Tennessee

Tennessee

STUDY: The Death Penalty in Tennessee is “a Cruel Lottery”

A new study of Tennessee's death penalty concludes that the state's capital-punishment system is "a cruel lottery" that is "riddled with arbitrariness." The study, published in the summer 2018 issue of the Tennessee Journal of Law and Policy, examined every first-degree murder case in Tennessee since 1977 to determine whether the state had redressed the arbitrariness that led the U.S. Supreme Court to declare the nation's death-penalty laws unconstitutional in 1972. In their article, Tennessee's Death Penalty Lottery, lawyers H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean write that the odds "are close to nil" that a person who was supplied with a description of the 2,514 first-degree murder cases prosecuted in Tennessee in the last forty years could identify the 86 cases that have resulted in death sentences sustained on appeal or the six cases that have resulted in executions. The facts of the crime, they found, did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case. The study found that more Tennessee death sentences have been overturned in the courts — 106 — than have been sustained, and many of the sustained cases are still under post-conviction appeal. Moreover, the study found "a sharp decline" in death sentences imposed over the past twenty years. In the four-year period from July 1989 through June 1993, there were 282 first-degree murder cases in Tennessee, with 38 trials resulting in death sentences; from July 2009 through June 2013, 284 first-degree murder cases produced six death sentences. Tennessee has imposed only one new death sentence since 2013. The authors concluded that "[t]he death penalty system as it has operated in Tennessee over the past 40 years, and especially over the past ten years, is but a cruel lottery, entrenching the very problems that [the Supreme Court] sought to eradicate." The study was released shortly before Tennessee is scheduled to perform its first execution in nearly nine years. The state plans to execute Billy Ray Irick on August 9, 2018, using a three-drug protocol (midazolam, vecuronium bromide, and potassium chloride) that has been implicated in past botched executions in other states. More than 30 death-row prisoners are suing the state, arguing that the protocol violates the Eighth Amendment ban on cruel and unusual punishment. Even Tennessee's own corrections staff has raised concerns about the plan. An unidentified state employee who was working to obtain lethal injection drugs wrote in an email to state officials: "Here is my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially." The state's plan to use compounded drugs has also drawn criticism, in part because drug-production by compounding pharmacies is not subject to the same regulatory oversight as drugs produced by major manufacturers. In a trial that began July 9, lawyers for the prisoners argued that medical evidence will show that Tennessee's three-drug combination is the equivalent of chemical waterboarding, being buried alive, or being exposed to liquid fire or sarin gas. Prosecutors have argued that to be unconstitutional, the state's execution method would have to amount to torture or be a gruesome practice such as disembowelment, beheading, or burning at the stake.

STUDY: Tennessee Could Save $1.4 Million Annually Ending Death Penalty for Severe Mental Illness

Tennessee could save an estimated $1.4–1.89 million per year by adopting a ban on capital punishment for defendants with severe mental illness, according to a new report by the American Bar Association Death Penalty Due Process Review Project. The report said a severe mental illness death-penalty exclusion “could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible” for capital prosecution. As a result, “their trials and appeals would be significantly truncated, while still resulting in guilty verdicts.” The study projected statewide costs based upon its review of the death-row population from Shelby County, Tennessee, the nation's 13th largest county death row, and the results of comprehensive cost studies from other jurisdictions. Based on the 67 death sentences imposed in Shelby County between 1977 and 2017, the study estimated that approximately 15% of death-row prisoners had been diagnosed with a severe mental illness, which includes schizophrenia, schizoaffective disorder, bipolar disorder, delusional disorder, or major depression. If the same percentage of death-sentenced prisoners across the state had severe mental illness, the study said, 28 prisoners would have been exempted from Tennessee’s death penalty since 1977. The report based its cost estimates on a 2008 Urban Institute cost study of Maryland’s death penalty—considered one of the most rigorous of the state death-penalty cost studies conducted across the country. That study found that death-penalty cases cost about $1.9 million more than non-capital murder cases. Using that estimate, the report said, eliminating the 28 capital prosecutions of severely mentally ill defendants would have saved Tennessee $54.8 million over the last 40 years, or an average of $1.4 million per year. Mental Health America estimates that 20% of death-row prisoners have serious mental illness, the report said, and using its estimate of the prevalence of severe mental illness, Tennessee’s average annual savings would be even higher, at $1.89 million. Because no data were available on capital prosecutions in which seriously mentally ill defendants were not sentenced to death, the report did not calculate the potential additional cost savings from decapitalizing those cases. Tennessee is one of several states considering a mental illness exemption from the death penalty, and was selected for the study because it provides detailed information on all first-degree murder cases since 1977. In 2017, former Tennessee Attorney General W.J. Michael Cody expressed his support for a mental illness exemption, saying, “[a]s a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ... But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.”

