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As North Carolina Juries Reject Death Penalty, Legislators Accused of Playing Politics With Executions

For the third time since 2012, no one in North Carolina was sentenced to death in 2017. All four trials in 2017 in which prosecutors sought a death sentence ended with a jury either acquitting the defendant of capital murder or returning a lesser sentence. Despite the historical decline in death sentencing in North Carolina, two state legislative leaders, in a letter derided by editorial boards as political posturing, used the recent killing of three prison guards to demand that Governor Roy Cooper and Attorney General Josh Stein "restart" executions in the state. House Speaker Tim Moore (pictured, left) and Senate President pro-tem Phil Berger (pictured, right), claimed that Cooper’s and Stein’s purported "indifference and failure to fight the moratorium [on executions in North Carolina] endangers the lives of prison employees in close proximity to hardened murderers with nothing left to lose, who see no possibility they will face execution for killing again." Editorial reaction to the legislators' comments was swift and sharp. The Greensboro News and Record called the accusation in the letter "a vulgar insinuation unsupported by facts." The Charlotte Observer editorialized that the legislative leaders were "seeking to politicize the tragedy rather than effectively remedy the conditions that make the state’s prisons so dangerous for correctional officers." Their actions, the paper said, were akin to "creating and tolerating the conditions that allow inmates to kill prison workers, then blaming the officers’ deaths on the governor whose administration is trying to actually address the problem." Raleigh's News and Observer editorial board called Moore and Berger's letter "absurd," "shameless," and a "political gambit" that was "demagogu[ing] the death penalty." It wrote, "[n]either the governor nor the AG can restart the death penalty, which is under legal challenge on a multitude of grounds, as it is in many states. That's why no one has been put to death by the state in more than 10 years. ... [A]s long as legal challenges are pending, the death penalty can't be restarted as if the task were just like turning on a light switch." A Capitol Broadcasting Company editorial called the legislators' charges "[c]ynical and shameful" "pathetic," and "political posturing." The company said, "Regardless of how anybody feels about capital punishment ... , it will do NOTHING to help make our prisons any more secure or help to make it safer for guards and other personnel who have to work inside them." Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, provided context for North Carolina's use of the death penalty, noting that "[m]ore than three-quarters of death row inmates were sentenced at least 15 years ago, in an era when North Carolina juries sentenced to death dozens of people a year under less-enlightened laws. ... Defendants on trial for their lives did not have basic protections such as qualified attorneys or laws requiring that confessions be recorded." She credits high-profile exonerations, like that of Henry McCollum, for contributing to the reduction in death sentences in the state. “There are some elected officials in North Carolina who still like to talk about the death penalty for political purposes, but that’s about the only way it’s being used anymore,” Engel said. Rob Schofield of NC Policy Watch said, "Berger and Moore would do much more for the safety and security of prison personnel if they would invest adequate resources in our corrections system."

Supreme Court of Kenya Declares Nation's Mandatory Death Sentences Unconstitutional

