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

Posted: January 5, 2018

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.

 

Pledging No Death Penalty, Larry Krasner Sworn In As Philadelphia's District Attorney

Posted: January 4, 2018

Saying “[a] movement was sworn in today,” long-time civil-rights lawyer Larry Krasner (pictured)—who pledged to end Philadelphia's use of the death penalty—took the oath of office on January 2 as district attorney in a county that only five years ago had the third largest death row of any county in the country. Krasner's inaugural address put a face on the “[t]ransformational change in criminal justice" he had called for during the election, saying it was time to begin “trading jails—and death row—for schools,” “jail cells occupied by people suffering from addiction for treatment and harm reduction,” and “division between police and the communities they serve for unity and reconciliation.” Krasner's election has drawn national attention, as social-justice activists focus on new strategies to bring about social change. The Los Angeles Times placed Krasner among "a growing list of district attorneys around the country ... who have declared that their role isn’t simply to prosecute, but to protect defendants from the excesses of the criminal justice system." The American Prospect described "[t]he relatively quick swing from a death penalty devotee to a crusading reformer at the helm of a major American city’s DA office [as] both a distillation of a long-brewing shift in the politics of crime—away from the standard tough-on-crime bromides and toward a smarter approach to justice—and emblematic of a new recognition from progressives that electing allies into DA offices could be one of the most effective ways to reform the system from the inside." Since 2015, "reform" prosecutors have been elected to replace prosecutors in counties historically known for their aggressive use of the death penalty, including Harris (Houston), Texas; Duval (Jacksonville), Orange (Orlando), and Hillsborough (Tampa), Florida; Caddo Parish (Shreveport), Louisiana; and Jefferson (Birmingham), Alabama. But Clarise McCants, campaign director for the racial-justice organization, Color of Change, is eyeing upcoming district attorney races in 2018, saying “[t]he small number of [reform-minded] prosecutors we have elected so far is nothing compared to the kind of impact we could have.” Krasner takes the reins of an office most recently headed by Ronald CastilleLynne Abraham, and Seth Williams. Castille served as district attorney from 1986-1991, obtaining 45 death sentences and then participating in appeals in those cases after being elected to the Pennsylvania Supreme Court. Abraham was dubbed “America's Deadliest DA,” obtaining 108 death sentences in her 19 years as district attorney between 1991 and 2009. She was replaced by Williams, who resigned after being convicted in 2017 of corruption charges. Krasner's election culminates two decades of dramatically declining death penalty use in Philadelphia. Death sentences, which averaged 9.9 per year in the 1990s, have fallen to an average of fewer than one per year this decade. 

 

Virginia Governor Commutes Death Sentence of Mentally Incompetent Death-Row Prisoner

Posted: January 3, 2018

Virginia Governor Terry McAuliffe commuted the sentence of mentally incompetent death-row prisoner William Joseph Burns (pictured) on December 29, 2017, after multiple mental-health experts said Burns was unlikely to regain sufficient competency for his death sentence to ever be carried out. Burns, whose sentence was converted to life in prison without the possibility of parole, became the fifth death-row prisoner to have been granted clemency in the United States in 2017. Burns was convicted and sentenced to death for the 1998 rape and murder of his mother-in-law. Showing signs of severe mental illness, Burns was found incompetent to stand trial in 1999, delaying his trial for a year. At trial, his lawyers presented mitigating evidence that Burns had mental retardation (now known as intellectual disability), but the jury returned a death verdict. The Virginia Supreme Court upheld the conviction and sentence in 2001, but in 2002, the U.S. Supreme Court declared that the use of the death penalty against people with mental retardation violated the Eighth Amendment. In 2005, the Virginia Supreme Court ruled that Burns had presented sufficient evidence of intellectual disability to warrant a trial on that issue. However, Burns exhibited continuing signs of severe mental illness and a court-appointed mental-health expert determined that he was actively psychotic, spawning more than a decade of litigation over his competency to stand trial. In issuing the commutation, McAuliffe wrote that the “continued pursuit of the execution of Mr. Burns, both as a matter of constitutional principle and legal practicality, cannot be justified.” McAuliffe noted that Virginia has already spent more than $350,000 in "treating, transferring, monitoring, and litigating whether Mr. Burns has the mental competence to conduct a trial on whether he has the intellectual capacity to be executed" and mental-health experts "have confirmed that Mr. Burns is not likely to be restored to competence. ... As of now," the Governor said, "there is no lawful way to impose the death sentence on Mr. Burns, and there is no clear path for that ever being possible." The commutation, McAuliffe said, "brings finality to these legal proceedings; it assures the victim’s family that Mr. Burns will never again enjoy freedom, but without the torment of post-trial litigation; and it allows the Commonwealth to devote its resources towards other cases. In my view, this is the only just and reasonable course." Virginia governors have commuted ten death sentences since the Commonwealth reinstated its death penalty in October 1975. In 2000, following DNA testing that proved his innocence, Governor Jim Gillmore granted an absolute pardon to Earl Washington. Most recently, Governor McAuliffe commuted the death sentence of Ivan Teleguz five days before his scheduled April 25, 2017 execution, noting that the prosecution's use of false evidence to influence the jury's sentencing determination resulted in a death verdict that “was terribly flawed and unfair.”