Tennessee Supreme Court Rejects Attorney General’s Request for 8 Executions by Drug Expiration Date

The Tennessee Supreme Court has denied a request from the state's attorney general to schedule eight executions before the June 1, 2018 expiration date of Tennessee's supply of one of its execution drugs. Tennessee Attorney General Herbert Slatery had filed the request on February 14, saying that scheduling executions "after June 1, 2018 is uncertain due to the ongoing difficulty in obtaining the necessary lethal injection chemicals." The court's March 15, 2018 order did not explain why it rejected the request, but it did set two execution dates to be carried out later in the year. The court scheduled the execution of Edmund Zagorski for October 11 and set a December 6 execution date for David Earl Miller. Three other Tennessee death-row prisoners already had execution dates this year, though two of them—James Hawkins and Sedrick Clayton—have not yet completed their appeals. Thirty-three Tennessee death-row prisoners are challenging the state's use of midazolam as part of its execution protocol, arguing that the protocol "amounts to torturing prisoners to death." The prisoners cite botched executions in other states that have used midazolam, including Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. Because of that litigation and the Attorney General's statements about the unavailability of lethal-injection drugs, Tennessee's ability to carry out any of the scheduled executions remains uncertain. The state prosecutor's request was reminiscent of Arkansas's controversial attempt in April 2017 to carry out eight executions over the span of eleven days before its supply of midazolam expired. Four of those executions were stayed and witnesses reported indications that two of the executed prisoners—Jack Jones and Kenneth WIlliams—remained conscious during the execution process after the midazolam was supposed to have rendered them insensate. 

Tennessee Attorney General Seeks Eight Execution Dates as Prisoners Challenge "Torturous" Drug Protocol

Thirty-three Tennessee death-row prisoners have filed a lawsuit challenging the constitutionality and legality of the state's new execution protocol, after Tennessee Attorney General Herbert Slatery (pictured) asked the state supreme court to expedite executions before one of the state's execution drugs expires. On February 14, Slatery asked the court to schedule eight execution to be carried out before June 1. Attorneys for the death-row prisoners, who were in the process of finalizing their challenge to the protocol, asked the high court for two weeks to respond to the Attorney General's request for death warrants. On February 20, they filed their own complaint in the Davidson County Court of Chancery arguing that the execution process adopted by state officials used drugs their own suppliers have told them will not work properly, and that the "torturous" drug protocol adopted by the state should be ruled unconstitutionally cruel and usual. In January, Tennessee changed its lethal-injection protocol from a one-drug barbiturate—the method used in the most recent executions carried out by Texas, Missouri, and Georgia—to a three-drug formula using the controversial drug midazolam, which has resulted in protracted and problematic executions in several states. Although Tennessee has not carried out an execution since 2009, the Attorney General said the state's ability to carry out lethal-injection executions "after June 1, 2018 is uncertain due to the ongoing difficulty in obtaining the necessary lethal injection chemicals." One of the lawyers for the prisoner, Supervisory Assistant Federal Public Defender Kelley J. Henry, said, "What Tennessee is proposing to do amounts to torturing prisoners to death, which we know because we’ve seen this protocol fail in other states." She said "You cannot break the law in order to enforce the law," but the protocol "requires pharmacists, doctors, and prison officials to act illegally." The prisoners' lawsuit references an email between a drug supplier and Tennessee corrections officials—a copy of which was obtained by the USA Today Network—showing that prison officials had been alerted to potential problems with midazolam months before they adopted their new drug protocol. In that September 2017 email, the supplier wrote: "Here is my concern with midazolam ... it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride especially." The Justices of the U.S. Supreme Court have likened the unanesthetized use of potassium chloride to being "chemically burned at the stake," and the prisoners' lawyers it would unconstitutionally subject their clients to "being burned alive from the inside." In February of last year, the state of Arkansas set eight executions over an 11-day period of time—all scheduled before the end of April based on the concern that the lethal-injection drugs would expire and the state would be unable to obtain more. Arkansas only carried out four of the eight, and there were notably visible problems with the use of midazolam in at least one of the four executions. Later in the year, Arkansas obtained additional drugs for another execution, which ultimately was stayed as a result of competency issues.  [UPDATE: On March 15, 2018, the Tennessee Supreme Court denied the Attorney General's request, but did set two execution dates, scheduling the executions of Edmund Zagorski for October 1, 2018 and David Earl Miller for December 6, 2018.] 

