STUDIES: Elected High Court Judges Half as Likely as Appointed Judges to Overturn Death Sentences

A Reuters analysis of more than 2,000 state Supreme Court rulings in capital cases has found that elected judges are much less likely to overturn death sentences than judges who are appointed. In the 15 states in which the state Supreme Court is directly elected, justices overturned death sentences only 11% of the time as compared to a 26% reversal rate in the 7 states in which justices are appointed. 15 states have a hybrid system, where justices are initially appointed, but must then face election to remain on the bench; those states fell in the middle, with a 15% reversal rate. Tennessee Justice Gary Wade, who ran television ads during his re-election campaign touting the court's 90% rate of affirming death sentences, told Reuters, "Those who were employed to run the campaign believed that it was important for this court to have a demonstrated record, or willingness, to impose the death penalty." An Ohio defendant, Ashford Thompson, is arguing that politics played a role in the Ohio Supreme Court's 4-3 decision to uphold his death sentence in a decision rendered less than a week before two of the majority justices faced re-election. The justice who wrote that opinion was the beneficiary of a $600,000 advertising campaign that featured television ads praising her previous votes to uphold death sentences. Dissenting Justice William O'Neill wrote, "The majority’s failure to seriously engage in the weighing process provides yet another reason why, in my opinion, Ohio’s system of imposing and reviewing death sentences is unconstitutional."

An Historical Look at Nitrogen Gas, the Electric Chair, and the Firing Squad as Execution Alternatives

With lethal injection in administrative crisis and facing constitutional challenges, some states are looking towards abolition and others towards alternative methods of execution. In an article for The Marshall Project, reporters Maurice Chammah, Andrew Cohen, and Eli Hager explore the histories of nitrogen gas, electrocution, and the firing squad -- different methods of execution three states have recently adopted as alternatives to lethal injection in the event lethal injection is declared unconstitutional or execution drugs become unavailable. The article notes the similarities between promises made by proponents of each method that their method would be the most efficient, painless, and humane execution procedure, and discusses the ambivalence engendered by each execution method.  The article reports that experts have criticized the manner in which Oklahoma researched and adopted its nitrogen gas alternative as “cavalier.” "What Oklahoma is doing is not a scientific endeavor,” Emory University anesthesiologist Joel Zivot is quoted as saying. “It’s nonsense, empirically.” Highlighting the historical context of the electric chair in light of Tennessee's decision to reintroduce electrocution, the article chronicles the origins of the method and contrasts Thomas Edison's promise that the electric chair would be painless and efficient with stories of botched electrocutions. Finally, the article turns to the firing squad, which it quotes Utah Gov. Gary Herbert as calling “a little bit gruesome," even as he approved the law that brought it back as an option in his state. It recounts the unique historical relationship between Utah's use of the firing squad and some forms of Mormon theology. Finally, it contrasts the efficiency of the firing squad with the visceral responses it produces: in the words of Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, “We mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn’t death by firing squad, with mutilation and bloodshed, more honest?”

VICTIMS: 20 Years After Urging Death Sentence, Man Seeks to Save His Mother's Killer

At age 6, Clifford O'Sullivan (pictured with his mother) testified in favor of a death sentence for the man who had killed his mother. That man, Mark Scott Thornton, is on California's death row. Now, 20 years later, O'Sullivan says he believes Thornton's life should be spared. When he took the witness stand during the sentencing phase of Thornton's trial, O'Sullivan told the jury, "All I think is that what the bad man did to my mom should happen to him. It's really sad for my family 'cause she was one of the greatest mothers I've met." In the years that followed, O'Sullivan struggled to heal from his mother's death, experimenting with drugs and alcohol and even committing burglary as a teen. Today, he is an emergency room nurse in Nashville. In an interview with The Tennessean, he says he believes only a "hair-thin" difference in circumstances stopped him from ending up like Thornton. O'Sullivan also has become disillusioned with the death penalty, saying, "It certainly doesn't do the two things it's supposed to do. Offer retribution and deterrence." In 2014, he met Thornton, and the men spent 5 hours talking about their lives. The meeting cemented O'Sullivan's belief that Thornton should not be executed. "If they put him up for a date I would stop it, just like I started it," O'Sullivan says. "It wouldn't happen. Over my dead body."