 

Former Death-Row Prisoner Exonerated in Illinois, Seized by ICE

Posted: January 2, 2018

Former Illinois death-row prisoner Gabriel Solache (pictured), a Mexican national whose death sentence was one of 157 commuted by Governor George Ryan in January 2003, was exonerated on December 21, 2017 after twenty years of wrongful imprisonment, but immediately seized by agents of the U.S. Immigration and Customs Enforcement Agency. Cook County prosecutors dropped charges against Solache and his co-defendant Arturo DeLeon-Reyes after Circuit Court Judge James Obbish overturned their convictions, finding that disgraced Chicago detective Reynaldo Guevara had told “bald-faced lies” under oath when he testified to having no memory of interrogating Solache and DeLeon-Reyes and denied having beaten false confessions out of the men. DeLeon-Reyes also was immediately arrested by ICE agents. Solache and DeLeon-Reyes were convicted in separate trials, and Solache was sentenced to death, for the 1998 stabbing deaths of Jacinta and Mariano Soto during a home robbery. No physical or biological evidence linked either man to the murder, but they were convicted based upon confessions they have long said were coerced by Guevara over the course of three days of interrogation in which they were denied their right to consular assistance by the Mexican government, deprived of sleep, and given little food or drink until they falsely implicated themselves. Solache's purported confession was written entirely in English by an assistant state attorney who did not speak Spanish. Solache did not speak or read English and said that Guevara never translated the written statement for Solache before getting him to sign it. Guevera has been accused of framing defendants of murder in 51 cases. According to Northwestern University's Center on Wrongful Convictions, Solache and DeLeon-Reyes are the sixth and seventh defendants freed in the last two years as a result of misconduct by Guevara. To date, nine defendants have been released in cases in which Guevara was alleged to have beaten them or coerced witnesses into providing false testimony. Solache is the 161st person wrongly convicted and sentenced to death in the United States to have been exonerated since 1973, and the twenty-first in Illinois. At least a dozen of those exonerations have involved misconduct by Chicago police, including five cases in which the notorious "Burge Squad" beat or tortured confessions out of innocent defendants. Aaron Patterson, Leroy OrangeMadison Hobley, and Stanley Howard—members of the "Death Row Ten," who asserted that their convictions were the product of false confessions obtained as a result of police torture at the hands of notorious Chicago Police Commander Jon Burge—received full pardons by Governor Ryan. Ronald Kitchen, another member of the Death Row Ten, was exonerated in July 2009. Among the tactics the "Burge Squad" employed to elicit confessions were shocking suspects in the genitals with cattle prods, beating suspects over the head with phonebooks, and pointing guns in the faces of minors.

 

Judge Finds New Jersey Federal Capital Defendant Intellectually Disabled, Bars Death Penalty

