Arizona

Arizona

Supreme Court Declines to Review Arizona Case Challenging Constitutionality of Death Penalty

The U.S. Supreme Court has declined to review a sweeping challenge to the constitutionality of capital punishment brought by Arizona death-row prisoner Abel Hidalgo (pictured). After scheduling consideration of Hidalgo v. Arizona for ten separate court conferences, the Court on March 19 unanimously denied Hidalgo’s petition for writ of certiorari. In a statement issued in conjunction with the Court’s ruling, however, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, expressed concern about a second issue raised by Hidalgo—the constitutionality of Arizona’s method of deciding which defendants are eligible for the death penalty. The four justices said that the Arizona Supreme Court had misapplied Supreme Court precedent on that “important Eighth Amendment question,” but believed the factual record was insufficiently developed to warrant the court’s review of the case at this time. Hidalgo had presented records from more than 860 first-degree murder cases over an eleven-year period in Maricopa County—where he was charged—showing that 98% of first-degree murder defendants in that county were eligible for the death penalty, but had been denied an evidentiary hearing to further develop the issue. This “evidence is unrebutted,” the four justices said, and “would seem to deny the constitutional need to ‘genuinely’ narrow the class of death-eligible defendants.” Although “[e]vidence of this kind warrants careful attention and evaluation,” they wrote, the absence of an evidentiary hearing had left the Court with a factual record that “is limited and largely unexamined by experts and the courts below.” With an “opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here,” the four justices said, “the issue presented in this petition [would] be better suited for certiorari.” The court declined without comment to review a broader challenge Hidalgo presented to the constitutionality of capital punishment itself. Hidalgo is one of many death-row prisoners to raise that issue in the wake of a 2015 dissent by Justices Breyer and Ginsburg in Glossip v. Gross in which they said it is “highly likely that the death penalty violates the Eighth Amendment” prohibition against cruel and unusual punishments.

Virginia Death-Row Prisoners Win “Landmark” Prison Conditions Lawsuit

In what lawyers for Virginia death-row prisoners have called “a landmark ruling,” a federal judge has issued an injunction barring the Commonwealth from subjecting prisoners who have been sentenced to death to automatic solitary confinement, physical isolation from visitors and other prisoners, and other harsh conditions. In a decision issued on February 21, Judge Leonie M. Brinkema wrote that the conditions to which Virginia subjected death-row prisoners before instituting reforms in 2015 violated the Eighth Amendment proscription against cruel and unusual punishments. Virginia had refused to commit to keeping the reforms, which it adopted only after the prisoners initiated suit, and the court's order prevents the state from reverting to the prior unconstitutional conditions. Before 2015, death sentenced prisoners spent about 23 hours a day alone in a 71-square-foot prison cell and were separated from visitors—including family members—by a plexiglass wall, although the warden had discretion to permit contact visits with family. For one hour a day, five days a week, prisoners were taken to a small “outdoor cell” with a concrete floor and no exercise equipment. Death-row prisoners were barred from the recreational facilities used by prisoners in the general population and allowed to shower only three times per week. Brinkema decided in favor of the three remaining death-row prisoners who had sued the state in 2014. While the suit was pending, one of the orginal plaintiffs, Ricky Gray, was executed and another, Ivan Teleguz, was granted a commutation. Lawyers for the prisoners said Brinkema's decision was the first time a court had ruled such conditions unconstitutional. In granting the prisoners' petition, the court said that “the rapidly evolving information available about the potential harmful effects of solitary confinement” set this case apart from prior prison-conditions lawsuits, and as a result the prior “decades-old determinations” by the Supreme Court and federal appeals court upholding death-row prison conditions were not binding. “As courts and corrections officers across the country have begun to realize, the years-long isolation that the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm,” Brinkema wrote. Kathryn Ali, one of the lawyers for the prisoners, said “[t]he law in this area is very bad but it's also very old. ... Judge Brinkema's ruling is a landmark ruling but i think its also just common sense, that we shouldn't be torturing people by keeping them in isolation.” Victor M. Glasberg, who filed the lawsuit on behalf of the five original plaintiffs in 2014, said the court's decision could have implications for prison-conditions lawsuits in other states. “This opinion should serve as a snowball let loose at the top of a snowy mountain, to turn into an avalanche as advocates in other states bring similar suits to end what has become increasingly recognized as untenable conditions in which to hold human beings,” he said. Under the reforms Virginia implemented in 2015, death-row prisoners are permitted to have contact visits with family members one day per week, for up to an hour and a half, as well as non-contact visits on holidays and weekends. They now have access to a covered outdoor yard for up to an hour and a half per day, five days a week. The yard has a basketball court and exercise equipment, which up to four prisoners at a time may share. Virginia now also permits daily one-hour access for up to four prisoners at a time to an indoor recreation space that has games, music, and a television. Death-row prisoners also are now permitted to shower daily.