The Supreme Court of Kenya has declared the nation’s mandatory death sentencing procedures unconstitutional. In a December 14, 2017 ruling that could affect 7,000 death-row prisoners, the high court overturned Section 204 of Kenya's Penal Code, which required that judges impose death sentences upon conviction of murder or armed robbery. The decision resolves conflicting rulings by the country's lower courts of appeal, and grants new sentencing hearings to those currently sentenced to death. Death-row prisoners Francis Karioko Muruatetu and Wilson Thirimbu Mwangi had challenged Kenya's mandatory death penalty, arguing that compulsory imposition of the death penalty violated the independence of the judiciary by requiring judges to impose a sentence that was pre-determined by the legislature. According to Fred Ngatia, one of the pair's lawyers, the practice “fouls the doctrine of separation of powers” by preventing judges from weighing mitigating factors. The defendants also argued that depriving judges of discretion over whether to impose a death sentence violated the right to a fair trial and constituted an arbitrary deprivation of life. The court’s justices agreed and directed the Attorney-General, the Director of Public Prosecutions, and other government agencies to speedily review all capital cases of murder and armed robbery. In 2010, Kenya’s Court of Appeal ruled in favor of death row prisoner Geoffrey Ngotho Mutiso, who had challenged the mandatory death sentence provision on the grounds that it denied judges the opportunity to consider mitigating circumstances that could spare a defendant's life. Three years later, a different panel of the appeals court restored the controversial provision. Oluwatosin Popoola, Amnesty International’s Adviser on the Death Penalty, said the Supreme Court's ruling is a step towards abolishing the “cruel and inhumane” punishment. “It’s now time for the Kenyan authorities to take the required legal steps to abolish the death penalty fully and join the 105 countries that have completely consigned the punishment to history,” he said. Kenya has not executed anyone since 1987 when Hezekiah Ochuka was convicted of treason and hanged for participating in an attempted coup. In 2009, President Mwai Kibaki commuted the sentences of more than 4,000 death prisoners to life. In 2016, President Uhuru Kenyatta commuted the death sentences of 2,747 death-row prisoners to life. The Death Penalty Project, an international non-governmental organization that works to promote and protect the human rights of those facing the death penalty in British Commonwealth countries, Africa, Southeast Asia, and the Caribbean, has been litigating this issue in Kenya for more than a decade. Kenya is the thirteenth country in which it has successfully challenged mandatory death sentences. Parvais Jabbar, the Project's Co-Executive Director called the court's ruling a "momentous decision ... [that] will have a huge impact," even beyond the thousands of prisoners currently on Kenya's death row. "[W]e hope it will also pave the way for further reform of the death penalty within Kenya and the Africa region more widely,” Jabbar said.

New Jersey Marks Tenth Anniversary of Abolition of Capital Punishment

On December 17, 2007, New Jersey abolished the death penalty. On the tenth anniversary of abolition, the editorial board of the New Jersey Law Journal writes, "On the Death Penalty, New Jersey Got it Right." The editorial board wrote, “Abolition has proven its worth, in that there has been no surge of murders, a significant decline of prosecution and appeal expenses, and the elimination of unremediable judicial mistakes. [Abolition] was and remains both the right thing and the sensible thing to have done.” In August 1982, New Jersey reenacted the death penalty, six years after the United State Supreme Court decision in Gregg v. Georgia upheld the constitutionality of state capital punishment laws. However, no defendant was ever executed in the state. In January 2006, the state legislature passed a bill creating the New Jersey Death Penalty Study Commission and imposing a moratorium on executions until the commission issued its report. The study commission’s report, released on January 2, 2007, recommended abolishing capital punishment. Among other findings, the commission determined that the costs of imposing the death penalty were “greater than the costs of life in prison without parole” and that there was “no compelling evidence that the New Jersey death penalty serves a legitimate penological intent.” Less than a year later, Governor Jon Corzine signed legislation abolishing the death penalty. Murders fell in New Jersey after the moratorium and repeal bills became law, marking the first time since 1999 that New Jersey experienced a drop in murders for two consecutive years. One year after repeal, New Jersey prosecutors reported that the abolition had not hindered prosecution of the state’s most violent offenders. The Law Journal editorial board said that, after a decade, the study commission’s assessment that the death penalty was not a deterrent to murder “has proven its worth." The murder rate in New Jersey has been lower than it was in 2007 for eight of the past nine years and a 2017 DPIC study of murder rates over the last three decades found no difference in murder trends based upon whether a state had, or did not have, capital punishment. A December 15 statement released by the Catholic Bishops of New Jersey hailed the state’s abolition of the death penalty “as a victory for the dignity of life.” The Bishops wrote that while they “affirm the state’s duty to punish criminals, to prevent crime, and to assist victims,” they also “recognize the need to improve our criminal justice system and to forge a greater societal commitment to justice.” Society, they said, “has effective ways to protect itself and to redress injustice without resorting to the use of the death penalty.”

