to develop the mental health evidence for use in mitigation, the court found no mitigating evidence and sentenced McWilliams to death. Justice Breyer wrote, "Ake clearly established that when certain threshold criteria are met, the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively 'conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.'" The Court remanded the case to the U.S. Court of Appeals for the 11th Circuit, which must now determine whether Alabama's violation of McWilliams' right to an independent expert had the "'substantial and injurious effect or influence' required to warrant a grant of habeas relief." Stephen Bright, who argued on behalf of McWilliams before the Supreme Court, said, "Today’s decision is about fairness. The adversarial process cannot function properly if the prosecution can retain mental health experts, but the defense is not even allowed to consult with an expert." He said, "James McWilliams could not have a fair trial without a mental health expert to assess his brain damage and other mental impairments and to help his counsel present that information to the sentencing court." 

Federal Court Grants Lethal-Injection Stay to Alabama Prisoner With Claims of Attorney Abandonment, Flawed Forensics

Robert Melson (pictured), an Alabama death-row prisoner whose clemency petition alleges that abandonment by his post-conviction lawyers prevented him from adequately challenging the flawed forensic evidence in his case, received a stay of execution from the U.S. Court of Appeals for the 11th Circuit on a challenge to Alabama's lethal-injection protocol. Melson was convicted of three murders at a Popeye's restaurant in 1994. A survivor of the crime recognized one of two assailants as Cuhuatemoc “Tempo” Peraita, an acquaintance of Melson's, and described the second assailant only as a black man. More than an hour after the crime occurred, police pulled over Peraita's car, and arrested him along with the black male passenger, Robert Melson. At the suggestion of police, Peraita—a 17-year-old with intellectual impairments—confessed to having been present during the crime, but claimed Melson had shot the victims. (Peraita has since recanted his accusation.) Melson has consistently maintained his innocence. During the interrogation, police took Melson's shoes from him. According to Melson's clemency petition, "Five days later, a police evidence technician belatedly discovered, photographed, and cast footprints in a rainy drainage ditch behind Popeye’s restaurant, which they later said matched Mr. Melson’s shoes." Peraita didn't testify at Melson's trial, and the witness who had identified Peraita did not identify Melson in a photo lineup. No other forensic evidence—such as fingerprints or DNA—linked Melson to the crime. As a result, Melson's conviction relied heavily on the shoeprint evidence, a type of evidence that the landmark 2009 report on forensic science by the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward, found to be unreliable, unscientific, and susceptible to bias. In addition to the problems inherent with shoeprint evidence, nearly two inches of rain had fallen between the time of the crime and the time police reported discovering the shoeprint. Melson should have been able to challenge the shoeprint evidence during his post-conviction appeal, but was represented by an inexperienced volunteer attorney who was not licensed in Alabama and a local attorney who had a history of malpractice. The lawyers did not properly file Melson's state post-conviction petition, and then, on appeal, they filed the documents in the wrong court, causing his appeal to be dismissed. The error was compounded because the attorneys failed to inform Melson of the dismissal. Melson's time to file a petition for habeas corpus in federal court ran out before he learned his state case had been dismissed. Cases like Melson's raise concerns about Alabama's recently passed "Fair Justice Act," which would potentially exacerbate errors like those made by his attorneys, since state deadlines would be shorter and stricter and all state death penalty appeals would run concurrently. In a separate case, Melson and several other Alabama death-row prisoners challenged Alabama's use of midazolam in executions, highlighting problems that have occurred when the drug was used in past executions. The 11th Circuit stayed Melson's June 8 execution to allow time for it to consider that challenge. [UPDATE: The U.S. Supreme Court vacated the stay of execution, and Melson was executed as scheduled.]

Alabama Prisoner Facing Eighth Execution Date Claims Innocence, Challenges Execution Procedures