Arizona Prosecutors Drop Death Penalty in Two Cases, Citing High Costs and Lengthy Legal Process

Prosecutors in Mohave County, Arizona announced in February that they will drop the pursuit of the death penalty in two murder cases in the county. Justin Rector and Darrell Ketchner were separately charged with first-degree murder, and officials said their defense teams had already spent over $2.2 million preparing for trials that are still far from taking place. Mohave County Attorney Matt Smith said, “Everybody’s looking to save money and these death penalty cases are extremely expensive." The murders happened in 2009 and 2014, but because of the thorough investigation and preparation required to competently defend a death-penalty case, Smith said, "[t]he anticipated soonest trial date in this case will be 10 years after the events charged." Even if the defendants were sentenced to death, "there is no reasonable likelihood of the death penalty actually being imposed in a realistic and efficient timeframe given the current state of affairs surrounding persons sentenced to death," he said. Bob Allison, whose granddaughter, Ariel, was allegedly killed by Ketchner, said he approves of the prosecutor's decision, in part because his other grandchildren were being bullied as a result of publicity around the case. “We’re OK with it because we want to protect the kids,” he said. “It’s a waste of money in my opinion and the end results are going to be the same.” Between fiscal years 2010 and 2018, Mohave County has spent nearly $3.6 million on defense costs in death-penalty cases. Because no lawyers in the county public defender’s or legal defender’s office meet the state's qualifications to handle death penalty cases, the county must contract out for those services, paying lead counsel at a rate of $125 per hour and $90 an hour for second-chair counsel. In 2016, the Mohave County Board of Supervisors authorized $344,000 in county funds to cover the costs of trying Rector and Ketchner. A Mohave County Superior Court judge granted the prosecution's motion to withdraw the death penalty in Rector's case on February 20, and allowed death-penalty counsel to withdraw from representing Rector. The court granted the motion to drop the death penalty in Ketchner's case on February 14. Only one case originating in Mohave County has ever resulted in an execution.

Junk Forensics, Misconduct, and an Inept Defense Raise Questions of Innocence in Arizona Child-Rape/Murder Case

Arizona death-row prisoner Barry Jones (pictured) has said for the twenty-three years he has been on death row that he never raped or murdered his girlfriend's 4-year-old daughter, Rachel Gray. In a pair of recent articles for The Intercept, reporter Liliana Segura describes the inconsistent medical testimony, police "tunnel vision," inept defense lawyering, and other "hallmarks of wrongful convictions" that led to a federal court evidentiary hearing last Fall that could overturn Jones's 1995 rape and murder conviction and death sentence and potentially set him free. Rachel died of peritonitis, an inflammation of her inner abdomen caused by an injury she sustained that had ruptured her small intestine. At Jones' trial, Dr. John Howard, the local medical examiner who conducted the autopsy, testified that the injury that caused her death had occurred about 12 hours before she died, at a time she was known to have been with Jones. However, when Howard later testified at the trial of Rachel's mother, he provided a self-contradictory opinion that suited the prosecution's case against her, asserting that the injury had likely occurred at least 24 hours before Rachel's death. Although the defense had contacted an independent pathologist—Dr. Phillip Keen—in 1994 to review the autopsy findings, Jones's lawyers never sent Keen images of the tissue slides or other evidence necessary to determine when the fatal injury occurred. The defense lawyers—and the police—failed to investigate evidence pointing to other suspects, including evidence that Rachel had been physically abused by her mother and bullied by a young boy who had pushed her and hit her in the stomach with a metal bar a few days before her death—exactly the type of injury that could have caused peritonitis. Further, there was no physical evidence suggesting that Rachel had been raped at the time she sustained the fatal abdominal injury. Rather, the evidence suggested that Rachel may have been sexually abused by a prior boyfriend of her mother, well before Jones became involved with the family. Jones's lawyers failed to call any expert witness at trial, and the only witness he presented was Jones's 12-year-old daughter. The prosecution also presented suspect eyewitness identification from two children who testified to having seen a man fitting Jones' description hitting a young girl in a van. Police, however, had questioned the two children in the presence of their mother, who had prompted some of their responses, and had failed to follow standard practices to avoid eliciting false memories. Jones's case has similarities to a number of other death-penalty cases in which defendants were wrongly convicted of murdering children. Sabrina Butler was wrongfully convicted and sentenced to death in Mississippi in 1990 when a local medical examiner testified that she had suffocated her nine-month-old son. Butler was exonerated in 1995 after medical evidence suggested that her baby died either of cystic kidney disease or from sudden infant death syndrome (SIDS). Rodricus Crawford was wrongly convicted and sentenced to death after a local doctor claimed he had suffocated his infant son. He won a new trial as a result of unrelated prosecutorial misconduct, and was exonerated in 2017 after national experts presented affidavits saying the autopsy results showed his baby had died from bronchopneumonia and sepsis. And Ha'im Al Matin Sharif was released from Nevada's death row in 2017, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Oral argument for Jones's case is scheduled in federal court on March 2.