Posted: December 28, 2017

A New Jersey U.S. district court judge has barred federal prosecutors from seeking the death penalty against Farad Roland, finding that Roland is intellectually disabled and therefore ineligible for capital punishment. After an eighteen-day evidentiary hearing featuring sixteen witnesses, Judge Esther Salas ruled on December 18 that Roland—accused of five killings in connection with a drug-trafficking gang—had "abundantly satisfied his burden of proving his intellectual disability by a preponderance of the evidence." In 2002 in Atkins v. Virginia, the U.S. Supreme Court held that subjecting individuals with intellectual disability to the death penalty violated the Eighth Amendment's prohibition against cruel and unusual punishments. Judge Salas's ruling came almost exactly ten years after New Jersey abolished the death penalty, and ended efforts to obtain what would have been the first death sentence imposed in the state since abolition. The federal government may seek the death penalty in federal court under federal law, irrespective of whether the state in which the federal trial takes place itself authorizes capital punishment. The only other federal death-penalty case that has been tried in New Jersey ended with a life sentence in May 2007. Roland's was the third federal capital case in the last year in which a defendant was spared the death penalty because of intellectual disability. In June 2017, federal prosecutors announced they would not appeal a New York federal district court's determination that former death-row prisoner Ronell Wilson is intellectually disabled. Wilson had faced a capital resentencing hearing after his 2007 federal death sentence was overturned as a result of prosecutorial misconduct. In January 2017, President Barack Obama commuted the death sentence of Abelardo Arboleda Ortiz, in part because of evidence that Ortiz is intellectually disabled. Judge Salas found that Roland had satisfied all three prongs of the test to determine Intellectual Disability: "(1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70—adjusted for the standard error of measurement); (2) adaptive deficits (the inability to learn basic skills and adjust behavior to changing circumstances); and (3) the onset of these deficits while still a minor." Accordingly, she concluded, "Roland is ineligible for the death penalty under the Eighth Amendment and the FDPA [Federal Death Penalty Act]." In comments to NJ Advance Media, Roland's attorney, Richard Jasper, called Judge Salas's decision "a thorough, detailed, thoughtful 135 page opinion that speaks for itself."

 

Death-Row Exoneree's Foundation Fights Wrongful Convictions, Provides Post-Release Health Care

Posted: December 27, 2017

When Anthony Graves (pictured) was exonerated from death row in Texas in 2010, he decided that he would use his personal experience as a catalyst for redressing the "injustice of the justice system." After receiving $1.45 million as compensation for the 18 years he was wrongly incarcerated, including twelve years on death row, the nation's 139th death-row exoneree created the Anthony Graves Foundation. Over the past two years, Graves has personally contributed more than $150,000 of his compensation funds as part of the fledgling nonprofit's expenditures towards freeing other innocent prisoners and providing health-care services to recently released prisoners who lack the means to pay for medical treatment. Graves was wrongly convicted and sentenced to death as a result of what the Texas State Bar described as "egregious" prosecutorial misconduct. Now disbarred for his actions, prosecutor Charles Sebesta presented false testimony from a witness implicating Graves in the murder while at the same time withholding from the defense a confession that the prosecution's witness had actually committed the murder. As in most death-row exonerations, there was no DNA evidence in Graves's case. Upon his release, Graves helped in the exoneration of Alfred Dewayne Brown, another no-DNA case, in which prosecutors suppressed a phone record that showed Brown could not have been at the scene of the crime when the murder occurred. The Graves Foundation then started The Humane Investigation Project, focusing on labor intensive non-DNA cases that Innocence Projects rarely take. “A lot of guys fall through the cracks because of the criteria of these projects,” Graves said. “I’d be dead today, because I had no DNA in my case.” Among other cases, Graves is currently working to exonerate still-incarcerated former Texas death-row prisoner Nanon Williams. When Graves was freed, doctors told him his arteries were clogged, the result of poor diet and health care. Because of his compensation settlement, however, he had money to see a doctor—a rarity for most people recently released from prison. Recognizing the severity of the health crisis faced by released prisoners, the Graves Foundation opened a small health clinic in March 2016 to provide low-cost and free care to those recently freed and to their families. Paul Cates, spokesman for the New York-based Innocence Project, said many exonerees feel like Graves, compelled to fight for change in a criminal justice system that wrecked their lives. “It doesn’t destroy their souls, and almost all of them somehow find a way to get beyond what happened,” Cates said. The prospect of helping those whose shoes he's been in continues to motivate Graves. “I always stay positive,” he said. “That’s how I came home.” It is a worldview summed up in the title of Graves's new book, Infinite Hope: How Wrongful Conviction, Solitary Confinement, and 12 Years on Death Row Failed to Kill My Soul, scheduled for release on January 16, 2018.