Tommy Arthur (pictured), an Alabama death-row prisoner whose 35-year journey through the court system has frustrated both proponents and opponents of the death penalty, is scheduled to be executed on May 25, 2017, the eighth time Alabama has set an execution date in his case. Arthur—whose conviction and death sentence has twice been overturned by the courts and was sentenced to death by his trial judge based upon a non-unanimous jury sentencing recommendation—has steadfastly maintained his innocence in the 1982 murder of Troy Wicker. Most recently, an evenly divided U.S. Supreme Court issued a stay of execution four hours after Arthur's execution was set to begin on November 3, 2016, so the Court could consider whether to review Arthur's challenge to Alabama's use of the controversial drug midazolam and his request to be executed by firing squad. The Court ultimately declined to review both that claim and Arthur's separate challenge to the constitutionality of Alabama's non-unanimous sentencing practices. Arthur has repeatedly raised innocence claims, seeking new forensic testing of evidence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hiring Arthur to kill her husband, testified at her trial that her husband had been murdered by a burglar who beat and raped her. After Ms. Wicker's conviction, she changed her testimony when a prosecutor, who had previously represented her at a parole hearing, offered her early release if she testified against Arthur. The rape kit taken from Ms. Wicker at the time of the murder was lost or destroyed without being tested for DNA and, according to Arthur's current lawyer, Suhana Han, “[n]either a fingerprint or a weapon, nor any other physical evidence connects Arthur to the murder of Troy Wicker.” Hairs found near the victim have also never been tested with modern DNA technology. Arthur has also argued that his trial counsel was ineffective, and continues to litigate issues relating to Alabama's lethal injection protocol. He currently has an emergency motion pending before the U.S. Court of Appeals for the 11th Circuit, challenging the state's planned use of midazolam, a drug that has been linked to many problematic executions, including that of Ron Smith in Alabama in December 2016. He has also challenged the state's refusal to disclose records related to the Smith execution, which his lawyers say may provide critical evidence for his lethal-injection challenge. The Alabama Court of Criminal Appeals issued a preliminary ruling in Arthur's favor on a separate issue on May 23, reversing a Montgomery Circuit judge's order rejecting Arthur's claim that the legislature, rather than the Department of Corrections, should determine the state's execution method. But that procedural ruling will not delay his execution. His motion stated, "The role of the legislature is particularly critical given the controversial nature of the ADOC's current midazolam-based execution protocol. ...The choice of the first drug (midazolam) to be used is critical, because without an effective anesthetic, the second and third drugs would cause unbearable pain. But the drug the ADOC chose (in secret), midazolam, is not used in medical practice as a general anesthetic; rather, it is an anti-anxiety sedative in the same drug family as Valium and Xanax, and its use in lethal injection has been extremely problematic." [UPDATE: Alabama executed Thomas Arthur near midnight on May 25. He was pronounced dead at 12:15 a.m. on May 26. Media witnesses reported no visible indicators that the drugs had failed.]

Death-Row Exoneree, Law Professor, Attorney Voice Opposition to Alabama's "Fair Justice Act"

Soon after passing legislation to make death penalty trials fairer by preventing judges from overriding jury recommendations of life sentences, the Alabama legislature is taking steps to enact a bill that critics say would make capital appeals far less fair. The bill, denominated the "Fair Justice Act," would constrict the amount of time death-row prisoners have to file appeals, impose deadlines for judges to rule on appeals, and require prisoners to pursue their direct appeal and post-conviction appeal simultaneously. Critics of SB 187/HB 260, which has passed the Senate and been approved by the House Judiciary Committee, include Harvard Law School Professor Ronald Sullivan Jr., Alabama death-row exoneree Anthony Ray Hinton, and Birmingham attorney Lisa Borden, who say the proposal is neither fair nor just. They argue that the bill would reduce the quality of appellate representation, insulate trial errors from appellate review, and increase the risk of executing innocent people. Sullivan called the bill "deceitfully named" and wrote it would "undermine much of the progress" made when Alabama recently became the last state in the U.S. to end judicial override. Hinton, who spent 30 years on Alabama's death row before being exonerated, said, "If proposed changes to Alabama's postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence." Hinton explains that he spent 14 years looking for volunteer lawyers who could help him prove his innocence, saying, "Because the so called "Fair Justice Act" now pending before the state legislature puts time restrictions on how long death row prisoners have to prove their innocence or a wrongful conviction, this legislation increases the risk of executing innocent people and makes our system even less fair." Borden raises concerns that the poor quality of trial-level representation will spill over into the proposed shortened appeals process. "The average trial of a capital case with appointed counsel takes just a few days, given appointed counsel's frequent lack of preparation and failure to challenge the State's case. ...The attorneys and experts who will try to uncover and correct the injustices done to poor defendants must not be forced to rush through the process too." She suggests, "If Alabama wants to save taxpayers millions of dollars, and provide certainty and finality for the peace of mind of the victim's families, it could do so by abolishing the death penalty, or by limiting its use to only the most egregious cases and providing real, effective representation for those charged with capital crimes."

Supreme Court Tells Alabama to Reconsider the Factors It Has Used to Determine Intellectual Disability

The U.S. Supreme Court has vacated the Alabama state courts' rejection of a prisoner's claim that he is ineligible for the death penalty because of intellectual disability, and directed the state to reconsider his claim in light of the Court's recent decision in Moore v. Texas requiring states to employ scientifically accepted standards in determining whether a death-row prisoner is intellectually disabled. On May 1, 2017, the U.S. Supreme Court agreed to review the case of Taurus Carroll, and vacated the Alabama Court of Criminal Appeals' decision in his case after Carroll's lawyer argued that the March 28 decision in Moore established that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In 2002, the Supreme Court ruled in Atkins v. Virginia that defendants who are found to have intellectual disability—then known as mental retardation—cannot be executed. The ruling left states with discretion in establishing procedures for determining which defendants have intellectual disability. In Moore, however, the Court reiterated that this discretion is not “unfettered” and that a state's intellectually disability determination must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas' use of an unscientific set of lay stereotypes, known as the “Briseño factors," that Texas had used to determine whether Moore had deficits in adaptive functioning characteristic of intellectual disability. The Court said that, "[i]n concluding that Moore did not suffer significant adaptive deficits, the [Texas courts] overemphasized Moore’s perceived adaptive strengths," but "the medical community focuses the adaptive-functioning inquiry on adaptive deficits." In Carroll's case, the Alabama courts had considered Mr. Carroll’s supposed adaptive strengths—that he had passed a GED exam and successfully held down a job in the prison kitchen—as proof that he was not intellectually disabled. Carroll's attorney argued that, “As in Moore, the consideration below of Mr. Carroll’s adaptive functioning ‘deviate[s] from prevailing clinical standards, by ‘overemphasiz[ing] Mr. [Carroll]’s perceived adaptive strengths.” He also argued that Alabama had unconstitutionally employed a strict IQ cutoff score, while at the same time inflating Carroll's IQ score by refusing to apply scientifically established factors that adjust for limitations in IQ testing. With the Supreme Court's ruling in Carroll's case, the Alabama Court of Criminal Appeals must now determine how Moore affects Alabama's methods of determining intellectual disability. John Palombi, a lawyer with the Federal Defenders for the Middle District of Alabama, said he was "pleased" with the Court's decision. “This will require Alabama courts to follow scientific principles when making the life or death decision of whether someone charged with capital murder is intellectually disabled,” he said.