Is Racially Biased Testimony Wrongly Subjecting Intellectually Disabled Defendants to the Death Penalty?

The U.S. Supreme Court's 2002 decision in Atkins v. Virginia categorically bars states from executing any person who has Intellectual Disability. (Daryl Atkins is pictured.) However, as reported in recent stories in Pacific Standard Magazine and the newspaper, The Atlanta Black Star, some states have attempted to circumvent the Atkins ruling by using social stereotypes and race as grounds to argue that defendants of color are not intellectually disabled. Prosecutors in at least eight states have presented opinions from expert witnesses that "ethnic adjustments" should be applied to IQ tests and tests of adaptive functioning that would deny an intellectual disability diagnosis to Black or Latino defendants who, if they were White, would be considered intellectually disabled and ineligible for the death penalty. "Ethnic adjustments" typically take one of two forms. One adjustment purports to compensate for perceived racial bias in IQ testing by boosting the defendant's IQ scores. A second form of adjustment is determining, based upon the expert witness's subjective views about a defendant's social conditions and culture, that impairments in day-to-day functioning that would be considered adaptive deficits for White defendants are not as rare for a person with the defendant's racial, ethnic, and socio-economic background, and so are not evidence of intellectual disability. Robert M. Sanger, a trial lawyer and professor of law and forensic science at Santa Barbara College of Law in California who wrote the 2015 law review article IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins called the use of these adjustments "outrageous." “What these so-called experts do," Sanger says, "is say that, because people of color are not as likely to score as well on IQ tests, you should, therefore, increase their IQ scores from 5 to 15 points to make up for some unknown or undescribed problem in the test.” Sanger has documented the use of ethnic adjustments by prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio. “The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound,” Sanger wrote. IQ scores, he says, are affected by a variety of  environmental factors "such as childhood abuse, poverty, stress, and trauma[, that] can cause decreases in actual IQ scores." Because people who experience these environmental factors "disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death." Moreover, the courts have repeatedly rejected the adjusting of test scores on the basis of race in cases that would benefit racial minorities, Sanger said, most prominently in cases in which African-American applicants for police or firefighting jobs had alleged that cities were using racially discriminatory tests. Sanger says "it’s sort of outrageous that you can adjust scores upward so you can be killed, but not so you can get a job.” In 2011, the Texas State Board of Examiners of Psychologists reprimanded psychologist Dr. George Denkowski for his misuse of ethnic adjustments in death-penalty cases. As part of an agreement dismissing disciplinary charges against him, Denkowski—who testified against sixteen Texas death-row prisoners, several of whom have been executed—was fined $5,500 and agreed that he would never again conduct intellectual disability evaluations in criminal cases. On January 4, 2018, Philadelphia prosecutors, who had used Denkowski's ethnic adjustments as part their argument that Pennsylvania death-row prisoner Jose DeJesus was not intellectually disabled, agreed that DeJesus should be resentenced to life. Ethnic adjustments are only some of the non-scientific barriers states have erected to avoid compliance with Atkins. In 2014, the U.S. Supreme Court ruled in Hall v. Florida that Florida had unconstitutionally emplyed an IQ cut-off score to reject claims of intellectual disability. In 2017, in Moore v. Texas, the court rejected the state's use of a set of unscientific lay stereotypes to claim that a defendant did not have the adaptive deficits necessary to be considered intellectually disabled. The Court called Texas's approach an "outlier" that, "[b]y design and in operation, ... create[s] an unacceptable risk that persons with intellectual disability will be executed." Moore reiterated that a court’s determination of intellectual disability in a death-penalty case must be “informed by the medical community’s diagnostic framework."