 

Alabama Cancels Cancer Surgery, Sets Execution Date for Terminally Ill Prisoner

Posted: December 26, 2017

Alabama has set an execution date for Doyle Lee Hamm (pictured), a 60-year-old man with terminal cranial and lymphatic cancer that his lawyer says has rendered his veins unusable for lethal injection. Hamm has received radiation and chemotherapy, and was scheduled for surgery to remove a cancerous lesion on December 13, but Alabama prison officials cancelled the surgery and instead informed Hamm that a death warrant had been issued scheduling his execution for February 22, 2018. In September, Hamm's attorney, Bernard Harcourt, asked anesthesiologist Dr. Mark Heath to examine Hamm to determine whether his veins would be suitable for the execution protocol. Dr. Heath found that Hamm has virtually "no accessible veins" in his arms and legs, and that his lymphatic cancer would complicate any attempts at the already challenging procedure of obtaining central vein access. Heath concluded, “the state is not equipped to achieve venous access in Mr. Hamm’s case.” In a commentary in The New York Times, Harcourt wrote that Hamm "will suffer an agonizing, bloody, and painful death” if prison officials proceed with the execution as planned. "Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner," Harcourt wrote. “Mr. Hamm’s serious and deteriorating medical condition poses an unacceptable risk that he will experience significant pain.” Andrew Cohen of the Brennan Center for Justice wrote in a December 15 commentary that Hamm's case "has come to symbolize the injustice of [Alabama's death-penalty] system. The idea that executioners want to make sure they kill Hamm before he dies of cancer, the fact that it is likely the lethal injection itself will cause him 'needless pain' before he dies, may be abhorrent but it's entirely consistent with the way state officials have handled Hamm's case for years." When Hamm was sentenced to death in September 1987, his jury did not unanimously agree on his sentence, but Alabama law permitted the trial judge to impose a death sentence based upon a jury's non-unanimous sentencing recommendation. At that time, Alabama was one of only three states to permit that practice; and now it is the only state to do so. Cohen wrote that Hamm's constitutional rights "were ignored in virtually every way" during the trial. "Witnesses changed their stories, ultimately testifying against him only after they were charged as co-defendants and made sweetheart plea deals. His trial lawyer did a miserable job during the mitigation phase, failing utterly to give jurors a fair sense of the intellectual disability, or perhaps brain damage, from which Hamm has suffered his whole life." During state post-conviction review of Hamm's case, the trial court denied his appeal by adopting verbatim an order written by the state attorney general's office, without even removing the word "proposed" from the title. In 2016, Hamm sought review of that practice from the U.S. Supreme Court, but the court declined to review his case.

 

Clark County, Nevada Losing Capital Convictions Because of Prosecutors' Race Discrimination in Jury Selection

Posted: December 22, 2017

The racially discriminatory jury selection practices of the Clark County, Nevada, District Attorney's office are now causing it to lose convictions in capital cases. In a December 18 article, the prosecutorial watchdog, The Open File, details repeated violations by Clark County death-penalty prosecutors of the constitutional proscription against striking prospective jurors from service on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new trials in Clark County cases because prosecutors violated the U.S. Supreme Court's 1986 decision in Batson v. Kentucky  by discriminatorily excluding jurors of color, including in three cases in which the death penalty had been imposed. The Open Files writes that “prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it.” In June 2014, the Nevada Supreme Court reversed the conviction and death sentence of Charles Conner, after prosecutors used six of their nine peremptory strikes against jurors of color, claiming that the jurors were “weak” on the death penalty. The court ruled that this purportedly race-neutral justification was pretextual, noting that one of the black jurors to whom prosecutors claimed the justification applied was an Air Force Reserve officer and full-time correctional officer, who had previously served in the Navy and as a police officer. The court found that the prosecutors' explanations for striking this juror were "belied by the record" and that manufacturing "[a] race-neutral explanation that is belied by the record is evidence of purposeful discrimination.” In March 2016, the court granted African-American death-row prisoner Jason McCarty a new trial after Clark County prosecutors excluded two of three eligible black jurors, pretextually attempting to justifying the strikes on the grounds that one worked in a strip club and the other had a brother with a criminal record. However, prosecuters had run detailed employment background checks on only two of the 36 potential jurors, suggesting to the court that prosecutors had not been genuinely concerned about the excluded juror's employment. The prosecutors also disparately questioned jurors whose family members had criminal histories, asking the black juror whom they struck 15 follow-up questions, while asking a similarly-situated white juror a single follow-up question. In granting McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.” In October 2017, the court also granted a new trial to third death-row prisoner, Julius Bradford, after the trial court had permitted the prosecution to strike one Hispanic and one African-American juror without providing the defense an opportunity to contest the race-based nature of the strikes.

 

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

Posted: December 21, 2017

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. 

 

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

Posted: December 20, 2017

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."

 

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