Alabama Legislature Votes to End Judicial Override

The Alabama legislature has approved and sent to the Governor a bill that would bring to an end the practice of permitting trial judges to impose death sentences over a capital sentencing jury's recommendation that the defendant be sentenced to life. Alabama is the only state in the U.S. that currently permits judicial override. The legislature acted in response to mounting court challenges to Alabama's death penalty statute. On April 4, the state House of Representatives voted 78-19 to pass a bill prohibiting trial judges from overriding the sentencing recommendations of juries in death penalty cases. Governor Robert Bentley has indicated that he intends to sign the legislation. Two versions of the proposal had advanced in the state legislature. A bill sponsored by Sen. Dick Brewbaker (R-Montgomery) that would eliminate judicial override but retain Alabama's practice of allowing death sentences if ten or more jurors voted for death, passed the Senate 30-1 on February 23. A House bill by Rep. Chris England (D-Tuscaloosa) that would have abolished judicial override and required a unanimous jury vote for death had passed the House Judiciary Committee on February 16. Rep. England agreed to substitute the Senate version of the bill, which then overwhelmingly passed the House. The bill "places the death penalty back in the proper perspective," England said. "It puts it ... where in my opinion the Constitution intends it to be: in the hands of juries." Although Alabama is no longer an outlier on judicial override, it remains the only state in the country to permit a death sentence to be imposed based upon a non-unanimous jury vote. According to research by the Equal Justice Initiative (EJI), judicial override has historically been employed to impose death sentences when a jury recommended life, rather than as a safeguard against unjust jury votes for death. In 101 of the 112 cases in which Alabama judges have overriden capital jury sentencing recommendations, they have imposed the death penalty over a jury recommendation of life. The EJI study also found that the use of judicial override has been influenced by political concerns, with sentencing overrides disproportionately rising in election years. Bryan Stevenson, founder of EJI, said, "Override undermines the role of jurors, who sometimes deliberate for hours to make the right decisions in these cases on behalf of the community. Alabama has had one of the highest death-sentencing rates in the country largely because we add to death row so many people juries do not believe should be executed."

Federal Appeals Court Finds Alabama Prisoner Incompetent To Be Executed

The U.S. Court of Appeals for the Eleventh Circuit ruled on March 15 that Alabama death-row prisoner Vernon Madison (pictured)—who was spared execution last May when the U.S. Supreme Court deadlocked at 4-4 on whether to lift a stay—is not mentally competent to be executed. The appeals court overturned an Alabama state court ruling, saying that the state court had unreasonably determined the facts when it concluded that Madison was aware of the reasons for his impending execution. “The only evidence in the record that does address this issue demonstrates that, due to his serious mental disorder, Mr. Madison does not understand the connection between his crime and his execution,” Judge Beverly Martin wrote. Under the 1986 Supreme Court ruling Ford v. Wainwright, the execution of individuals who lack a rational or factual understanding that they will be executed and the reason for their execution constitutes cruel and unusual punishment, in violation of the Eighth Amendment. The court found that the record contained uncontroverted evidence that Madison has "memory loss, difficulty communicating, and profound disorientation and confusion," in part caused by two debilitating strokes in 2015 and 2016. As a result, he no longer remembers the crime for which he was sentenced to death, nor does he understand why he was to be executed. He asked the prison to notify his mother of one of his strokes, but she had been dead for several years. The court noted that Madison is, "legally blind, cannot walk independently, is incontinent and has slurred speech.” Madison is one of the longest serving death-row prisoners in Alabama, having been tried three times for the 1985 murder of a Mobile police officer. His first conviction was overturned because of racially biased jury selection. His second conviction was reversed because prosecutors presented illegal evidence. At his third trial, the jury voted 8-4 to recommend that Madison receive a life sentence, but the judge overrode the jury's verdict and sentenced him to death. In 2016, the Eleventh Circuit granted Madison a stay of execution just hours before he was scheduled to die, in order to consider his incompetency claim, and the Supreme Court split on the prosecution's motion to vacate the stay, leaving the appeals court's decision in place. 

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