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.)

DPIC 2017 Year End Report: Death Sentences, Executions At Near-Historic Lows

Executions and new death sentences remained near historic lows in 2017, and public support for the death penalty polled at its lowest level in 45 years, according to DPIC's annual report, “The Death Penalty in 2017: Year End Report,” released December 14. Both the 23 executions and the 39 projected new death sentences in 2017 were the second lowest totals in more than a quarter-century. Four more people were exonerated from death row in 2017, bringing the total to 160 death-row exonerations since 1973. For the 17th consecutive year, the number of prisoners on the nation’s death rows fell, as the combination of exonerations, non-capital resentencings, and 
deaths by natural causes again outpaced new death sentences 
imposed. The 3-, 5-, and 10-year periods ending in 2017 had the lowest numbers of death sentences of any corresponding periods since 1976, continuing the nation’s long-term decline in the use of the death penalty. “Perhaps more than any place else, the changes in Harris County, Texas are symbolic of the long-term change in capital punishment in the United States,” said Robert Dunham, DPIC’s Executive Director. “For the first time since 1974, the county that has carried out more executions than any other did not execute any prisoner or sentence any defendant to death.” Public support for the death penalty dropped to 55%, according to an October 2017 national Gallup Poll, the lowest since March 1972. Support for the death penalty fell five percentage points nationally and 10 percentage points among Republicans since Gallup's October 2016 poll. Of the 81 scheduled execution dates in 2017, 58 (71.6%) were never carried out, either because of court ordered stays, gubernatorial reprieves or commutations, or rescheduling. The death penalty remains geographically isolated, with two states—Texas and Arkansas—accounting for
 nearly half (48%) of all executions in 2017 and another two states—Alabama and
 Florida—accounting for an additional quarter. More than 30% of the new death sentences nationwide came from just three counties—Riverside, California; Clark, Nevada; and Maricopa, Arizona. Indeed, the 27 new death sentences imposed in the other 3,140 U.S. counties and county equivalents, were fewer than even last year's historic low. The report found that an alarming 90% of the 23 prisoners executed in 2017 presented significant evidence of mental illness, intellectual disability, brain damage, severe trauma, and/or innocence. Four prisoners were executed despite substantial concerns about their guilt. (Click image to enlarge.)

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Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal Experts

As U.S. pharmaceutical companies have strengthened distribution controls on their medicines to prevent their use in executions, states have been changing their execution protocols in search of new or more readily available drugs. That search has led Nebraska and Nevada to build their execution protocols around fentanyl—the drug known for its role in the current opioid crisis in America—and the paralytic cisatracurium, which have never been used in executions before. According to a report in the Washington Post, Nevada's former chief medical officer, Dr. John DiMuro, quickly chose a never-before-used combination of drugs for the state's execution protocol based upon “the few drugs available to the prison system.” In an e-mail to the Post, the Nevada corrections department said the drug was easy to obtain. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” wrote corrections spokeperson Brooke Keast. “Nothing out of the ordinary at all.” In April, drug distributor McKesson Medical-Surgical sued Arkansas after learning that the state was using one of the medicines it obtained from the distributor as an execution drug, alleging the state had deliberately misled McKesson to believe that the purchase was for legitimate medical purposes. That lawsuit is still pending in the Arkansas courts. Dr. DiMuro said he created the untried execution protocol “based it on procedures common in open-heart surgery.” However, the protocol has spawned a new round of criticism from doctors and lethal-injection experts. Mark Heath, a professor of anesthesiology at Columbia University, told the Post that if the fentanyl or the sedative Valium—which Nevada would also administer before the paralytic—“don’t work as planned, or if they are administered incorrectly,” then the prisoner would be awake and conscious during the execution. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move” because of the paralytic drug, he said. Emory University Professor of Anesthesiology Joel Zivot said the protocol is the latest in a series of attempts by states to “obtain certain drugs, try them out on prisoners, and see if and how they die.” The states, he said, have “no medical or scientific basis” for selecting the execution drugs. Fordham University law professor Deborah Denno, a leading scholar on methods of execution, criticized the states for continuing to adopt experimental drug protocols. The reason for the change in protocols, she said, is “not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”  On November 27, a Nevada state trial court issued an inunction barring the state from using a paralytic in conjunction with fentanyl in the execution of Scott Dozier.  The state has appealed the order. 