Retired Lt. General: Exclude Mentally Ill Vets from the Death Penalty

Saying that the death penalty should “be reserved for the ‘worst of the worst in our society,’” retired Marine Corps Lieutenant General John Castellaw (pictured) has urged the Tennessee state legislature to adopt pending legislation that would bar the death penalty for people with severe mental illnesses. In an op-ed in the Memphis newspaper, The Commercial Appeal, General Castellaw writes that the death penalty “should not be prescribed for those with severe mental illnesses, including those people with illnesses connected to their military service.” A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service. “[A]s many as 30 percent of the veterans from Vietnam through today’s conflicts suffer from post-traumatic stress disorder (PTSD),” General Castellaw writes, some of whom have not “receive[d] the care they needed and the care our country promised.” The General tells the story of Andrew Brannan, a decorated Vietnam War veteran who was diagnosed with service-related PTSD and bipolar disorder. Brannan was convicted and sentenced to death in Georgia for killing a deputy sheriff during a traffic stop in which he had behaved erratically and had begged the officer to shoot him. Despte no prior criminal record and having a 100 percent disability rating from the Veterans Administration, Georgia executed Brannan. His final words were, “I am proud to have been able to walk point for my comrades, and pray that the same thing does not happen to any of them.” In arguing for a mental-illness exemption from the death penalty, General Castellaw writes, “[a]s Americans, we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. As Tennesseans, we can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness.” The Tennessee legislature is expected to consider Senate Bill 378 and House Bill 345 later this year. A similar bill under consideration in Ohio has recently received the support of the Cleveland Plain Dealer editorial board. In a January 3 editorial, the newspaper called Ohio Senate Bill 40 “common-sense, bipartisan—and humane.” Under both the Tennessee and Ohio proposals, people who commit murder but are found to have one of five severe mental illnesses would face a maximum sentence of life without parole.