Arizona Ends Death-Row Solitary Confinement, Sees Reduced Prisoner Anxiety, Lowered Costs, and Increased Safety

Several months after Arizona settled a lawsuit over the conditions of confinement on the state's death row, the state has ended the practice of automatically housing condemned prisoners in solitary confinement, and prisoners and prison officials alike are praising the changes. Carson McWilliams (pictured), Division Director for Offender Operations in the Arizona Department of Corrections (ADC), told the Arizona Republic that the new incarceration conditions provide an "atmosphere where [prisoners] can socialize," resulting in "reduce[d] anxiety" that, in turn, "adds to safety control" of the prison. And, prison officials say, it has reduced institutional costs. Prior to the lawsuit, death row had meant 23-hour-per-day confinement in a concrete cell the size of a parking space, shuttered by a steel door with a perforated slot through which the prisoners would receive their meals, and with a bench bed and a sink attached to an uncovered toilet. Prisoners had no contact visits with families or lawyers, were handcuffed behind the back and subjected to body-cavity searches whenever they left their cells, and were restricted to showering or exercising three times a week. They also were denied prison jobs and educational opportunities. About the solitary conditions, McWilliams remarked, "The more you're restricted inside a cell, the more likely you are to have depression, to have anxiety, to have other types of mental problems that could lead to some type of problem inside the system, whether its self harm, or suicide, or aggression towards a staff member or towards another inmate." One death-row prisoner who was interviewed by the paper said, "It’s hard to explain the deprivation. . . . It weighs on your mind." McWilliams said it now requires fewer officers to manage death row because officers no longer have to deliver individual meals or individually escort each of the 120 prisoners. Kevin Curran, who has been a prison warden at various facilities run by the ADC, said that he "feels safer among the death-row men than among the career criminals and gangsters in the general population." Under the new conditions, prisoners are able to socialize with each other in activities such as playing basketball, volleyball, or board games, and can eat meals together. One ADC corrections officer told the Arizona Republic that he was "apprehensive" at first about the changes, but the transition has been "very good" with only a "few minor incidents," which were "a lot less" than he expected. 

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DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

NEW VOICES: Former Law Enforcement Officials Say Arizona, Kansas Should End Death Penalty

Former high-ranking law enforcement officials from Arizona and Kansas have called on their states to end the death penalty. In separate op-ed stories one week apart, former Arizona Attorney General Terry Goddard (pictured, left) and former Kansas Secretary of Corrections Roger Werholtz (pictured, right) conclude that the capital punishment schemes in their states have failed and should be abandoned. In a November 5 op-ed in the Arizona Daily Star headlined Arizona's 40-year experiment with the death penalty has failed, Attorney General Goddard said "Arizona does not have a good track record for getting [the death penalty] right," pointing to problems of innocence, racial disparity, cost, and persistent structural problems with the state's death penalty law. Goddard, a former Mayor of Phoenix, later oversaw the executions of six people during his tenure as the state's Attorney General from 2003 to 2011. He now says the state's death penalty has "failed ... in fundamental ways," with a statute so broad that it "captur[es] nearly every first-degree murder" and defective statutory provisions and judicial procedures that have caused "dozens of [cases to] have been set aside." He says "[s]entencing the innocent to die ... is reason alone to abandon the death penalty." Although "[g]etting it wrong once is one time too many," Arizona "has swept up the innocent in its net" at least nine times. Goddard argues that the "unsettling racial disparities" in the application of Arizona's death penalty—Hispanic men accused of murdering whites are sentenced to death at more than four times the rate of white defendants accused of murdering Hispanics—and "[t]he spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy." Goddard concludes that, after four decades of using capital punishment, "Arizona has failed to narrow [its] application ... and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders." Given these "myriad problems," he says, "Arizona should join the rising tide against imposing it." On October 31, Corrections Secretary Werholtz also authored an op-ed advocating ending the death penalty, though for very different reasons. In an opinion piece in the Topeka Capital-Journal entitled End the death penalty in Kansas, Secretary Werholtz addressed the state's budget shortfall and the challenges it posed to keeping corrections staff, prisoners, and communities safe. Werholtz—who served 28 years with the Kansas Department of Corrections, including eight as its Secretary—says "one simple choice" in addressing the problem "would be to eliminate the excessive amounts of money we are spending on Kansas’ broken death penalty by replacing it with life without parole." As Kansas faces a decision on whether to build a new execution facility to replace an execution chamber that the state has never used, Werholtz "believe[s] it’s time we acknowledge that the return on our investment in the death penalty has been abysmal. Numerous studies conclude that the death penalty keeps us no safer than imprisonment, and yet it siphons away far more crime prevention dollars." Currently, he says, Kansas is unable to fully staff its correctional facilities or make technological improvements to ensure the safety of corrections officers and prisoners alike. “With funds so scarce, and the needs so great,” Werholtz says, “it simply makes no sense for us to continue to invest more in our ineffective death penalty."

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