Report: Deterrence is Based on Certainty of Apprehension, Not Severity of Punishment

The certainty of apprehension, not the severity of punishment, is more effective as a deterrent. So argues Daniel S. Nagin (pictured), one of the nation’s foremost scholars on deterrence and criminal justice policy, in his chapter on Deterrence in the recently released Academy for Justice four-volume study, Reforming Criminal Justice. Reviewing deterrence scholarship since the 1960s and five leading studies from the past two decades, Dr. Nagin concludes that evidence supporting a deterrent effect from "the certainty of punishment is far more convincing and consistent than for the severity of punishment." Moreover, he writes, "[t]he certainty of apprehension, and not the severity of the ensuing legal consequence, is the more effective deterrent." Dr. Nagin is the Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon’s Heinz College of Information Systems and Public Policy and previously chaired the Committee on Deterrence and the Death Penalty for the National Research Council of the National Academies of Science (NAS). In that capacity, he served as co-editor of the 2012 National Academies report, Deterrence and the Death Penalty. Nagin explains in his Academy for Justice chapter that although "certainty must result in a distasteful consequence" for the punishment to be a deterrent, "[t]he consequences need not be draconian, just sufficiently costly, to deter the prohibited behavior." In making policy judgments about the justification for increasingly severe sanctions, he says, "the deterrent return to increasing an already long sentence appears to be small, possibly zero." The 2012 NAS Committee found that "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates" and recommended that those deterrent studies "not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide." A February 2015 study by the Brennan Center for Justice of the dramatic drop in crime in the U.S. in the 1990s and 2000s found that the death penalty had no effect on the decline in crime

State Attorney Aramis Ayala's First Capital Prosecution Ends in Deal for Life in Prison

There will be no death penalty in the first capital prosecution authorized under the administration of Orange and Osceola County, Florida, State Attorney Aramis Ayala. In a case that rekindled the political confrontation between State Attorney Ayala and Governor Rick Scott over the use of the death penalty, Emerita Mapp (pictured) pleaded no contest on December 8 to one count of murder and a second count of attempted murder in exchange for a sentence of life without parole. The plea deal came just three days before the trial judge was scheduled to rule on Mapp’s motion arguing that the court should bar the death penalty in her case because the state attorney’s office had missed the filing deadline for seeking the death penalty. In March, State Attorney Ayala announced that her office would not seek the death penalty, saying that the use of the punishment was “not in the best interests of this community or in the best interests of justice." Scott responded by removing Ayala’s office from more than two dozen potential death-penalty cases over the course of several months, and replacing her with Lake County State Attorney Brad King. The move, which was opposed by civil rights groups and the Florida black legislative caucus, had unspoken racial undertones: Ayala, a Democrat, is Florida's only black elected state attorney; King, a Republican, is white and a vocal proponent of capital punishment. Ayala sued Scott, alleging that he had overstepped his powers, but in August 2017, the Florida Supreme Court upheld his actions, holding that Scott had acted “well within the bounds of the Governor’s broad authority.” Ayala said she respected the ruling and announced the formation of a panel to decide in which cases to pursue capital punishment. Mapp’s case was the first in which the panel had authorized the death penalty, but that authorization came 22 days after the deadline for providing notice of capital prosecution. That prompted another round of criticisms traded between Scott and Ayala as to who was to blame for missing the deadline.

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