50 Years After Historic Confirmation to Supreme Court, Thurgood Marshall's Legacy Continues To Shape Future

Fifty years ago today, Thurgood Marshall (pictured) was confirmed as the nation’s first African-American Supreme Court Justice. Marshall’s legacy is indelibly linked to his historic victory in 1954 as counsel in Brown v. Board of Education, breaking down the barriers of "separate but equal" segregated public education. But he is equally associated with his representation of capital defendants in racially charged cases in the Jim Crow South and his longstanding belief—first articulated in a concurring opinion in the Court's landmark 1972 decision in Furman v. Georgia striking down all existing death-penalty statutes—that "the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." A grandson of slaves and a survivor of an attempted lynching by Tennessee police officers, Marshall devoted his life to ensuring that all people, irrespective of race, enjoyed the rights of full citizenship and the equal protection of the law. This inexorably drew him to the issues of lynching and capital punishment. Seven days after the Baltimore native received his law license in October 1933, a 23-year-old intellectually disabled black man, George Armwood, who had been in custody accused of the attempted assault and rape of an elderly white woman, was lynched in nearby Somerset County, Maryland. Marshall was one of ten lawyers to petition the governor seeking anti-lynching legislation and call for an investigation into state police involvement in the lynching. Marshall won his first Supreme Court case in 1940, arguing Chambers v. Florida, which established that coerced confessions obtained by police through duress and violence are inadmissible at trial. That year, he founded the NAACP Legal Defense and Educational Fund and served as its first Director-Counsel, representing numerous black defendants charged with crimes in Southern courts. In 1941, Marshall represented W.D. Lyons, an illiterate 21-year-old black sharecropper beaten into confessing to murdering a white family and burning down their home. Enduring racial epithets from an initially hostile white community, Marshall subjected the police who had framed Lyons to withering cross-examination and showed that they had obviously lied on the stand. Lyons was convicted and—after the U.S. Supreme Court denied his appeal—executed, but historians say the case awakened Marshall to the ability of lawyers to empower oppressed communities. Later, Marshall won retrials for three young African-American men who had been falsely accused of raping a 17-year-old white woman in Lake County, Florida. Two of the "Groveland Four" (a fourth young man charged in the case had been lynched by a white mob after escaping from custody) were wrongly sentenced to death; one of them was murdered and the other shot several times by a sheriff while being transported to their retrial. The surviving defendant was convicted and resentenced to death, but received a last-minute commutation. The third defendant—who was 16 at the time—received a life sentence. In April 2017, the Florida legislature issued an apology for the killings and wrongful convictions and asked Governor Rick Scott to issue posthumous pardons for the four. In November 1946, Marshall nearly was murdered. Tennessee law enforcement intercepted his car and placed him in the back of an unmarked car after he had won an acquittal for one of 25 black man charged with riot and attempted murder in the wake of local racial violence. They drove him down isolated roads and, Marshall later said, "were taking me down to the river where all of the white people were waiting to do a little bit of lynching." A white lawyer and a white journalist saw the abduction and followed the unmarked car, foiling the lynching. The Legal Defense Fund won acquittals in 23 of the 25 Tennessee riot cases. Marshall wrote in his concurrence in Furman that "[i]t is evident ... that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society." He firmly believed that the public would do away with the punishment if they understood the facts of how the death penalty actually was applied. The question for him in Furman was "not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”

Report Finds High Levels of Misconduct in Four Top Death Sentencing Counties

Four counties that rank among the most aggressive users of capital punishment in the United States have prolonged patterns of prosecutorial misconduct, according to a new report by the Harvard-based Fair Punishment Project. The report, "The Recidivists: Four Prosecutors Who Repeatedly Violate the Constitution," examined state appellate court decisions in California, Louisiana, Missouri, and Tennessee from 2010-2015, and found that prosecutors in Orange County, CAOrleans Parish, LASt. Louis City, MO; and Shelby County, TN—all of which currently face allegations of significant misconduct—ranked among the most prolific perpetrators of misconduct in their respective states. Orange and Shelby counties ranked 7th and 13th among the 2% of counties responsible for a majority of death-row prisoners in the U.S. as of January 2013, each having more individuals on their death rows than 99.5% of all counties in the country. In the midst of a scandal on an illegal, multi-decade practice of placing informants next to targeted prisoners to attempt to extract confessions from them, Orange County imposed more death sentences from 2010-2015 than all but five other U.S. counties. St. Louis City ranked 10th in executions from 1976-2012, and Orleans Parish has long been known for its prosecutors' failures to disclose exculpatory evidence to capital defendants, including three cases that have been the subjects of decisions by the U.S. Supreme Court. The statewide misconduct rankings produced by the Fair Punishment Project show that these counties are outliers not only in their heavy use of the death penalty, but also in their patterns of prosecutorial misconduct. Among the types of misconduct found by appellate courts were withholding exculpatory evidence, improper arguments at trial, and hiding deals and favorable treatment offered to informants in exchange for their testimony. In one case from St. Louis, prosecutors: suppressed evidence in the death-penalty trial of Reginald Clemons that would have supported Clemons' claim that he confessed only after having been beaten by police; never disclosed the existence of a rape kit that could have identified the perpetrator; and presented testimony in a co-defendant's trial that another person had committed acts attributed to Clemons at his trial. Longtime prosecutor Nels Moss, Jr. also advised police officers to omit certain observations that were initially included in their reports. Clemons was convicted and sentenced to death, but was awarded a new trial—scheduled for 2018—because of this misconduct.

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