REPRESENTATION: Tennessee Inmate Faces Execution Because of Lawyer's Failures

A forthcoming article in the ABA Journal reveals the tragic admissions of failure by a well-known defense lawyer that led to a death sentence and potential execution of Abu-Ali Abdur'Rahman (pictured) in Tennessee.  Lionel Barrett, who represented Abdur'Rahman in 1987, now takes full responsibility for his lack of attention to critical details and for having his client end up on death row. Looking back on the case 24 years later, Barrett said, "It was the perfect storm. Everything I could have done wrong, I did … Abu-Ali is on death row because of me. I failed him."  Barrett was widely recognized as one of the best criminal defense attorneys in Tennessee, but he was overworked and burned out, and his financial troubles compelled him to accept more cases than he could handle. A series of interoffice memos regarding Abdur'Rahman's case reveals that Barrett was not adequately prepared to try the case. He failed to file important motions that would have granted him more time and resources to prepare for the case, and by the time proceedings began, Barrett had not talked to a single eyewitness, conducted any of his own investigations or explored evidence of his client's mental illness. He also never ordered testing on key pieces of evidence, including a coat owned by the defendant that allegedly had blood stains from the victims. It later turned out that the stains were paint from Abdur'Rahman's work, and Barrett unknowingly allowed this critical piece of exculpatory evidence to become the most convincing evidence of guilt.

Anesthesiologists Raise Concerns About New Drug for Lethal Injections

A nationwide shortage of sodium thiopental, a key drug used in executions around the country, has forced states to consider alternative drugs for their lethal injections. Tennessee, where 86 inmates are facing execution and sodium thiopental is in short supply, is considering using pentobarbital instead. Oklahoma has already executed three inmates using the new drug as part of a 3-drug protocol. The use of pentobarbital, however, has drawn concerns from some anesthesiologists who said the drug has not been used to put patients to sleep and has not been tested for executions. Dr. David Varlotta, who is on the board of directors of the American Society of Anesthesiologists, noted that there are significant differences between the two drugs, and said pentobarbital "is not used in a clinical setting for clinical anesthesia." Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, said, "Sodium thiopental has been used millions of times, for 90% of operations, for 30 years. Pentobarbital has almost never been used for induction of anesthesia. If you look at the literature, there's one report from the '40s, maybe 2. We're experimenting, and we're taking a huge risk here just for the big desire to make sure we're killing people."

Lawsuit Challenges FDA's Inaction on Lethal Injection Drugs in Many States

On February 2, the national law firm of Sidley Austin LLP filed a suit against the Food and Drug Administration (FDA) in federal court on behalf of six death row inmates from Arizona, California, and Tennessee.  The suit seeks to compel the FDA to bar the importation or use of unapproved sodium thiopental, a drug used by most states in lethal injections, but no longer available in the U.S.  The plaintiff's brief states that, following a nationwide shortage of sodium thiopental in 2010, the FDA illegally allowed prison officials to obtain the lethal injection drug from sources outside of the U.S., while refusing to investigate the safety and purity of the imported drugs.  The inmates are represented by Bradford A. Berenson, a former associate counsel to President George W. Bush and a partner at Sidley.  In a statement released by the law firm, Berenson said, "The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law."  Berenson, a supporter of the death penalty, also said that the lawsuit is "not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences."  Read full press release from Sidley Austin LLP and read Complaint filed against FDA.

CLEMENCY: Governors in Missouri and Tennessee Grant Clemency to Inmates Facing Imminent Execution

On consecutive days, Governor Jay Nixon of Missouri and Governor Phil Bredesen of Tennessee granted clemencies to death row inmates facing imminent execution in their respective states. In Missouri, Gov. Nixon commuted the death sentence of Richard Clay, who was scheduled for execution on January 12. In Tennessee, Gov. Bredesen granted clemency to Edward Jerome Harbison, thus averting his execution on February 15. Both inmates now face life in prison without parole. Clay and his supporters maintained that he was innocent of a 1994 murder-for-hire murder.  In a statement released by the governor's office, Nixon said that Clay's "involvement in this crime is clear," but chose to exercise his executive authority after “having looked at this matter in its entirety and after significant thought and counsel.” In Tennessee, Harbison was charged with a murder that occurred in 1983. He initially confessed to the crime but later claimed he was coerced after authorities threatened to arrest his girlfriend and put her children into foster care. Of the commutation, Gov. Bredesen said, "It's obviously a heinous crime, but when I compare it to others I don't think it rose to the level of a death penalty crime."  Gov. Nixon was elected in 2008, having served as Attorney General while Clay was being prosecuted.  Gov. Bredesen is leaving office.

Legislative Activity - Tennessee